Yesterday, Indiana Governor Mike Pence signed SB 101 into law, a "religious freedom" bill that will allow business owners in the state to discriminate against whoever they please. A dozen other states are considering similar measures, but in the meantime, let's consider how we got here: the Supreme Court's terrible Hobby Lobby ruling.
As the Washington Post points out this morning, when the Supremes ruled that businesses who objected to contraception on "moral" grounds didn't have to provide it to their employees, Justice and Fantasy Jezebel BFF Ruth Bader Ginsburg promptly pointed out in her dissent that the ruling could create "havoc," given that it essentially gives a big thumbs-up to any and all private businesses seeking similar loopholes on moral grounds.
"The court, I fear, has ventured into a minefield," Ginsburg wrote. And also: "Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate."
As a Human Rights Campaign report makes clear, that exactly what these state-level religious freedom laws do: create a large, vague and very accommodating loophole for anyone who doesn't feel like serving LGBT people or women, or people of color. Anything goes:
These bills are often incredibly vague and light on details — usually intentionally. In practice, most of these bills could empower any individual to sue the government to attempt to end enforcement of a non-discrimination law. The evangelical owner of a business providing a secular service can sue claiming that their personal faith empowers them to refuse to hire Jews, divorcees, or LGBT people. A landlord could claim the right to refuse to rent an apartment to a Muslim or a transgender person. By passing a state RFRA, the state puts the power to decide what constitutes religious discrimination in the hands of the state Supreme Court. Given the fact that state Supreme Courts tend to reflect the leanings of the state as a whole, this places a gay couple in Mississippi at much greater risk than a gay couple in Rhode Island.
Governor Pence swears the bill won't be used to discriminate against anybody. In a statement issued Thursday, he wrote, "This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation's anti-discrimination laws, and it will not in Indiana."
Governor Pence takes questions during a news conference on the bill. Photo via AP