The Homophobic Law and the Indiana Governor Who Dares Not Speak Its Purpose

By William K. Black
Bloomington: March 29, 2015

Sodomy, of course, was once referred to as the crime that dare not speak its name because the combination of fear and hate of straight males for gays was so intense that it was barbaric and even murderous.  It is a measure of how much things have changed that the haters now know that they dare not speak their hate.  They also know that they are losing.  The vast majority of gay Americans live in States with marriage equality and conservatives expect to that the Supreme Court will soon strike down as unconstitutional bans on marriage equality in the Supreme Court.  Some equality advocates are warning that the desperate measures like Indiana’s new law designed to authorize merchants to discriminate against gays are similar to the relatively successful strategy to attack abortion rights.  They are right to warn about the need keep working, but the LBGT rights are not analogous to reproductive rights.  I will discuss only one reason – business.  The paradox is that a law purportedly vital to protect the right of merchants to discriminate against gays is the last thing that merchants want.  Gays make very good customers.  They have income and they buy goods and services.  Merchants want to sell goods.

Businesses also need employees.  All other things being held constant, businesses prefer happy employees who will stay with the firm and become ever more efficient.  Employees need to buy goods and services and have the income to do so.  Employees like to eat at restaurants periodically and they prefer the experience to be pleasant.  The owners and officers of firms often take colleagues and clients to restaurants.  The purpose of doing so is for everyone involved to have a wonderful experience.

So here are two variants of the nightmare a business owner has relative to the Indiana law.  Four employees go out for lunch.  The waitress come over and points to the declaratory judgment of an Indiana justice of the peace proudly displayed on the wall.  It declares that the restaurant owner has the right under the Indiana Religious Freedom Restoration Act to deny service to those who are LGBT or support LGBT rights.  The waitress informs one of the employees he must leave the restaurant because he has what she believes to be gay mannerisms.

The second variant is that the owner of the firm takes an important client visiting from Illinois out to dinner.  The owner of the restaurant approaches the table and asks the client (who is straight) to leave because they do not serve sodomites.

There are, of course, innumerable variants on this theme.  They all offer extreme embarrassment followed by rage by the victims of the discrimination.

The Indiana Religious Freedom Restoration Act was drafted to be extreme.

“Sec. 5. As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

“Religion” is undefined.  The goal of Section 5 is to take the most extreme position possible.  “Religion” is whatever the individual decides.  The precepts of that religion are whatever the individual decides.  Those precepts do not have to bear any relationship to the actual precepts of any organized religion.  The precept does not have to be one that a believer is required to follow, indeed, it can be a view that the leaders of the faith reject.  There is no requirement that the “belief” be sincere or that there be any record of the individual having held such a belief.

The Indiana Act does not mention people who are LGBT.  It is far broader than that.  Any person in Indiana can invent a “religious” “belief.”  That “belief” could be that one should not associate with, touch, speak to, see, or serve any characteristic one can imagine – race, color, gender, nationality, age, eye-color, progressives, or the left-handed.  The focus on LGBT is because the purpose of the law is to encourage discrimination against LGBT and because Indiana has no law barring discrimination against LGBT.

The law’s ultra-vague standard and the ability of a person in Indiana to sue before any judge they choose seeking a judicial declaration that they have a right to deny service to someone because he or she was LGBT or a Muslim encourages judge shopping.  Finding a justice of the peace who is a proud homophobe in rural Indiana should be a piece of cake.

Section 9 of the law provides that the businessman can seek the declaratory judgment and even an injunction without normal “standing,” i.e., demonstrating “injury in fact.”

“Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.  If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.”

A sympathetic judge could easily find that any homophobic Indiana merchant is “likely” to be faced with requests for goods and services from LGBT customers.  The merchant will testify that his or her “religious” precepts would be injured by serving LGBT customers.  That will establish in the mind of a sympathetic judge proof that the merchant’s “religion” will “likely” be “substantially burdened” by the prospective customers and provide a basis for a declaratory judgment that the merchant has a right under the Act to deny services to customers he or she thinks may be LGBT.

The prospective LGBT customers have zero rights in this judicial process.  They get no notice of the lawsuit and no right to argue before the court to protect their rights.  If the merchant seeks a declaratory judgment that he or she has a right to deny services to LGBT, it is not clear that there is any “relevant governmental entity” that has a right to intervene.  There is provision in the Act that requires the merchant or the judge to notify any governmental entity of the lawsuit.  The Governor has directed his Attorney General to oppose any constitutional protections for LGBT, so even if Indiana were to intervene it would likely do so to support the request for a declaratory judgment.

The opportunities for merchants and senior Republican government officials in Indiana to stage a friendly suit in which the government of Indiana consents to the court issuing an injunction against the State forbidding it to enforce laws such as equal housing against a landlord.  Indiana’s officials want to be prohibited from protecting LGBT rights.  LGBT citizens of Indiana have no right under the Act to intervene and become a party to such a suit.

Pence: Freedom of Religion Ends if We Can’t Discriminate Against Gays

It is legal in Indiana to discriminate against LGBT.  Employers can fire LGBT workers on the “grounds” that they are LGBT with impunity.  Indiana Governor Mike Pence has long made clear his desire to ensure that no laws restrict the ability to discriminate against gays.  Indeed, in Penceland the “right” to discriminate against gays is a fundamental aspect of First Amendment “free expression” rights.

“The problem here is that by extending the reach of federal law to cover sexual orientation, employment discrimination protections, in effect, can wage war on the free exercise of religion in the workplace.”

Pence claims that the fact that so many Americans oppose discrimination against gays proves that they – not the people that discriminate against gays – are the intolerant.

“Pence addressed the critics Sunday, saying: ‘This avalanche of intolerance that’s been poured on our state is just outrageous.’ Asked if he would be willing to add sexual orientation to the list of characteristics against which discrimination is illegal, he said, ‘I will not push for that. That’s not on my agenda, and that’s not been an objective of the people of the state of Indiana.’”

Pence has emphasized in the last several days that he does not intend to provide any legal protections to LGBT against any form of discrimination.

Why Governor Pence Won’t Answer Questions About the Act Allowing Discrimination

Pence had a disastrous appearance on ABC in which he refused to answer the most basic question about the Act – six times – would it allow a merchant to refuse services to LGBT.  He did not answer the questions because he knew that if he did so he would have to admit that the Act was designed to allow merchants to discriminate against LGBT – and he knew that this was no longer acceptable among the majority of Americans and causes most young conservatives to roll their eyes about their parents’ obsession with gay bashing.