Fair Questions: What can be done to protect same-sex couples from discrimination?

One of my friends shared with me an excellent legal analysis of the recent RFRA bill signed into law in Indiana.  I would highly recommend that anyone who either supports or opposes it read the analysis because it does a good job of both looking at the text and providing context.

I largely agree with his analysis, and this is the kind of analysis I would like to see more of from people who oppose the Indiana RFRA. My reason for opposing the RFRA is that it’s a waste of time and money, but I recognize that others could have different legitimate reasons for opposition.  Mr. Anderson’s points about it being unclear and overly broad are fair points, though they are not my points.

I think that a question that is not being asked enough is, “What can we do from a legal standpoint to protect people from discrimination based on sexual orientation?”  The first step in the process of answering that question is understanding the situation prior to the passage of the RFRA.

To that end, I would like to add a couple of points to Mr. Anderson’s analysis. The first is that I agree with him that the RFRA is not a license to discriminate. If there is license to discriminate created by an absence of legal protections for various personal characteristics, then Indiana already has a license to discriminate because sexual orientation is not a protected characteristic in state law here.  Unsurprisingly, Mike Pence does not see it as part of his agenda to add it as a protected characteristic.

Though Joe Kernan and Mitch Daniels have required public employers to adhere to non-discrimination rules in their hiring, private entities are already free to (except in a couple counties and a few cities) to discriminate for religious reasons.  Many employers don’t want to risk narrowing their labor pool or getting bad publicity, so I don’t see the RFRA as really changing the situation much. The only way to resolve the larger problem is to add sexual orientation to state law as a protected characteristic, which I think is what progressives and modern liberals would be better off spending their energy on.  Not only would that be the best way to address the need for legal protections against discrimination, it could also help offset some of the negative effects of the RFRA in Indiana.  What are those negative effects likely to be?

As Mr. Anderson notes (and I provided a link for in a previous post), there are only two counties and less than a handful of cities that have anti-discrimination laws that might potentially come into conflict with religious freedom as defined in the RFRA. And in those counties and cities, the demographics do not suggest that they are likely hotspots for rampant discrimination against same-sex couples as compared to other counties and cities in Indiana. So the number of cases likely to come out of those areas is probably going to be pretty low, and until we know what those cases look like, we non-lawyers have little idea whether or not the RFRA’s definition of religious freedom or the Sherbert test will impact the outcome negatively for a plaintiff suing a business.

I certainly hope that it doesn’t turn out to allow businesses to engage in unfair discrimination while avoiding local legal penalties, though that’s always a possibility.  The good news is that the evidence doesn’t suggest that it’s likely to be a common problem.  The other good news is that the law is not the only tool we have for addressing unfair discrimination.  Movements like the We Serve Everyone project can be very effective in using social and financial pressure to help mitigate the potential unfair discrimination that has existed for a long time before the RFRA and will probably exist long after it is repealed or obsolete.

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