A Clash of Freedoms in Indiana
Garrett Epps, who teaches law at the University of Baltimore, describes on The Atlantic's website how much of the early news coverage failed to describe two provisions in the Indiana law that put new obstacles in the way of equal protection for homosexuals.
One explicitly allows any for-profit business to assert a right to "the free exercise of religion." That's in accordance with the Supreme Court's Burwell v. Hobby Lobby decision, based on federal RFRA. That case successfully challenged provisions of the Affordable Care Act that required institutions to offer insurance coverage that conflicted with their religious views.
Second, the Indiana statute explicitly makes a business's "free exercise" right a defense against a private lawsuit by another person, not just by government.
That certainly sounds like a nod to the new wave of "religious freedom" legislation that followed the New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple's wedding. New Mexico's Supreme Court held that the RFRA did not apply "because the government is not a party." In Indiana, it now is a party.
A similar law is working its way through Arkansas' legislature with possibly more states to follow.
In a Tuesday news conference, Pence called for new legislation "before the end of this week" to clarify that "this law does not give businesses the right to deny service to anyone." Time is precious, as pressure is mounting from celebrities, business leaders and rival states for Indiana lawmakers to "Fix This Now," as a rare front-page editorial in the Indianapolis Star demanded.
Mayor Rahm Emanuel of neighboring Chicago invited Indiana businesses to move to his state. Virginia's Democratic Gov. Terry McAuliffe did the same.
NCAA officials, headquartered in Indianapolis, expressed concern over possible civil rights infringements. Celebrities as varied as Chicago-based Wilco and Miley Cyrus announced boycotts.
Apple CEO Tim Cook spoke for many when he criticized such laws in a Washington Post op-ed. "The days of segregation and discrimination marked by 'Whites Only' signs on shop doors, water fountains and restrooms must remain deep in our past," he wrote. "We must never return to any semblance of that time. America must be a land of opportunity for everyone."
Some people will say he is overstating the case with his civil rights-era comparisons. But if he is, it is not by much.
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E-mail Clarence Page at cpage@tribune.com.
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