Religious Liberties and Gay Rights in Indiana

by Caitlin Yoshiko Kandil

Indiana State House, courtesy of Shutterstock

Following a weeklong outcry over Indiana’s Religious Freedom Restoration Act—which was criticized for curtailing gay rights—state Republicans have now announced that they would amend the controversial religious liberty law to ensure that businesses would not be able to discriminate against gays and lesbians. But Robin Fretwell Wilson, professor of law at the University of Illinois and co-editor of Same-Sex Marriage and Religious Liberty: Emerging Conflicts, says this solution doesn’t go far enough—in part because both sides are misunderstanding the problem. Wilson spoke with Moment about the Indiana law, finding the balance between religious liberty and gay rights, and what everyone has gotten wrong about the debate.

She started off by explaining what the Religious Freedom Restoration Act (RFRA) is—and how it helps religious minorities:

“The Religious Freedom Restoration Act that these folks signed is not a bad thing. It does a lot of work for religious minorities. The easiest case would be the Amish. The Amish don’t like to put flashy stuff on their little horse-drawn buggies because they have a religious issue with that. So when the state says, ‘You have to have orange triangles,’ they come back with gray triangles. If you’ve dealt with the government, you’ve seen that sometimes they can be bull-headed instead of flexible. So the state will be like, ‘No, you can’t have a gray one, you have to have an orange one.’ And the Amish will say, ‘How about if we have a gray one with a lantern so everyone can see us at night?’ And the state will say, ‘No.’ These statutes are basically there to test the idea that the government really does need to kick around religious believers. Sometimes they need to have rules that disproportionately impact religious believers, but not all the time. These statutes are trying to make sure that the government has good reason when it adversely impacts a set of religious people or practices. Nothing wrong with that, whatsoever.”

The problem in Indiana, Wilson says, is not with RFRA itself—after all, 20 other states across the country have some version of the law—but in the intention behind its adoption and the absence of robust state protections for the LGBT community:

“Where things went south, or deeply off the radar for us, is when religious people started saying, ‘We need this RFRA,’ but their reason for needing them, according to their own selves, was to ‘stave off gay rights.’ And that’s where the problem started, because these RFRAs can’t do that. So the religious believers misunderstood what this law could do. And the gay rights folks were like, ‘What the heck, why do you even need a rule that’s going to let you discriminate against us—that’s really wrong.’ And they’re right—that is wrong. But the thing that created this discrimination, or the possibility of it, wasn’t the RFRA. Where the problem came from is that lesbians and gays aren’t given special protection in statewide law.”

Religious liberty and gay rights are not incompatible, Wilson goes on to explain, and there are several states in the country that offer proof of this, including her home state of Illinois:

“Think about Illinois. We have a RFRA—we’ve had it since 1998. We’ve had a gay rights law. We’ve had that since 2004. And there’s nothing about these two pieces of legislation that are inconsonant with each other. One doesn’t wipe out the protections of the other.”

And this is what many gay rights advocates have misunderstood about RFRA, she says:

“Really, the focus of their ire should have been, ‘What the heck, why aren’t you giving people protections like the ones that we give in Illinois?’ There will be little islands—there are six of them in Indiana—where municipalities or counties say, ‘We’ll give those protections in municipal law or a city or county ordinance.’ But there aren’t those same protections in statewide law. What does that mean? That means that if you really want to go and punish Indiana for something, the thing you should be focused on is not a RFRA, but the fact that they don’t get the basic protections of statewide law. It’s like people went off, rightfully, because there weren’t these statewide protections. But they got the object of the problem wrong. It’s not the RFRA; it was something entirely different.”

One example of how to bring together religious liberty and gay rights can be found in Utah:

“We’ve got to find some way to live together in a time of great social change, and I think that the right and decent way to get there is what happened in Utah. They extended more rights to the lesbian, gay, bisexual and transsexual community—the reddest state in America—and got it right. They protected transgender people that aren’t even protected in New York. And they did it in a piece of legislation that allowed religious people to continue to affirm the character of their faith communities. And that tells you that the extension of gay rights does not have to undercut religious liberty—quite the opposite. Religious liberty can extend gay rights. That’s how it should work.”

In addition, Wilson says that Indiana’s attempt to amend the law doesn’t go far enough to protect gay rights:

“This carve-out says, ‘Don’t even bother to litigate—we’re not going to let you win in any event.’ The way this particular statute is constructed, the particular issue at hand is, ‘Does the state have a compelling interest in saying people shouldn’t be mean to gay people?’ And the answer is yes! If you have a carve-out, it’s the same provision, it’s the same as it would have been, you’re just being exceedingly clear in the law. At a time like this, I think the Indiana legislature would have been wise to be clear in the law, i.e., say we don’t mean to undo any civil rights. It would have been far wiser to actually extend civil rights. That’s what Utah did. What they did is say, ‘Here are rights for a community that needs them, and here are rules we are drafting to say there’s nothing about the extension of gay rights to wash out the practice of faith communities.’ That’s what the Utah compromise did. This RFRA, it only says we’re trying to lock down religious freedoms, it’s not about gay rights, and now they clarified that it’s not about gay rights, but they’re still not doing anything for gay people. That’s a big contrast with Utah, and we should say, ‘Why not?’ It’s great that you’re saying this law isn’t hurting gay rights, but it’s way better to say, ‘These rights are insufficient, and we’re going to give you protections while saying these faith communities will continue to observe their faith.’”

She adds: “If you’re going to articulate your need for religious freedom as a way to keep other people down, you should expect to get crushed. And that’s what happened… They’re doing something that’s designed, consciously, to help only themselves. They’re not doing something that’s designed to help the LGBT community. And I think when we get into that trap, that we’re helping ourselves but not the other guy, we’re mis-stepping. That’s not the way we should work. We should be trying to advance the civil liberties of both communities, ideally in a single piece of legislation.”

To read more from Robin Fretwell Wilson, click here for Moment’s 2014 symposium, “Gay Rights and Religious Freedom: Can We Find Common Ground?” And for more on religious freedom and the cases that defined where we are now, click here for Moment’s 2013 symposium, “What is the Future of Religious Freedom in the United States?”