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Volokh Conspiracy

Indiana to exempt civil rights protections in its Religious Freedom Restoration Act


The Indiana legislature is poised to adopt an amendment to the state's recently passed state Religious Freedom Restoration Act, about which I have written critically. The text of the amendment is available here. While it does not enact affirmative anti-discrimination protections statewide, the amendment helps to ensure that local laws in Indiana protecting gay and transgender people from discrimination are not subject to RFRA-based claims that the laws impose an unjustified "substantial burden" on the exercise of religion. The amendment still has to be passed by both state houses and signed by the governor.

The core of the amendment specifies that the law "does not authorize a provider" to refuse "services, facilities, use of public accommodations, goods, employment, or housing" to any person "on the basis of race, color, religion, ancestry, age, disability, sex, sexual orientation, gender identity, or United States military service." It also specifies that the RFRA "does not establish a defense to a civil action or criminal prosecution" for refusing to provide the same things based on the previously listed categories.

The amendment defines "provider" in a broad way to include "one or more individuals, partnerships, associations, organizations, limited liability, companies, corporations, and other organized groups of persons." The word "provider" does not include nonprofit religious organizations that qualify for certain tax exempt status under federal law. It also does not include religious leaders, such as rabbis, ministers, and priests.

Overall, if it passes and is signed, the amendment is a significant carve-out from the state RFRA, the first recognition by the state that sexual orientation and gender identity are matters of legitimate anti-discrimination concern, and an important first step toward a comprehensive anti-discrimination law in the state.

UPDATE: The legislature passed the amendment (with no Democrats supporting it) and Gov. Pence has signed it.