The Totally Meaningless RFRA ‘Clarification’

I‘ve been rather amused watching the goings-on in Indiana. Gov. Mike Pence, scared by the potential financial losses from the backlash against the passage of their new RFRA law, asked the state assembly to amend the bill to add a “clarification” and they are now doing so. And you know what it will change? Not a goddamn thing. There’s no final wording yet, but here’s what the Indy Star reported on it:

An early draft of the measure, still subject to negotiations, would specify that the new religious freedom law cannot be used as a legal defense to discriminate against patrons based on their sexual orientation.

The proposal goes much further than a “preamble” that was proposed earlier in the week, and, if it stands, would be the first time any protections against discrimination have been extended to gays and lesbians in state law.

But it doesn’t go as far as establishing gays and lesbians as a protected class of citizens or repealing the law outright, both things that Republican leaders have said they could not support.

The draft says that the new “religious freedom” law does not authorize a provider — including businesses or individuals — to refuse to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity, in addition to race, color, religion, ancestry, age, national origin, disability, sex, or military service.

Here’s the thing that everyone seems to forget: It was already completely legal for a company in Indiana to discriminate on the basis of sexual orientation before this RFRA+ law was ever passed (unless there was a municipality that prohibited it by ordinance; I’m talking about state law). There are absolutely no protections against such discrimination at the state level and there never have been. So if a company wanted to refuse to hire or refuse to serve someone because they thought they were gay, they didn’t need RFRA to give them that right. Which means adding language that says this law can’t be used to excuse such discrimination changes absolutely nothing. It will remain entirely legal to engage in such discrimination in Indiana until and unless they add sexual orientation to the state’s anti-discrimination legislation — and I don’t suggest holding your breath until that happens.

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  • Deacon Duncan

    On the other hand, in their fury to paint themselves as victims and martyrs, they’re going to convince most of the conservative Christians in Indiana that discrimination against gays is illegal, which will achieve de facto the protection that the law fails to provide them de jure.

  • http://www.facebook.com/eo.raptor.3 eoraptor

    It is remotely possible, I think, that a lawyer could argue this bill reflects a legislative intent to protect the LGBT community. As I dimly recall, courts are reluctant to interpret a bill such that it has no effect. Since, as you point out, this bill removes a specific defense against suits brought by a specific class, where that class apparently has no cause of action, the courts might be inclined to say LGBT people are protected.

    Of course, law school was going on forty years ago, and I haven’t practiced in twenty, I might be ridiculously wrong about this.

  • scott

    A *lot* of people believe LGBT+ rights are protected by antidiscrimination law even where they are not; if the national spotlight on the issue can get the word out that there’s still no protection, that would be valuable.

  • beergoggles

    Ed keeps forgetting the cities that have LGBT protections that the original bill ended up gutting.

  • Broken Things

    I don’t really care about the law’s wording. The fact that the god-damned bill as introduced in the first place is proof of their intent, whether it is legally defensible or not. These laws are springboards for future repression. Next up – laws protecting the rights of Christians to refuse service to blasphemous people.

  • chuckster

    Not totally meaningless Indianapolis does have protections in the city. This would prevent the state law from preempting that.

  • gshelley

    I was wondering the same thing. Doesn’t the state RFRA basically nullify the Indianapolis (and other cities) ordinances?

  • marcus

    I believe that calling these various actions, both for and against equality, meaningless is hypobole. These legislative attempts have inflamed the passions of people on every side of the issue and created an impetus for people to look at the social constructs and relationships that guide society and to make an effort to create the society that serves them best.

    Whether the legislation does what it is intended to or not, the fact that it is causing people to take action in response belies the “meaningless” label.

  • Goomba

    Conservatives are always complaining about the florist in Washington or the baker in Oregon that had to pay for their discrimination, but the only reason that these two were punished is because in those states its illegal to. Before this law was passed it was and still is perfectly legal to discriminate in 19 other states in this country, maybe now that everyone is upset about this we can get started on fixing that…

  • marcus

    Goomba @ 9 Exactly.

  • http://ahcuah.wordpress.com/ ahcuah

    @beergoggles: “Ed keeps forgetting the cities that have LGBT protections that the original bill ended up gutting.”

    I’m beginning to think that Ed never reads the comments, because this has been pointed out to him numerous times.

    And he really should know better.

  • sugarfrosted

    @11. He’s said in person he rarely reads them.

  • lofgren

    He’s responded to my comments in the comment section and in new posts, but I guess that was just coincidentally the few times that he happened to read them. I can’t blame him for not reading them, but because of those responses I was under the impression that he did.

  • abb3w

    @0, Ed Brayton

    Which means adding language that says this law can’t be used to excuse such discrimination changes absolutely nothing.

    Except it seems that the revised state law may no longer be used in court to override local municipal protections — meaning gays in Indianapolis (et cetera) are protected once more and no longer jeopardized by the RFRA-mark-II, even if gays in Ohio County (et alia) still remain unprotected. Shielding some 28% of the population (based on Wikipedia data) may be horribly inadequate, but it seems other than “nothing”.

    @11, ahcuah

    I’m beginning to think that Ed never reads the comments, because this has been pointed out to him numerous times.

    99% of it isn’t worth the trouble of reading. On the other hand, there seem to be one or two folk here who are worth reading at least a third of the time, and at least one of those has also pointed this out. (I don’t number myself among those; I’d doubt more than 5% of mine are worth the waste of disk space.) Nohow, it still may not be worth his time to pick out the comments from those folk.

  • pickwick

    But surely he has an auto-alert for whenever Modus posts?

  • Michael Heath

    abb3w writes:

    99% of it isn’t worth the trouble of reading. On the other hand, there seem to be one or two folk here who are worth reading at least a third of the time, and at least one of those has also pointed this out. (I don’t number myself among those; I’d doubt more than 5% of mine are worth the waste of disk space.)

    I think most, if not all, regular readers hear who come up with a top ten list would have abb3w on that list.

    There are some regular commenters who I never read. Unfortunately, that number is increasing at an increasing rate. I still see some of what the trolls write when a commenter I do follow quotes some of their idiocy. For me that only reinforces the maxim to not feed the trolls.

    One of the changes since the ScienceBlogs days is that some threads are now taken over by almost all trolls interspersed with only a handful of reasonable commenters trying to talk to sense. The Iran blog post is a good case in point: http://goo.gl/7z5Uzw.

  • colnago80

    I am afraid that I will have to disagree with abb3w relative to whether the comments are worth reading. I find them the most interesting part of blogs and try to read most of them. Of course, I only follow this one, Jerry Coyne’s, Phil Plait’s and Hemant’s every day, occasionally dipping into Myers and Kaveh’s. I think that Brayton is to be commended for his forbearance in not being quick with the banhammer (although I do miss Don Williams who provided me with a barrel of laughs with his ridiculous conspiracy theories; I suspect I am alone in that regard), unlike Myers for instance. As for individual commenters, I miss Prof. Henley who only very occasionally makes an appearance. I even like the blog’s resident physics professor and former math department chairman with his patented no true Scotsman shtick. The only individual I have or had a problem with is the blog’s former resident climate change denier and shill for the Koch brothers, Sir Lancelot, aka Lancifer.