A beleaguered looking Pence appeared on This Week with George Stephanopoulos, trying to reassure a national audience that the bill was not about discrimination. The interview was a disaster. When Stephanopoulos asked, "Do you think it should be legal in the state of Indiana to discriminate against gays or lesbians?" Pence paused, and winced. "George." he began, then sighed.
"It's a yes or no question!" Stephanopoulos pressed. No matter how many times he was asked, Pence would not simply say that the answer was no. (Which means he probably believed the answer was yes, but at least he knew not to admit it.) One national columnist later described it as "very possibly one of the worst appearances by a governor in television history."
The language of the bill seemed innocent enough: "a governmental entity may not substantially burden a person's exercise of religion," unless there is a compelling governmental interest at stake. But "person" was defined to include companies, building on the legal theory of the 2014 Supreme Court Hobby Lobby case, which interpreted federal law as giving corporations the same religious rights as people.
Effectively this meant that any place of business, from a restaurant to an auto mechanic shop, could refuse an LGBT individual or couple, provided its owner cited religion as the motivation for discriminating. The bill's actual purpose, its sponsors would later reveal, was to legalize discrimination.
Americans United supports the legislation. AU's President said that "the Do No Harm Act will ensure that we honor two core American values: religious freedom and the promise of equal protection under the law."
Congress enacted the federal RFRA in 1993 with the goal of protecting religious freedom, especially for religious minorities. At that time, a broad coalition of progressive & conservative groups supported the law. But since then, the federal RFRA has been misinterpreted by some courts and has become a vehicle for those who want to use religion to undermine protections for civil rights and access to health care.
The law sparked widespread outrage. Opponents contended that it would give license to religious conservatives to refuse service to lesbian, gay, bisexual, and transgender individuals. In response, several major events and corporations--including Salesforce.com and the NCAA--threatened to limit business ventures in the state or boycott it altogether.
Pence adamantly defended the RFRA legislation and refused to say whether it allowed for discrimination, which led to extensive questioning of his underlying motives. So much so that he quietly signed a subsequent piece of legislation--dubbed the "RFRA Fix"--that clarified that the law did not allow businesses to discriminate based on a customer's sexual orientation or gender identity.
"This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it," Pence said at the time. "In fact, it does not even apply to disputes between private parties unless government action is involved. For more than 20 years, the federal Religious Freedom Restoration Act has never undermined our nation's anti-discrimination laws, and it will not in Indiana."
Stein: Yes, like Hobby Lobby. I ask, "Whose freedom?" Freedom of corporations and the economic elite, or freedom of employees and consumers? We need to be about freedom for everybody. We need to uphold the law of the land--everybody's freedom needs to be respected--if your freedom means dominating someone else, then you don't get it--businesses cannot discriminate based on gender or religion or lack thereof--businesses are public entities that exist in the public marketplace and need to respect the dignity and human rights of everyone, period.
OnTheIssues: How do you respond to Hobby Lobby's argument?
Stein: Religion is used there as a surrogate for patriarchy--usually male--to dominate women's reproductive lives. It's a misuse and an abuse of the concept of religion that is simply be used as a surrogate.
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