Today, the Indiana Legislature is debating an amendment which would provide significant protections to sexual minorities in Indiana. It would be ironic if the passage of the RFRA led to the achievement of a legislative goal pursued by GLBT activists for a long time.
You can click the link to go to the Indiana legislature’s website to read the amendment, and it is provided here below.
CONFERENCE COMMITTEE REPORT
DIGEST FOR ESB 50
Citations Affected: IC 34-13-9.
Synopsis: Antidiscrimination safeguards. Indicates that the law related to adjudicating a claim or defense that a state or local law, ordinance, or other action substantially burdens the exercise of religion of a person: (1) does not authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public; (2) does not establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public; and (3) does not negate any rights available under the Constitution of the State of Indiana. Defines the term provider. (This conference committee report deletes the provisions concerning elections in SB 50, as amended by the house, and inserts provisions related to the law governing adjudicating a claim or defense that a state or local law, ordinance, or other action substantially burdens the exercise of religion of a person.)
Effective: July 1, 2015.
CONFERENCE COMMITTEE REPORT
MR. SPEAKER:
Your Conference Committee appointed to confer with a like committee from the Senate upon Engrossed House Amendments to Engrossed Senate Bill No. 50 respectfully reports that
said two committees have conferred and agreed as follows to wit: that the Senate recede from its dissent from all House amendments and that the Senate now concur in all House amendments to the bill and that the bill be further amended as follows:
1 Delete the title and insert the following:
2 A BILL FOR AN ACT to amend the Indiana Code concerning
3 judicial and administrative proceedings.
4 Delete everything after the enacting clause and insert the following:
5 SECTION 1. IC 34-13-9-0.7 IS ADDED TO THE INDIANA CODE
6 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
7 1, 2015]: Sec. 0.7. This chapter does not:
8 (1) authorize a provider to refuse to offer or provide services,
9 facilities, use of public accommodations, goods, employment,
10 or housing to any member or members of the general public
11 on the basis of race, color, religion, ancestry, age, national
12 origin, disability, sex, sexual orientation, gender identity, or
13 United States military service;
14 (2) establish a defense to a civil action or criminal prosecution
15 for refusal by a provider to offer or provide services, facilities,
16 use of public accommodations, goods, employment, or housing
17 to any member or members of the general public on the basis
18 of race, color, religion, ancestry, age, national origin,
19 disability, sex, sexual orientation, gender identity, or United
20 States military service; or
21 (3) negate any rights available under the Constitution of the
CC005005/DI 51 2015
2
1 State of Indiana.
2 SECTION 2. IC 34-13-9-7.5 IS ADDED TO THE INDIANA CODE
3 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
4 1, 2015]: Sec. 7.5. As used in this chapter, “provider” means one (1)
5 or more individuals, partnerships, associations, organizations,
6 limited liability companies, corporations, and other organized
7 groups of persons. The term does not include:
8 (1) A church or other nonprofit religious organization or
9 society, including an affiliated school, that is exempt from
10 federal income taxation under 26 U.S.C. 501(a), as amended
11 (excluding any activity that generates unrelated business
12 taxable income (as defined in 26 U.S.C. 512, as amended)).
13 (2) A rabbi, priest, preacher, minister, pastor, or designee of
14 a church or other nonprofit religious organization or society
15 when the individual is engaged in a religious or affiliated
16 educational function of the church or other nonprofit
17 religious organization or society.
(Reference is to ESB 50 as reprinted March 17, 2015.)
CC005005/DI 51 2015
Conference Committee Report
on
Engrossed Senate Bill 50
Signed by:
____________________________ ____________________________
Senator Young R Michael Representative Frizzell
Chairperson
____________________________ ____________________________
Senator Broden Representative Lawson L
Senate Conferees House Conferees
CC005005/DI 51 2015
This amendment makes sexual orientation and gender identity categories on par with race and religion. However, the facts of an alleged incident of discrimination would still be a matter for a court to decide. Because, the RFRA requires the government to show a compelling state interest to compel a person to take the pictures, it isn’t clear to me that a photographer who doesn’t believe gay marriage is right would have to provide services. However, I will say that the existence of a civil rights law that includes sexual orientation will make it more likely that a compelling state interest would win in court to require all public businesses to serve all clients.
For an article that I believe accurately describes the situation, see Dale Carpenter at the Volokh Conspiracy. Carpenter’s take on the amendment is generally favorable.
UPDATE: Legislators in Indiana have agreed to vote on the proposed amendment with the expectation that it will pass.