State lawmakers in Indiana may have quieted the harshest critics of their controversial religious-freedom law, but at the expense of a new fight with social conservatives.
Legislators released an amendment Thursday clarifying that businesses cannot use the new religious-freedom law to refuse to serve gay customers or same-sex couples.
Many of the business and advocacy leaders who had criticized the law offered their support for the changes, while social conservatives accused the state of eviscerating its religious-freedom statute just days after it was signed into law.
"Gutting RFRA [Religious Freedom and Restoration Act] in this manner would put people of faith in the crosshairs of government discrimination as never before. Far from being a 'clarification,' this would gut religious freedom in Indiana. Religious freedom doesn't need a 'fix,'" the Family Research Council said in a statement.
Advance America, a socially conservative advocacy group that helped get Indiana's law passed, said the fix would "destroy" the measure.
"Christian bakers, florists, and photographers would now be forced by the government to participate in a homosexual wedding or else they would be punished by the government! That's not right!" the group said in a statement.
Despite those criticisms, both chambers of the state legislature passed the new measure quickly and by 2-to-1 margins Thursday, buoyed by support from several business leaders who strongly oppose the original law.
Substantively, the proposed "fix" would address most of the specific cases in which critics feared the new law could open the door to discrimination.
"This seems to mitigate many of the risks posed by RFRA, making clear that the law is not meant to provide exemptions from antidiscrimination law," said Doug NeJaime, a law professor at the University of California, Irvine. "This is important language."
Indiana's law is modeled on the federal Religious Freedom Restoration Act, but it exceeds that law's scope in ways that could open the door to discrimination against same-sex couples.
Before state lawmakers unveiled their specific plan to address the risk of discrimination, legal experts questioned whether they would pursue a cosmetic fix—like a statement of principles that might sound relevant without carrying much legal weight—or tackle the underlying complaints about the law's structure.
The amendment lawmakers released Thursday says that Indiana's RFRA law does not give businesses a legal defense for refusing to serve customers based on factors that include race, sex, and sexual orientation. It also says that RFRA "does not authorize a provider to refuse to offer or provide services" based on the same list of factors.
Discrimination in employment or housing also cannot be justified by RFRA, the amendment states.
Discrimination against same-sex couples would remain legal in most of Indiana, as it was before the religious-freedom law passed. Indiana's statewide laws against discrimination do not include sexual orientation, and some critics of RFRA wanted that policy changed as part of any "fixes" to RFRA.
The "fix" doesn't go that far. It would essentially restore the pre-RFRA status quo—it wouldn't expand nondiscrimination laws, but it appears to effectively close off the new risks RFRA could have introduced.
The Human Rights Campaign, a leading opponent of Indiana's RFRA, said the fix would "limit the scope and application of the state RFRA in important ways," but that the state should also pass a comprehensive nondiscrimination policy.
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