Indiana House speaker Brian Bosma tells THE WEEKLY STANDARD that he hopes to unveil text of an amendment clarifying the state's Religious Freedom Restoration Act (RFRA) on Thursday. But it's still not clear what precisely the amendment will say.
"Senate president David Long and I pledged last Friday privately and Monday of this week publicly that we would find a legislative fix to the current concerns that, especially gay and lesbian couples or others might not receive service in the customary Hoosier hospitality that's open to all Hoosiers regardless of whatever class they may be in," Bosma said in a phone interview Wednesday. "So we've been working very diligently with community groups, corporate leaders, the LGBT community, and legislative leaders to find that language that will make this happen. We are very close. We still are working on the final details, and it is our hope to announce something tomorrow morning."
Neither the federal RFRA nor any state RFRA would allow a person a general exemption from anti-discrimination laws, but many journalists and activists have suggested that RFRA could indeed nullify such laws in Indiana. (The state does not prohibit discrimination on the basis of sexual orientation, but there are some municipalities that do.) So could a clarifying amendment simply say that nothing in RFRA invalidates state or local anti-discrimination laws?
"I think it'll be more specific," Bosma replied. "That no Hoosier, no visitor, no member of the public will be denied services or goods or facilities or public accommodations. That wasn't the intent of the law ever. Just want to make it completely clear that that's not the case."
Very few RFRA cases have had anything to do with gay rights. Most are uncontroversial cases. The legitimate question regarding RFRA and gay rights is whether or not, say, a religious florist, photographer, baker, or wedding singer could raise a RFRA defense if he or she were sued by an individual or punished by the government for declining to work a same-sex wedding.
It's not at all clear that such a defense would succeed under Indiana's RFRA as it currently stands, but would the amendment preclude someone in the aforementioned scenarios from raising a RFRA defense?
"Possibly," Bosma replied. "But they'd still have the full protection of the Indiana constitution, Article 1, Section 3, which is a strong protector of religious freedom in our state. The question is what standard would the courts apply. The RFRA statute was designed to clarify that judicial standard."
Bosma indicated the legislature doesn't have plans to include sexual orientation in a state public accommodation law. "The best solution here to draw the controversy to a close is a very surgical exclusion of the denial of services to any member of the public," Bosma said. "The surgical fix addressing that we're going to do is going to deal with raising RFRA as a defense only."
Asked one more time if the amendment might allow a RFRA defense to someone who employs and serves gay people in general, but simply declines to work a same-sex wedding for religious reasons, Bosma replied: "Well, they still have all the constitutional protections of Article 1, Section 3 of our Indiana state constitution.... What we're doing is that we're clarifying--we're working on clarifying that the RFRA statute cannot be raised as a defense against a specific class of people for the denial of services. They aren't forced to participate because they still have Article 1, Section 3 protection, if the court determines that."
Update: The Indianapolis Star has obtained text of the proposed amendment:
The measure would specify that the new religious freedom law cannot be used as a legal defense to discriminate against residents based on their sexual orientation. The measure goes much further than a "preamble" that was proposed earlier in the week, explaining exactly what the RFRA law does. 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 clarification would say 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. The proposed language exempts churches or other nonprofit religious organizations -- including affiliated schools – from the definition of "provider."