Indiana's 'Religious Freedom' Law Differs From Other States

Transcript

ROBERT SIEGEL, HOST:

We're joined now by Garrett Epps who teaches law at the University of Baltimore and who wrote about the Indiana law and other laws this week for The Atlantic. Welcome to the program.

GARRETT EPPS: Robert, good to be here.

SIEGEL: You've made a study of all these laws - the federal one and the state laws. Governor Hutchinson has found significant, important differences between the Arkansas bill and the federal law. He wants those differences, evidently, reconciled. How different, first of all, is the federal law from, say, the law in Indiana?

EPPS: There's a couple of key differences. The law in Indiana explicitly applies to private lawsuits. So, for example, a discrimination lawsuit between two individuals would be covered by the terms of the Indiana law. And there's still disagreement in the federal courts about whether the federal law does cover that and the text is silent.

SIEGEL: By what you mean, if somebody sues me and says I discriminated against her...

EPPS: Correct.

SIEGEL: ...And I say no, under my religious beliefs, I can't do business with or hire that kind of person, in that private lawsuit, the Indiana law - I might be able to use that as a shield.

EPPS: Yes, you could use it as a defense.

SIEGEL: In other states you can't do that?

EPPS: No. The leading case on this is a case called Elane Photography v. Willock out of New Mexico. And that was a case where a commercial photo studio wouldn't shoot a gay wedding. And when the couple sued the studio, the New Mexico Supreme Court said no, our law only applies against the government 'cause it had the standard language. And so the studio lost, and then this language found its way into the Indiana statute.

SIEGEL: That's a difference between the Indiana statute and the federal law and also many or nearly all of the other state laws.

EPPS: That's right. The only state law I have found that actually says a private right of action is the Texas law, and Texas then went on to put a provision in their law saying, but it doesn't apply to civil rights discrimination lawsuits. So they were very clear about that.

SIEGEL: Another difference that you wrote specifically about the Indiana law was that it grants status to corporations, to businesses.

EPPS: Yes, by its terms, it does. And if you read the language carefully, it actually grants free exercise rights under the statute to, I think, significantly more corporations than the Supreme Court did in its Hobby Lobby decision. Hobby Lobby said closely-held corporations. That language is not in the Indiana stature.

SIEGEL: Governor Pence of Indiana has requested changes in his state's law. Would there be any meaningful changes other than the provisions you've just cited here about corporations or about nongovernment lawsuits?

EPPS: The governor says he wants the law clarified in order to make clear that it is not, quote, "a license to discriminate." If he wants to do that, there's an easy fix, and it's the one that Texas adopted, Section 110.011 of the Texas code. That says this bill does not apply as a defense in a civil rights action except when such an action is brought against a church in a question of who can volunteer. So churches are protected, but the general nondiscrimination statutes like the ones in Indianapolis will not be affected. That would fix the problem, I think.

SIEGEL: Yeah. And the Arkansas law that Governor Hutchinson is sending back for revision - on a scale from the federal law to the Indiana law where does it stand?

EPPS: It's the most extreme state law I've ever seen. It doesn't say at the top, a bill to direct courts to allow discrimination, but it does almost everything else. It has a section that says that protection of religious freedom is the highest interest in Arkansas law, which means there's no interest in a civil rights statute that could overcome a religious objection.

SIEGEL: A defender of the Indiana law on thefederalist.com acknowledges the fear that a law like this could be invoked by a business to justify not serving gays and lesbians, but that writer says that even without in Indiana there being an antidiscrimination protection for gays and lesbians, nobody can point to any Indiana businesses that have been discriminating against gays. Is this more a speculative, hypothetical argument than a real-world argument?

EPPS: You know, it is, I think, an argument about what is going to happen when, as a lot of people assume, the Supreme Court ratifies the cases that say that same-sex marriage must be recognized in the States. At that point, I think there's going to be a number of disputes that come up with various service providers going from pediatricians to daycares to veterinarians not wanting to serve same-sex families.

And there have been such cases elsewhere, and some of these are going to end up in court. So no, there are no cases right now, but that doesn't mean there aren't going to be any, and if you look at the language that's used by the proponents of this bill in the legislature, they're saying this is to protect the Christian baker, this is to protect the Christian businessman. There's not a great deal of secrecy about it.

SIEGEL: Garrett Epps, thank you very much for talking with us.

EPPS: Great, I enjoyed it.

SIEGEL: Garrett Epps, professor of law at the University of Baltimore, wrote about these laws this week for The Atlantic. Transcript provided by NPR, Copyright NPR.