Can Religious Liberty and LGBT Rights Coexist in Indiana? | Sojourners

Can Religious Liberty and LGBT Rights Coexist in Indiana?

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Just before the Religious Freedom Restoration Act controversy exploded in Indiana earlier this year, a compromise was playing out 1,500 miles away.

In Utah, as the Salt Lake Tribune noted, same-sex marriage had been banned both through state law and constitutional amendment. Attempts to pass lesbian, gay, bisexual, and transgender anti-discrimination measures had failed six times.

But in March, lawmakers brought together representatives from the Mormon and LGBT communities and passed landmark legislation.

Utah law now lists sexual orientation and gender identity as protected classes in housing and employment — but, without buy-in from the religious community, it does not include “public accommodations,” a broad legal term used to describe everything from bus services to restaurants and other private businesses.

The “Utah compromise” was hailed by some as a groundbreaking balance of religious liberty and LGBT rights. But now, as Indiana Republican leaders examine whether such a policy could be introduced here, business leaders are roundly rejecting the concept.

It’s too late, they say, for that kind of compromise to work in Indiana.

He, and others including Eli Lilly & Co. and the NCAA, say they want stronger protections of LGBT rights than the Utah compromise afforded — including in businesses open to the public.

And there’s no indication that the Utah compromise would please opponents of LGBT rights, either. They oppose any extension of rights based on sexual orientation or gender identity without broadly allowing for individual objections.

Experts across the country say this polarizing problem necessitates compromise, but meanwhile, both sides snipe at each other for refusing to give an inch.

Still, some in Indiana say that no-compromise attitude is more likely to backfire on the most zealous defenders of religious liberty, especially in light of the damage done by RFRA and the political clout of business leaders.

That could force the issue — and put Indiana in a position that politically demands full protections.

Public accommodations include any business or service open to the public. In the civil rights movement of the 1950s and 1960s, some of the most well-known examples of discrimination in public accommodations centered on water fountains, bathrooms, buses, and seats at the lunch counter.

But today, the battleground is wedding services. Should a business owner, who follows a religion that disapproves of gay marriage, have to serve gay customers who request wedding cakes or photographs?

In Carmel, the city council briefly considered exemptions meant to address those situations. But the exemptions were criticized for how broadly they were written — and Mayor Jim Brainard urged council members not to adopt them. Some said the episode demonstrated just how difficult it is to craft such carve-outs.

Brainard has said he thinks allowing business owners to decline services to same-sex couples because of religious objections would constitute discrimination. The council is scheduled to vote on the measure Oct. 5.

In Washington state, the law prohibits discrimination based on sexual orientation in public accommodations. That’s what formed the basis of a widely publicized case against Arlene’s Flowers, a business sued by the state for turning down a gay customer’s request for wedding arrangements.

A judge fined the business for violating state law.

The owner, Barronnelle Stutzman, has become a rallying figure for social conservatives — a woman victimized for her religious beliefs.

In Utah, where lawmakers could strike deals more easily on housing and employment discrimination, an agreement to extend LGBT rights to public accommodations wasn’t winnable, said University of Illinois law professor Robin Fretwell Wilson.

“Can’t we fix the two things that are easiest to agree on, and leave the harder one for later?” said Wilson, a RFRA supporter who helped shape Utah’s legislation.

In Indiana, she said, she has fielded inquiries about the Utah model from Gov. Mike Pence’s office and the team of Al Hubbard and Mark Miles, two influential Republicans working on an anti-discrimination proposal.

But some businesses rebuffed the idea of any proposal that lacks protections in public accommodations, emphasizing that they are advocating for full protections for everybody.

“We stand for equal protections for all Hoosiers, including Hoosiers in the LGBT community,” said Edward Sagebiel, Lilly’s senior director for global corporate communications, reputation, and branding.

“Our commitment to fair treatment of all employees, regardless of sexual orientation or gender identity, has not changed and is at the core of what we believe in,” said Bob Williams, senior vice president of communications for the NCAA.

“We intend to stand strong with our colleagues in the business community as the fight for equal protections under the law is fought for everyone in the state of Indiana.”

Many agree the bitterness over RFRA — and damage to the state’s reputation — still lingers. Business leaders will meet Monday with Pence to discuss the issue, among other concerns.

Even if the law itself would not have allowed for discrimination, too many people saw it as a weapon of bad intentions wielded by conservatives who were losing ground on gay rights issues.

“RFRA got tied up with gay rights in the wrong way,” Wilson said.

“The way you come back from that is to do more for that community.”

But she warns that anti-discrimination laws “remake the character of the state.” And is Indiana ready for that?

