January 13, 2016
In his State of the State address last night, Governor Mike Pence failed to exhibit much needed leadership on an issue that is front and center in the minds of Hoosiers: whether Indiana will take steps during this legislative session to repair the damage incurred by RFRA last year, and finally update our civil rights law to fully protect gay and transgender Hoosiers. Instead, he made clear that even if lawmakers come to an agreement on various legislation that is currently under consideration, he will "not support any bill that diminished the religious freedom of Hoosiers or interferes with the Constitutional rights of our citizens to live out their beliefs in worship, service or work."
The American Civil Liberties Union has been a staunch advocate of religious freedom for all faiths for nearly 100 years. At a time when harmful political rhetoric would use a person's religious faith as a reason to deny entry into the United States or to warrant government surveillance, we continue to defend against government actions that violate individuals' right to freely exercise their religion. However, religious freedom does not give any of us the right to discriminate against and harm others.
We all enjoy broad and important religious liberty rights. Those rights have coexisted with civil rights protections in housing, employment, and public accommodation for gay and transgender individuals in the 17 states and Indiana cities in which they already exist. For instance, anti-discrimination laws do not threaten the right of faith leaders to determine which marriages their religious organizations officiate and bless. The ACLU would be the first to defend the constitutional rights of any pastor, rabbi, imam, priest, or other faith leader if government tried to dictate those faith-based decisions. Further, current broad exemptions allow Indiana religious organizations full discretion in whom they hire—these will not change.
But our Constitution protects both the right to freedom of religion and the right to freedom from discrimination. In the public square and marketplace, civil rights laws strike a wise and careful balance. This balance does not allow individuals to bring their beliefs about women or other protected groups into decisions about employment, housing, or public accommodations, no matter how deeply felt those religious beliefs may be.
Our civil rights laws protect groups who have historically experienced discrimination because of who they are. As each group has been added to our laws – first race and then others such as gender – we have considered and rejected exemptions that would allow business owners to refuse to serve someone based on religious objections. The same balance should be struck with respect to gay and transgender Hoosiers.
Currently there are several bills in the General Assembly that address LGBTQ rights, or lack thereof. While a few of these bills do attempt to grapple with protecting individuals from discrimination on the basis of sexual orientation and gender identity, most of these bills have wide exemptions that would allow discrimination based on religious beliefs. Many of these exemptions are the same as—or arguably go further than—the worst aspects of last year's RFRA law, codifying the right to use religion to discriminate. We witnessed the intense backlash following last year's RFRA debacle. Indiana cannot afford another international outcry that is bound to happen once it is clear that our state is attempting to codify gay and transgender Hoosiers as second-class citizens.
We will continue to work with our partners at Freedom Indiana, business and civic leaders, and leaders in the Statehouse to create meaningful legislation that fully protects individuals from discrimination.