This morning, I described the potential economic cost of the backlash Indiana’s RFRA law. There was some pushback, but emailers were quickly disabused of the falsity of their statements. A few factual clarifications and a few last details will round out what some people may not understand.
First, the Indiana legislation is different from other “Religious Freedom” laws. The language of the Indiana law differs from both Federal most other state RFRA legislation:
The Indiana statute has two important differences from the federal RFRA—and most state RFRAs.
First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs (South Carolina is the lone exception). Louisiana and Pennsylvania explicitly exclude for-profit businesses from the protection of their RFRAs.
Indiana statute also contains this language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (emphasis added) Neither the federal RFRA, nor 18 of the 19 state statutes cited by Cook in the Post, says anything remotely like this; (The 1999 Texas RFRA is somewhat similar).
There are more details here.
Second, legal scholars with an expertise in laws pertaining to religious matters as well as civil liberties had warned the Indiana legislators in advance of passage that this bill’s language had problems.
Third, the Indiana legislation follows the Hobby Lobby Supreme Court case, and is such seemingly is an attempt to expand the ‘natural’ rights of corporations. This is the natural legal progression, and laws passed prior to Hobby Lobby are different in context.
Fourth, it is especially noteworthy that other states with similar religious freedom laws also have anti-gay discrimination laws. Indiana does not. This one factor has a simply tremendous difference in how such laws will be enforced. That missing element is why various companies looked at this as thinly veiled legislative discrimination.
Last, and perhaps most damning of all, the law was intended to send a message. As GLAAD showed in this revealing photograph, the backers of the bill are some of the nation’s most notorious homophobes. Despite the false protestations of Governor Pence, the invited participants to the private – not public — legislative signing ceremony is extremely revealing. Its no wonder that Pence has canceled numerous public appearances since the backlash to his legislation began. The governor’s claim the legislation had nothing to do with anti-gay motivations was revealed by Polifact as a half truth. I go further than that and call it bullshit.
While there have been prior attempts at statewide boycotts, this is the first one discussed in the era of social media. The hashtag #BoycottIndiana quickly trended to the top of Twitter. That is driving a lot of the discussion.
Consider the NCAA contract with the Hoosier state. The collegiate sports association is headquartered in Indiana, and has a deal with the state to “host men’s Final Four every five years through 2039” in Indiana. There is pressure from some quarters to relocate both the NCAA and the Final Four out of Indiana. It is a novel legal question as to whether the new law is sufficient to allow the NCAA out of that deal.
But that is what might happen in the future. There has been significant immediate response to the law. These are already having an impact on the state’s economy. If this continues, the potential impact could run into the billions of dollars:
There have been other, less specific economic threats. Yelp CEO Jeremy Stoppelman wrote “it is unconscionable to imagine that Yelp would create, maintain, or expand a significant business presence in any state that encouraged discrimination by businesses against our employees, or consumers at large.” The Indiana Chamber of Commerce has criticized the law, calling it “unnecessary.” And states such as Connecticut and Washington have banned official travel to Indiana over what they called the state’s LGBT discrimination law; San Francisco and Seattle have imposed similar travel bans.
Other localities have jumped on the controversy to court Indiana’s business community. Virginia Gov. Terry McAuliffe reached out to companies in Indiana, offering that “in Virginia, we do not discriminate against our friends and neighbors, particularly those who are supporting local businesses and generating economic activity.” both Cincinnati Council member Chris Seelbach (the first openly gay politician elected in that city) Tweeted last week that Cincinnati was recently named one of the most LGBT inclusive cities in the country and “we have taken every necessary step to make our laws fully inclusive.” Chicago Mayor Rahm Emanuel also jumped into the fray.
There have been quite a few tortured explanations for why the Indiana law isn’t discriminatory, but I won’t link to any of these. The lawyer in me finds them to be intellectually disingenuous as well as morally repugnant.