Religious freedom laws like the one causing an uproar in Indiana have never been successfully used to defend discrimination against gays – and have rarely been used at all, legal experts say.
However, past may not be prologue in these cases, since gays have only recently won widespread legalization of same-sex marriage, and religious conservatives are now scrambling for new legal strategies to blunt the trend.
“There’s an inability to look to the past as a reliable predictor of the future on this,” said Robert Tuttle, a church-state expert at George Washington University School of Law. “If what you’re saying is that it can be certain it won’t be used – you can’t know that because this is now a different situation.”
Last week, Indiana Gov. Mike Pence signed the state Religious Freedom Restoration Act, giving heightened protections to businesses and individuals who object on religious grounds to providing certain services. The law triggered a swift and intense backlash from gay rights supporters, businesses such as Apple, and some states, which barred government-funded travel to Indiana.
Critics of the law say the intent is to discriminate against gays. They fear, for example, that caterers, florists, photographers and bakers with religious objections to same-sex marriage will be allowed to refuse to do business with gay couples. Supporters of the law say it will only give religious objectors a chance to bring their case before a judge.
Article continues belowOn Tuesday, Pence said he wants the Legislature to present him a bill by the end of the week clarifying that the new law does not allow discrimination against gays.
Pence said he does not believe lawmakers intended “to create a license to discriminate.” But he added: “I can appreciate that that’s become the perception, not just here in Indiana but all across the country.”