Wielding his pen like a sword, Christian soldier and Indiana Governor Mike Pence waded into the culture wars and struck a blow for theocracy March 26 by signing SEA 101, the Religious Freedom Restoration Act (RFRA), into law at a private ceremony surrounded by representatives of his conservative social and religious base.
The boilerplate text of the law, based on the 1993 federal law, and some version of which has been adopted by 19 other states, reads, in part: “Prohibits a governmental entity from substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the governmental entity can demonstrate that the burden: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering the compelling governmental interest.” Additionally, the law “Prohibits an applicant, employee, or former employee from pursuing certain causes of action against a private employer.”
The implications of this law will have more significant impact than may be obvious yet. According to a letter from 30 legal scholars across the country in opposition to the RFRA “[C]ear evidence . . . unmistakably demonstrates that the broad language of the proposed state RFRA will more likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.”
The burden of proving governmental interest “will be particularly critical in cases where RFRA rights might be asserted as a defense to a claim of discrimination,” the legal scholars assert. “The RFRA claimant will be encouraged to assert a range of ways, including the market, in which application of the anti-discrimination law is non-essential.”
After he signed the bill, Pence issued a statement that framed his support so his base could feel the thrill of righteous indignation. “Many people of faith feel their religious liberty is under attack by government action.”
Translation: Same-sex couples are getting married, and women expect their healthcare providers to offer legal products and procedures. We must fight against these evil laws!
Forget notions of Christian charity and loving thy neighbor as thyself, much less constitutional guarantees of religious freedom. No, Pence’s small-government ideology requires additional legislation. “With the passage of this legislation, we ensure that Indiana will continue to be a place where we respect freedom of religion.”
“This bill is not about discrimination,” Pence asserted. No, not unless a pharmacist declines to fill a prescription because he feels it violates his religious beliefs. No, not unless a gay couple is refused service in a restaurant because the owners think homosexuality is a sin.
“Indiana is rightly celebrated for the hospitality, generosity, tolerance and values of our people,” Pence said. Perhaps that’s why Visit Indy, the City of Indianapolis tourism agency, felt obliged to oppose the legislation. After the signing, it issued a statement expressing concerns for “misperceptions of Indianapolis’ dedicated hospitality industry and our desire to serve ALL visitors.” Perhaps that’s also why Indianapolis Mayor Greg Ballard expressed regret about the legislation: “I don’t believe this legislation truly represents our state or our capital city. Indianapolis strives to be a welcoming place that attracts businesses, conventions, visitors and residents. We are a diverse city, and I want everyone who visits and lives in Indy to feel comfortable here. RFRA sends the wrong signal.”
Apparently Pence had not sought a cost-benefit analysis for the legislation prior to signing. However, he could have taken cues from his free-market allies, who tried to warn him about negative economic consequences. Indianapolis-based Eli Lilly and Company and Columbus-based Cummins both opposed the bill, saying it would limit the their ability to attract top talent. The Indy Chamber of Commerce opposed the legislation in hearings and issued a statement decrying the law, “This is clearly not how we want to be perceived and is not reflective of how we do business in Indianapolis.”
Over the past four decades, the State of Indiana and the City of Indianapolis have sunk millions of tax dollars into sports venues, convention centers and support structures to attract large events in the name of economic development. Pence is apparently unmoved by the potential negative coverage Indianapolis could receive when it hosts the NCAA’s Final Four this coming week. After the bill was signed into law, NCAA president Mark Emmert released a statement from the organization’s Indianapolis headquarters that reads, in part: “We are especially concerned how this legislation could affect our student athletes and employees. . . . We intend to closely examine the implications of this bill and how it might affect future events as well as our workforce.”
At a time when every state in the country is vying to attract tech firms, Pence ignored a letter from the heads of some Hoosier tech firms, who pleaded with him to veto the bill. The letter read in part: “Technology professionals are by their nature very progressive, and backward-looking legislation such as the RFRA will make the state of Indiana a less appealing place to live and work.” After the signing, Salesforce.com founder and CEO Marc Benioff promptly tweeted, “We are forced to dramatically reduce our investment in IN based on our employee’s & customer’s outrage over the Religious Freedom Bill.”
