If you paid attention to the news last week, you probably heard about Indiana’s religious freedom law. The law, titled the “Religious Freedom and Restoration Act,” sparked a firestorm of controversy around the country. Opponents of the bill claimed that it permitted discrimination against gays, lesbians, and the transgendered. Supporters claimed that it allows people the freedom to follow their religious beliefs. What was largely missing from the debate, however, was an objective legal analysis of what the law actually said. So, I decided to use this space to do that.
What many people may find surprising is that the law says nothing about homosexuality, gay marriage, or anything else related to that topic. Nothing in the law states that a business may refuse to cater a gay wedding or treat homosexuals, or anyone else, differently. The law does, however, state that the government may not “substantially burden a person’s right to exercise religion” unless there is a “compelling government interest” to do so, and it is the “least restrictive means possible.” This means that the government cannot force someone to follow a law that would violate his or her religious beliefts unless it has a really good reason to do so. The law applies to individuals, non-profit corporations, and for-profit companies.
If the government requires a person or company to follow a law that goes against his or her legitimate religious beliefs, and that person or company refuses to comply and is punished, that person or company may use the religious freedom act as a defense for their decision not to follow the law. In some cases, they may even be able to obtain damages from the government and a reimbursement for attorneys’ fees and court costs.
These types of religious freedom acts are not uncommon—twenty states and the federal government have them. What makes Indiana’s law different, however, is that it also applies to corporations. Most of the other religious freedom acts (although not the federal act) apply only to individuals and non-profit corporations.
Opponents of this Act claim it allows a business to refuse to cater gay weddings, serve gay customers, and even to hire gay employees. Supporters of the law, however, note that in all of the states that have religious freedom acts, there are no reported cases of these acts being used to allow someone to discriminate against gays and lesbians.
Due to the outcry over this bill, last Tuesday, Indiana Governor Mike Pence said that he would try to “fix” the law so that it would not permit discrimination against gays and lesbians. Last Friday, a proposal to provide protections for LGBT customers, employees, and tenants was announced in the Indiana Senate.
Indiana does not have a bill that makes it illegal for an employer to refuse to hire an employee because of his sexual orientation. This is different from Illinois, where the Illinois Human Rights Act forbids an employer from refusing to hire or taking negative employment action against an employee because of his or her sexual orientation or gender identity.
Ultimately, the lesson employers can learn from the outcry over Indiana’s religious freedom act is that the public is sensitive to discrimination, legitimate or perceived, against gays and lesbians. Any action that may be seen as discriminatory against these groups could have serious ramifications for an employer, even if the employer is acting in accord with its religious beliefs.
