Amid the outcry over Indiana’s passage of the Religious Freedom Restoration Act (RFRA), Memories Pizza, a restaurant near South Bend, announced that it would never cater the weddings of gay customers, citing RFRA and its own Christian values.
But Memories Pizza ignored a basic fact. No, not the absurdity of catered pizza at a wedding. Memories Pizza failed to recognize that a restaurant could already lawfully refuse service to gay customers long before RFRA came to pass in Indiana.
That’s because under Indiana law, no protections exist for gay or transgender persons facing discrimination.This remains true even after Indiana’s recent changes to the RFRA law in response to widespread criticism. Because sexual orientation or gender identity are still not “protected classes” in Indiana, businesses and individuals can lawfully refuse to serve a gay customer or refuse to hire a transgender job candidate.
Indiana is not alone in this respect. In 28 states and under federal law, discrimination against gay or transgender persons by a private business is entirely legal.
Federal anti-discrimination law emerged as a meaningful source of protection from private discrimination in 1964, when Congress passed the Civil Rights Act. Not surprisingly, the 1964 Act does not explicitly protect gay or transgender Americans, and Congress has since failed to update the law to add sexual orientation or gender identity as protected categories.
Fortunately, many states have stood up for equality where the federal government fell short. Today, some 22 states and the District of Columbia offer comprehensive discrimination protections for their gay and transgender residents.
Yet sixty-one years after the Civil Rights Act passed, and fifty-six years after the Stonewall Riots, at a point where the Supreme Court is widely expected to find that the constitution guarantees a right to same-sex marriage, millions of LGBT Americans living in some twenty-eight states face the threat of losing their job or being denied service for who they are.
Despite these glaring gaps in equality, advocates of LGBT rights have come down hard against something else entirely — state RFRA laws. Prominent voices such as Tim Cook, the CEO of Apple, and newspaper editorial boards have said that the Indiana law sanctions discrimination against LGBT people.
But the story of the federal RFRA passed by Congress in 1993 has not been so malevolent. That law, which passed with overwhelming bipartisan support, has helped countless individuals of minority faiths practice without government interference. This is particularly true for the incarcerated, for whom RFRA has proved essential in making Kosher meals or the wearing of head coverings available to Muslim and Jewish inmates.
To be fair, the timing of these laws casts doubt on their good intentions. Moreover, RFRA laws passed on the state level bear some potentially meaningful differences, such as including businesses among those entitled to protection for their “beliefs.”
And it is possible that these new state RFRA laws could be used to circumvent discrimination protections when they interfere with a person’s exercise of religion. But this legal theory is largely untested. Circumventing anti-discrimination laws will not be easy, since preventing discrimination likely ranks as a “compelling government interest.”
Ultimately, it’s just not yet clear whether RFRAs pose a real danger to anti-discrimination laws and equality for LGBT people. But one thing is clear. Indiana’s RFRA cannot short circuit discrimination protections that do not exist.
These religious freedom laws are a threat to the LGBT movement, but not because they are a license to discriminate. They are a distraction, a means of changing the subject. We should prefer a fight against prejudice and real life discrimination over one against the free exercise of religion.
Tim Cook no doubt had good intentions when he spoke out about Indiana’s law, but he picked the wrong fight. Advocates of LGBT rights should ignore the religious freedom boogeyman. Until we have proof that these laws pose a real threat, we should keep our eyes on the prize: achieving full equality under the law.
So if Americans are opposed to bakers, wedding photographers or even pizzerias turning away gay couples, they should be devoting their energy to passing an anti-discrimination law — not opposing the dubious threat of religious freedom.
Adam Amir, JD ‘15
Jonathan Frank, JD ‘15
Stanford Law School
Contact Adam Amir at adamamir ‘at’ stanford.edu and Jonathan Frank at ‘jdfrank’ at stanford.edu