Pence’s actions are but the latest in a state with a history of discrimination. Garrison Keillor once noted that Indiana is the only southern state north of the Mason-Dixon line. Although it’s true that the Underground Railroad had several routes to freedom through the state, Indiana’s Fugitive Slave Law allowed slaveholders from other states to claim their runaway “property” and take them back.
In the 1920s, Indiana was run by the Ku Klux Klan, a religious civic improvement group that fostered a cultural climate making Jews, Blacks and Catholics the targets of discrimination. A Klan-supported candidate, Edward Jackson, was elected governor in 1924. As historian Leonard J. Moore points out in his book Citizen Klansmen: The Ku Klux Klan in Indiana, 1921–1928, “The election proved that Klansmen could be elected to all levels of public office and affirmed that Indiana’s white Protestant majority was still in command.”
Moore points out that while Klansmen were effective at getting elected, they were inept at governing. “The lack of unity among Klan legislators became evident when the Senate killed a number of anti-Catholic bills.” There was no such lack of unity in this year’s General Assembly. With Republican super-majorities, RFRA passed the Indiana House 63 to 31 and the Senate 40 to 10.
Sociologist James Loewen, author of Sundown Towns: A Hidden Dimension of American Racism, documents another historic example of Hoosier Hospitality. The title of the book comes from signs posted inside the city limits of many communities: “Don’t let the sun go down on you here” and “Whites Only After Dark.” Asked by phone if he sees similarity between RFRA and sundown ordinances, Loewen replied, “There is a parallel.” Loewen thinks SEA 101 could make a mockery of any kind of open accommodations law. Anyone could avoid compliance by claiming that complying conflicts with their religious beliefs. “It relates to the way many businesses did business until the 1964 Civil Rights Act,” Loewen said. “The Act was not enforced much in the Midwest — its main enforcement came in the South. In the Midwest there are all kinds of examples of businesses in Illinois and Indiana especially that didn’t serve Blacks until the 1970s and later.”
Loewen insists that sundown towns are not historical vestiges. “I think there are still sundown towns in Indiana,” he said. “Goshen passed a resolution two weeks ago acknowledging discrimination, and I spoke there.”
The northern Indiana town is home to a Mennonite College with a well-regarded Peace Studies curriculum as well as a forward-thinking environmental stewardship program. At the prodding of former newspaperman Dan Shenk, Goshen’s town council passed a resolution March 17: “A Resolution Acknowledging the Racially Exclusionary Past of Goshen, Indiana, as a Sundown Town.”
By phone from his office, Goshen Mayor Allan Kauffman said the resolution was adopted even though “nobody can ever find a record of any kind of ordinance in the City of Goshen that would prohibit African Americans in town.” Kauffman said he never considered the relationship between Goshen’s issue and the RFRA. For him the point is moot. “If my religious beliefs didn’t allow me to discriminate, I would think that law would be good for me,” he said. “It may boil down to interpretation of religion.” He said the resolution is a strong moral statement by the community. “We discriminated, we shouldn’t have and we won’t.”
Loewen notes that in many small communities like Goshen, evidence of sundown ordinances is hard to find. This brings to mind Donald Rumsfeld’s infamous observation that the absence of evidence is not evidence of absence. “You can’t find written evidence that baseball’s minor leagues were all-white after 1890 but tell that to Jackie Robinson,” Loewen said. “I don’t think most small towns can find double-parking ordinances but if you double-park you will be towed.”
The Urban Dictionary defines the phrase Land o’ Goshen as “a Southern expression of amazement or frustration.” For many Hoosiers, what’s frustrating is that instead of addressing important issues like public health and safety, infrastructure and poverty, the General Assembly used its time and energy to enshrine discrimination in state law. Land o’ Goshen — ain’t they got somethin’ better to do?
How about if state government takes a cue from a tiny Indiana town that repudiated its history of discrimination, and promises now not to discriminate against anyone, ever? Land o’ Goshen, Ma! That would be the best resolution ever!
Thomas P. Healy is a journalist in Indianapolis. Thomasphealy@sbcglobal.net