|Jane Henegar, Executive Director,|
American Civil Liberties Union of Indiana
What a difference a week makes. Last week, we and others were engaged in negotiations to "fix" Indiana's just-passed Religious Freedom Restoration Act, or RFRA. Today, we can say that while the situation in our state is far from perfect, we ended up in a place that is both historic and significant.
We are grateful to the corporate community, which was instrumental in rolling back some damaging components of RFRA, and which has stated its commitment to statewide protections for gay and transgender people.
For the first time in our history, Indiana now recognizes protections based on sexual orientation and gender identity — even if they currently exist in only a few local human rights ordinances. For the first time in our history, Indiana now recognizes protections based on sexual orientation and gender identity — even if they currently exist in only a few local human rights ordinances. And the passage of RFRA here, and the resulting backlash, has brought about a startling transformation that has advanced the cause of LGBT equality all across the country....Henegar spouts nothing but political spin in an attempt to assure supporters that the organization's absurd attacks on the RFRA, a law the ACLU used to enthusiastically support, actually helped gain ground in the drive for LGBT rights. An examination of the RFRA "fix" shows how utterly absurd Henegar's statement is.
There have been 22 years of case law under the federal RFRA and the 19 states that have their own versions of the law. Before that, more precisely before the United States Supreme Court in 1990 handed down Employment Division v. Smith that gutted the Free Exercise Clause, we had 30 years of litigation under the old Sherbert compelling interest test which was reinstated by the RFRA. That is 52 years of litigation. Not once in those 52 years has there ever been a case handed down in which the RFRA or the Sherbert test ever overturned the application of an anti-discrimination law...in every case courts have held that there is a compelling government interest for those types of laws.
Section 1 of the "fix" simply includes in the RFRA the conclusion of 52 years of case law. Certainly no ground gained there.
Section 2 of the "fix" actually for the first time mandates that any current or future local human rights ordinances carve out an exception for religious organizations. That is certainly not a victory for LGBT rights. The section is completely unattached to the RFRA, yet it is now the law of the state of Indiana because groups like the ACLU insisted that RFRA be "fixed."
Henegar is not being honest. The truth is, instead of advancing LGBT rights by arguing in a positive manner for a statewide anti-discrimination law that includes sexual orientation, the ACLU and allies like Freedom Indiana chose to engage in an unprecedented campaign of demagoguery and distortion that set LGBT rights back years. If Henegar thinks intentionally misrepresenting what a bill does, engaging in name calling against legislators and the Governor, and applauding extortion threats from corporate allies is a way to win at the Indiana General Assembly, she is in for a rude awakening next session. There is a big difference between stopping legislation and getting legislation passed. Henegar is about to learn that lesson.