The following editorial appeared in The New York Times.
Indiana Gov. Mike Pence, who last week signed a religious freedom law driven by bigotry against gays and lesbians, has been complaining that the law’s opponents — which include top business leaders and civil rights groups — are spreading “misinformation.”
It is true that the law does not, as some opponents claim, specifically permit businesses to refuse to serve gays and lesbians. Its drafters were too smart to make that explicit. Instead, the law allows individuals or corporations facing discrimination lawsuits to claim that serving gays and lesbians “substantially” burdens their religious freedom.
But nobody is fooled as to the law’s underlying purpose. As its most prominent backers have said quite clearly, it is meant to protect “Christian businesses and churches from those supporting homosexual marriages.” In other words, it should allow them to refuse service to gay couples.
The law has understandably spawned a nationwide call for boycotts of the state, not to mention the rebuke of the Indiana Chamber of Commerce, companies like Apple, and the NCAA, whose college basketball tournament is holding the Final Four in Indianapolis this coming weekend.
The tactic of using so-called religious freedom laws to justify and support anti-gay discrimination is relatively new. A decade ago, states could discriminate against gay couples openly by banning same-sex marriages, as dozens did. In recent years, with federal and state courts striking down those marriage bans as unconstitutional (Indiana’s was struck down in 2014), opponents of marriage equality have resorted to using other strategies.
Religious freedom laws, which were originally intended to protect religious minorities from burdensome laws or regulations, have become increasingly invoked by conservative Christian groups as gay rights in general — and marriage equality in particular — gained greater acceptance nationally. Besides Indiana, 19 states have adopted such laws, but the laws in other states apply to disputes between individuals and the government; Indiana’s law also applies to disputes between private citizens.
The Supreme Court helped the cause of Christian conservatives with its 2014 Hobby Lobby decision, which held that family-owned corporations may invoke the federal religious freedom law in refusing to comply with a law requiring employer-paid health plans to cover contraception benefits.
If Pence is genuinely concerned about why people may be misunderstanding the law, he could start by looking in the mirror. Under persistent questioning on ABC News’ “This Week” on Sunday morning, Pence insisted that the law “is not about discrimination,” but about “empowering people.”
That claim is impossible to square with his refusal to consider a statewide law protecting gays and lesbians from discrimination (about a dozen Indiana cities, including most of the largest ones, already have such laws). The freedom to exercise one’s religion is not under assault in Indiana, or anywhere else in the country. Religious people — including Christians, who continue to make up the majority of Americans — may worship however they wish and say whatever they like.
But religion should not be allowed to serve as a cover for discrimination in the public sphere. In the past, racial discrimination was also justified by religious beliefs, yet businesses may not refuse service to customers because of their race. Such behavior should be no more tolerable when it is based on sexual orientation.