A Return to the Status Quo: Indiana’s So-Called RFRA Fix

Indiana State Rep. Christina Hale addresses a crowd of opponents to Indiana's Religious Freedom Restoration Act on the lawn of the Indiana State House on March 28, 2015.

Indiana legislators recently announced their much-anticipated fix to the state’s new Religious Freedom Restoration Act, or RFRA. The amendment was prompted by a national outcry from businesses, faith communities, and lesbian, gay, bisexual, and transgender, or LGBT, Americans and their allies in response to the discriminatory consequences of the bill, which could nullify existing municipal sexual-orientation and gender-identity nondiscrimination protections in Indiana.

With events quickly developing in the state, it is important to know exactly what the proposed fix would and would not do:

Would ensure that local LGBT nondiscrimination ordinances are not gutted

LGBT Hoosiers living in jurisdictions that already have municipal nondiscrimination protections—such as Indianapolis, Bloomington, and South Bend—would not see their rights rescinded.

Would not make it illegal to discriminate against LGBT Hoosiers

The amendment merely states that the act cannot be utilized as a defense in discrimination complaints. It does not provide a mechanism for the roughly 80 percent of the state’s population who currently lack inclusive and explicit protections against discrimination to bring sexual-orientation or gender-identity complaints.

Would not apply to religious nonprofits

Religiously affiliated nonprofits—such as hospitals, schools, and charities—throughout Indiana, including in jurisdictions with protections, would be able to invoke RFRA to deny services to LGBT individuals.

Would not limit the act’s impact beyond discrimination protections

Recently, the Supreme Court misconstrued the federal RFRA to limit access to some health care for employees of many for-profit businesses. The fix in Indiana does nothing to avoid a similar for-profit license to diminish other rights.

Conclusion

While the announced amendment is a much-needed revision to the discriminatory and dehumanizing law, it does not change the reality that it remains legal to discriminate against LGBT people in most of Indiana. The only way to make discrimination illegal in Indiana is for the state legislature to pass explicit sexual-orientation and gender-identity nondiscrimination protections. The events and confusion surrounding Indiana’s RFRA reinforce the need for an immediate federal response to both clarify the federal RFRA following the Supreme Court’s recent Hobby Lobby decision and pass uniform and clear LGBT nondiscrimination protections in employment, housing, public accommodations, and other important areas of life.

Sarah McBride is a Research Associate on the LGBT Research and Communications Project at the Center for American Progress.