Indiana Governor Uses Federal Statute to Defend Controversial Law

Indiana Gov. Mike Pence has come under fire in recent days for signing a law that critics say opens the door to discrimination against gays and lesbians in the state.

Pence, a Republican, offered an interesting defense of the law in response to the public outcry the law has sparked: Indiana’s Religious Freedom Restoration Act is providing the same protections against state government as citizens currently possess from federal agencies.

The governor wrote in a Wall Street Journal op-ed Monday evening the state law “simply mirrors” a federal statute signed by President Bill Clinton in 1993. That law allows religious groups to claim exemption from actions taken by federal agencies and employees that infringe upon their religious beliefs, so long as the proposed action does not involve a “compelling government interest.”

The federal law, however, specifically protects religious groups from actions taken by the federal government (the Supreme Court ruled in the years since the federal law’s passage that it did not apply to state governments, a ruling that inspired Indiana and other states to pass their own versions of the law). The Indiana law goes a step further, extending the purview of the law to include cases in which the government is not a party. If an individual files a lawsuit against a private business, for example, the law could be relevant.

Critics argue that businesses could deny services to homosexuals based owners’ religious beliefs.  

The federal law has been applied under vastly different circumstances. For example, a New Mexican branch of the Brazilian church Uniao do Vegetal successfully argued in 2006 that the government acted in violation of the religious freedom statute when U.S. Customs Service agents seized a religious tea containing a Schedule I substance. In 1999, a Quaker woman unsuccessfully argued that the Internal Revenue Service violated the law by forcing her to pay federal income taxes toward the Defense Department despite her religious objections to acts of violence. In that case, the Supreme Court ruled federal tax collection was an essential government function and therefore exempt from the religious freedom law. 

Pence again defended his state’s version of the law on Tuesday, but conceded he was open to tweaking the language to ensure it does not enable discrimination.

CNN and other news organizations reported late Friday that the Arkansas House approved legislation similar to Indiana’s controversial law. Lawmakers in other states have pledged to do the same.