Do corporations get religious rights? Last year the Supreme Court said they do. Now Indiana says they don’t, at least when it comes to refusing services based on sexual orientation.
After a week of being lambasted for passing a new religious freedom law, Indiana policymakers added language Thursday making clear that if corporations — as well as individuals or other businesses — are sued for denying goods or services on the basis of sexual orientation, they can’t use the new law as a defense.
But the Supreme Court moved in the opposite direction last summer, expanding religious license for certain corporations in its Hobby Lobby decision.
In that decision, the court relieved the craft store Hobby Lobby and other closely-held corporations of providing birth control coverage for workers if the owners cite religious objections. For the first time, it said the federal Religious Freedom Restoration Act — a law passed by Congress in 1993 — applies to corporations.
Unlike the federal law, Indiana’s version explicitly applies religious protections to corporations. But now state lawmakers have dramatically qualified that, adding language that specifically prohibits nearly everyone from discriminating on the basis of sexual orientation — like, for example, refusing to bake a wedding cake for a same-sex couple.
“This new amendment wipes away a lot of the work the Hobby Lobby decision actually did,” said Josh Blackman, a constitutional law professor at South Texas College of Law.
Indiana’s move doesn’t change the Hobby Lobby decision. Corporations can still get exempted from the birth control mandate, which was handed down by the Obama administration as part of the Affordable Care Act.
But it does refocus the spotlight on what sorts of religious protections businesses should be given.
“I think the conversations in the last week or so have exposed the risk posed by the Supreme Court’s decision,” said Rose Saxe, an attorney for the American Civil Liberties Union.
Under the original version of Indiana’s new law, if businesses were sued by a gay or lesbian couple for refusing services, they could invoke the law as a defense, although a final ruling would be up to the judge. But the new language added Thursday prohibits them from invoking the religious freedom law if they discriminate on the basis of sexual orientation.
The law still gives them a defense in other cases in which they believe their religious freedom is being infringed. For example, if a Muslim barber refused to cut a woman’s hair.
The House and Senate approved the language Thursday afternoon and sent it to Gov. Mike Pence, who signed it. Earlier in the day, Arkansas Gov. Asa Hutchinson signed a similar law after ordering that it be changed to more closely align with federal law.
Lawmakers moved rapidly to clarify the measure after a week of sharp criticism from all sides, including from states and major companies who threatened to boycott Indiana by restricting travel there and canceling conferences.
But the changes aren’t appearing to pacify liberals or keep conservatives happy. The ACLU says the fix doesn’t go far enough. And religious freedom groups on the right said it takes the teeth out of the statute.
Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, called it a “lousy” proposal.
“It holds out the possibility of criminally punishing people for their religious objections,” he said. “It’s a very broad loophole. It’s being done under the cloud of the angry crowd and it’s going to have a lot of unintended consequences.”
