Indiana's Problem: Acting on Religious Beliefs Can Be Discriminatory

Lesbians eating cake. What an affront to religion!

The problem with Indiana's new religious freedom law is that is is quite different from the other laws that it claims it's not different from. But it is quite different:

Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens.* This means it could be used as a cudgel by corporations to justify discrimination against individuals that might otherwise be protected under law. Indiana trial lawyer Matt Anderson, discussing this difference, writes that the Indiana law is “more broadly written than its federal and state predecessors” and opens up “the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate…”

Unfortunately, most media get this wrong. And this difference between Indiana's law and others is huge. When government inhibits the free expression of religion, it's violating the First Amendment. Government rightly has a public interest in assuring that it doesn't do that.

By applying the First Amendment guarantees to acts between private citizens makes it legal to discriminate based on religious beliefs. That's an invitation to violate laws against discrimination. That's exactly what the Indiana law does, and it's the reason for the uproar.

Indiana is in a pickle, made all the more precarious because public opinion on GLBT rights have changed so much so fast. Republicans -- Indiana's new law and other religious freedom laws in other states are Republican actions -- are so far behind the eight ball here precisely because of how unexpectedly they've fallen behind the times.

The GOP contenders for the presidency in 2016 are also very much in trouble here. They're falling in step behind Governor Mike Pence on this matter, believing they must do so because they're the "party of religion." Fine, but that's an increasingly marginalized place to come from. It's worked for years, but now it's increasingly a liability.

Republicans are out of step here, and Indiana is taking the heat for it. Since the GOP is also "the party of business," that's a big problem.