Indiana Orgs Demand Right to Discriminate (Under the Equal Protection Clause!)

Unless you haven’t read the news in quite a while (in which case… are you in for a surprise!) you know that Indiana has been on a RFRA roller coaster for nearly a year.

To summarize: in expectation of the Obergefell decision, Indiana passed a broad “religious freedom” law that would have allowed individuals and companies to assert a religious rights defense to claims of LGBT discrimination. The state faced a PR firestorm and immediately passed a “fix”  explaining that statute could not be used to discriminate. Of course Indiana never had state LGBT antidiscrimination protections in the first place, so the “fix” was essentially meaningless except when it came to municipalities that included protections for LGBT people in their antidiscrimination ordinances. The state is now in the midst of RFRA battle round two, with legislators introducing a handful of assorted religious liberty and LGBT rights bills that have, thus far, been killed. However three anti-LGBT religious groups aren’t waiting to see what happens this session: they’ve already filed a complaint arguing that municipal LGBT protections, and last year’s RFRA “fix,” are unconstitutional violations of their religious liberty.

The complaint alleges that the RFRA “fix” and local ordinances are violations of the state and U.S. constitutions including the substantive due process clause, establishment clause, free exercise clause, freedom of speech, freedom of association, and—ironically— the equal protection clause.

Courts have overwhelmingly rejected the argument that religious freedom protections give one a “right to discriminate” against LGBT customers or employees, often looking to earlier race discrimination cases for guidance. For example, the idea that the free exercise clause provides a right to discriminate was deemed “patently frivolous” by the Supreme Court in 1968’s Newman v. Piggie Park. Even if strict scrutiny is applied, the Court’s opinion in Bob Jones University v. United States found that the government’s interest in preventing discrimination outweighed any religious burden this imposed.

The Indiana lawsuit seems to hang its hat on the fact that the amended RFRA treats different religious actors differently—clergy members and churches are still exempt from nondiscrimination provisions while other individuals and corporations are not. The plaintiffs claim that the government has no compelling interest in allowing exemptions for some, but not all, religious groups. This argument is similar to the one being put forth in the upcoming Supreme Court case Zubik v. Burwell, which challenges the validity of providing one type of religious exemption from the ACA’s contraceptive coverage requirement to churches, and a different type of exemption to religious nonprofits.

The argument that anyone with a religious belief—from a Rabbi to a multinational corporation—should be given an equal license to discriminate is (to borrow language from the Court) patently frivolous, and ignores the enormous differences in the societal roles these parties play as well as the enormously variant risks of regulating their actions. The Supreme Court has already done significant damage to equality rights in its Hobby Lobby decision by holding that for-profit entities can exercise religion. It should not further weight the scales in favor of the right to discriminate by limiting the ability of the government to make rational distinctions between churches and less pervasively religious institutions.

Religion is not a free pass to ignore antidiscrimination legislation, as the Supreme Court has repeatedly held. Certain exceedingly narrow exceptions have historically been given to churches and clergy due to their distinct role in American society and culture. However applying these exceptions to, say, your local cupcake shop (or even worse, your local clinic) turns the government’s message of equality on its head: changing the robust guarantee of “LGBT citizens have equal rights” to the anemic “LGBT citizens have equal rights… unless you think they don’t.”