On November 16th Hamilton County, IN Superior Court judge Steven R. Nation rejected a motion to dismiss a lawsuit filed by the Indiana Family Institute, Indiana Family Action, and the Indiana American Family Association challenging the “fix” to the Indiana RFRA. The fix, in part, prevents the Indiana RFRA from overriding state and local civil rights laws. It helped Indiana recover from the intense battle over it’s RFRA which led to boycotts against the state. The boycotts began because prior to the “fix” the Indiana RFRA may have allowed discrimination by for-profit entities against members of the LGBT community. The “fix” helps ensure that for-profit entities can not use RFRA to defend against discrimination claims filed under local antidiscrimination ordinances that protect against discrimination based on sexual orientation (state civil rights laws do not include such protection).
The motion to dismiss was filed by several municipalities whose antidiscrimination ordinances protect members of the LGBT community from discrimination by for-profit entities. Judge Nation’s order included a provision requiring the plaintiffs to add the state as a defendant so the state will now join the municipalities as a defendant.
The groups that filed the suit claim that the RFRA “fix” is unconstitutional because it allows religious exemptions from laws in some situations but does not allow exemptions for conservative Christian for-profit employers who discriminate based on sexual orientation and marriage in violation of local civil rights ordinances. This argument is legally flawed and should fail when addressed on the merits. The most obvious reason for this is that no one, conservative Christian or otherwise, can receive a religious exemption to antidiscrimination laws under the “fix,” and every religious person or entity, including conservative Christians, can receive exemptions to other laws that substantially burden their religion.
Perhaps more importantly this lawsuit threatens to undermine religious freedom and RFRAs nationally. As I have argued regularly, one of the great benefits to RFRA is that it protects religious people and entities from having their religion substantially burdened by laws that may not have considered them. Significantly, these accommodations usually have little or no impact on others. The very nature of antidiscrimination laws, however, demonstrates why any religious exemption will have an obvious impact on third parties, namely, the applicants and employees who are discriminated against. Even so, most state and local laws that protect based on LGBT status, including those in Indiana, have exceptions for religious organizations such as houses of worship and religious non-profits. There are good reasons for these exceptions and good reasons not to include for-profit entities in these exceptions. This lawsuit seeks to protect for-profit entities that claim a religious exemption when they discriminate in violation of local antidiscrimination ordinances.
Simply put, this will backfire! It lends credence to all of those who argue RFRAs are an excuse to discriminate, and further casts a shadow over the important role RFRAs play in helping religious individuals and entities practice religion without unnecessary government interference. This lawsuit hurts religion and hurts RFRAs. The media attention the lawsuit has garnered will harm RFRAs and proposed RFRAs in other states, and in the long run it will hurt the religious entities already exempted under local ordinances. Many partisans and advocates on the other side of the debate have argued that even traditional religious entities should not be exempted under antidiscrimination laws. If this lawsuit is successful they will have stronger arguments on their side because any exemption for religious entities might necessitate exemptions for for-profit entities. I hope that the municipalities, and now the state, are able to successfully defeat this ill conceived lawsuit before it wreaks havoc on protections for traditional religious entities and allows harm to members of the LGBT community. Moreover, religious organizations and members of the LGBT community should join together in public opposition to this lawsuit.