The Totally Meaningless RFRA ‘Clarification’

The Totally Meaningless RFRA ‘Clarification’ April 2, 2015

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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