Why fixing Indiana’s religious freedom law may not be easy

Gov. Mike Pence said that he wants lawmakers to “work around the clock,” to find a fix for a state law that critics say allows for discrimination against gays and lesbians by those with opposing religious beliefs. But finding a legislative fix in an atmosphere of economic boycotts and political furor may not be easy.

“Was I expecting this kind of backlash? Heavens no,” Pence told reporters at a televised news conference on Tuesday.

“After much reflection, I have come to the conclusion that it would be helpful to move legislation this week that makes it clear that this law does not give businesses the right to deny services to anyone,” Pence said.

The governor, a conservative Republican, continued to defend the law, similar to measures passed in 19 other states and pending in more than a dozen others.

There was no intent “to create a license to discriminate,” Pence said. But, he added, “that that’s become the perception, not just here in Indiana but all across the country. We need to confront that.”

The Indiana law, formally known as the Religious Freedom Restoration Act, says that government can’t “substantially burden a person’s exercise of religion” and that individuals who feel their religious beliefs have been or could be “substantially burdened” are protected from civil lawsuits. The concept of substantial burden is not defined in the law, leaving the execution of the law up to the courts.

Critics who have fought similar measures in other states argue that the class of such laws is designed to protect businesses and individuals who do not want to serve gays and lesbians. The usual example involves bakers or florists who refuse service to same-sex couples who are marrying.

“This law does not give anyone the right to discriminate... This law does not give anyone the right to deny services,” Pence told reporters.

When asked whether Christian businesses should be compelled to supply services to gay and lesbian weddings, Pence answered: “I don’t support discrimination against anyone.”

The simplest fix, Democrats have repeatedly argued, is to repeal the new law outright. “You have to take affirmative action -- you can’t just tinker with this language,” Indiana Senate Democratic leader Tim Lanane said earlier in the week.

Another possibility is to pass a measure that protects same-sex couples and others from any denial of service. Indiana has anti-discrimination laws, but they do not include protection based on sexual orientation.

According to Human Rights Campaign legal director Sarah Warbelow, 20 states, including Indiana, have some type of religious freedom law. Four of these states -- Connecticut, Illinois, Rhode Island and New Mexico -- have nondiscrimination protections for sexual orientation and gender identity in housing, employment, and public accommodations, she said.

There have been fewer than a dozen cases, some pending, involving religious freedom claims. The suits vary. For example, a religious group argued in Texas that serving food to the homeless is essential to their faith. But state health and safety codes are burdensome to this practice.

In the service area, a Christian baker in Oregon, which does not have the same type of law as Indiana, refused to sell a cake for the wedding of a gay couple. In New Mexico, a Christian photographer refused service to another same-sex couple. Both cases were resolved by state regulatory action faulting the providers.

Pence has opposed anti-discrimination protection based on sexual orientation, a position he repeated on Tuesday, saying it wasn’t on the agenda. He did insist that lawmakers could find a legislative fix and that he expected to see it this week. But he did not give details about the potential fix. The need for speed has come in part from the strong backlash, led by businesses complaining that the publicity was hurting. Businesses and organizations including Apple and the NCAA have voiced concern and some states, including Connecticut, have barred government-funded travel to Indiana.

At the news conference, Pence said he found “deeply offensive” the criticisms lodged against Indiana and its residents. He again blamed the national media and critics for damage that may have been done to the state’s reputation.

“We want to make it clear that Hoosier Hospitality is not a slogan, it’s our way of life,” Pence insisted. “Hoosiers are a loving, kind, generous, decent and kind people,” Pence said.

The state’s biggest newspaper, the Indianapolis Star, urged lawmakers in a dramatic front-page editorial to respond.

The Star’s editorial, headlined “FIX THIS NOW,” covered the newspaper’s entire front page. The newspaper said the uproar sparked by the law has “done enormous harm” to the state and potentially to its economic future.

It called for a law that would prohibit discrimination on the basis of a person’s sexual orientation or gender identity. Indiana has anti-discrimination laws, but they deal with categories such as race and do not cover sexual orientation.

Meanwhile in Arkansas, the Legislature prepared to pass a law similar to the one in Indiana.