When it comes to public accommodations, Wilson said, it’s difficult to find a way to pair a win for LGBT rights advocates with a win for religious freedom advocates.

In Utah, perhaps the most noteworthy advancement of LGBT rights was the inclusion of nondiscrimination protections for transgender people.

And, for the religious liberty side, the state created a workaround for county clerks to opt out of providing wedding services. Clerks had to figure out which of their employees would religiously object and put into place other arrangements for an authorized official to solemnize marriages — all planned out before a problem would ever arise.

That way, nobody says no to a couple. No couple gets turned away.

“These are real dignitary losses,” Wilson said.

“We do not humiliate our neighbors. To protect religious people doesn’t require that.”

So, can a similar workaround be done for public accommodations?

Allowing businesses to turn away gay couples, Wilson said, even if they provide a list of other places willing to provide the service, feels too much like the Kentucky clerk Kim Davis refusing to issue marriage licenses.

“It will feel as offensive as those two guys standing there at her desk being told to wait,” Wilson said.
 

“There’s so much harm in saying no,” she added. “Even if you and I know we can go across the street. It’s very, very close to saying, ‘I do not like you.’”

And instead of effectively defending religious liberty, she said, such an action runs the risk of making religious people look “like bigots and jerks.”

She is mulling a way for wedding-related businesses to have to serve customers, but perhaps have someone else fill the orders.

“You get a pass on making the flowers,” she said, “but you don’t get a pass on them walking into the business.”

But Wilson knows some business owners would still feel complicit in a same-sex wedding ceremony, and she hasn’t been able to garner support from the religious community on the idea.

Just as the Utah compromise isn’t enough for many Indiana businesses, it may not satisfy religious conservatives, either.

The Utah legislation passed with cooperation from the Mormon community, but it has received criticism from other religious groups.

The Alliance Defending Freedom, a national conservative Christian organization, said it’s a “misnomer” and a “farce” to say Utah’s laws forged a compromise.

Litigation counsel Caleb Dalton said he felt as though the religious community did not win many more protections than already afforded under constitutional law.

The Utah legislation wrote in exemptions beyond religious organizations such as churches or parochial schools, to also include any affiliated nonprofits or auxiliary building.

The nondiscrimination law also explicitly preserves First Amendment rights to freedom of expression. That means employees can’t be fired, for example, for supporting anti-abortion causes or going to a gay pride parade.

But Dalton said he would want to see legislation that recognizes people’s “freedom to live and act according to their faiths.”

Eric Miller, executive director of the Indiana conservative advocacy group Advance America, declined to comment on a Utah-like model without seeing a proposal.

Public accommodations, however, have been the main target of opponents campaigning against anti-discrimination laws. In particular, Miller has said allowing transgender people to use restrooms that correspond with their gender identities could pose public safety problems by giving sexual predators access to women’s restrooms.

That’s been the argument, too, from Micah Clark, executive director of the American Family Association of Indiana. He also has said LGBT nondiscrimination laws would give “special rights” to gay and transgender Hoosiers, protecting “moral decay” rather than civil rights.

Clark has questioned the need for such legislation in Indiana, arguing that there haven’t been many complaints of gay or transgender people being turned away from public accommodations, even in cities that protect those classes.

Ultimately, it all comes back to the underlying question: Can religious liberty and LGBT rights coexist in Indiana?

Indiana University Maurer School of Law professor Steve Sanders says that depends on how you define religious liberty.

“Religious liberty refers to the principle that the government can’t interfere with somebody’s conscience and can’t directly interfere with how they lead their lives,” Sanders said.

“But what we’ve seen is Christian conservatives defining religious liberty much more broadly.

“Essentially, they say, ‘If I disagree with something as a matter of public policy, it violates my religious liberty.’ That’s an unworkable definition of religious liberty in a pluralistic society. It runs the risk of making the individual religious believer a law unto himself, or unto herself.”

The religious right, he said, have appropriated the term to make an emotional appeal.

What Wilson worries about is trying to hit a constantly moving target with religious rights. She can address clerks not wanting to solemnize marriages. But then Kim Davis also doesn’t want anyone in her office to issue licenses. And then she also doesn’t want her name on any licenses.

But Wilson sticks firmly to the belief that you can have both religious liberty and LGBT rights.

“Gay rights,” she said, “don’t come with a price tag that says religious people lose.”

Though it’s too early to say what any kind of proposal in Indiana would look like, it’s clear compromise is on the minds of those working toward a solution. As Miles told The Star, “I think an approach that can be described as freedom for all, or fairness for all, might make sense for lawmakers.”

Via Religion News Service.

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