1. Opinion

Column: Intent of Indiana law to protect discrimination

Published Apr. 2, 2015

The Hoosier Nation I once was proud of is gone.

I was born in Indiana. Like many in the late 1960s, my family moved to Florida, bringing with us those Midwestern values of hard work, kindness to our neighbors and teamwork on the basketball court.

Today, I am heartbroken by my birth state. The Midwestern values that make Indiana great have given way to the wave of Republican populism that is trying to make kin out of subversive, discriminatory legislation and the U.S. Constitution's unflappable commitment to freedom of religion.

It doesn't work. I know, because as a former six-term Florida state legislator I had the privilege of voting on Florida's version of the Religious Freedom Restoration Act, passed in 1998. It's simply not the same as Indiana's.

While many have offered rhetorical justifications for why the Indiana law is no different than the those in 19 other states that have passed similar laws — Florida included — the difference is simple and boils down to intent.

State-level laws, like the one I voted for 17 years ago that passed on a 114-5 bipartisan vote in the House, were thought to be progressive protections for religious minorities. At the time, debate on the Florida bill came from both sides of the aisle. A staunch conservative sponsored the bill but accepted an amendment for clarification from one of the most liberal legislators.

Gov. Lawton Chiles allowed this bill to become law without his signature, perhaps because both parties were satisfied and he didn't want to lend his political weight to a law that at the time seemed rhetorical in nature. This posture was consistent with his eloquent veto of prayer in school, which seemed to show that secular government is sacrosanct. It was a nimble political move.

It seems we have forgotten that the authors of the U.S. Constitution were descendants of victims of religious discrimination in Europe that caused them to flee to America. It's ironic that Indiana is using the U.S. Constitution's shield against religious persecution to exclude minorities the law originally was meant to protect. The federal version of RFRA was passed in response to a 1990 court decision in which two American Indians were discriminated against for practicing their religion.

The states that followed suit did so to mirror the federal protections allowing for individuals to exercise their religious beliefs without fear of persecution when those practices conflicted with laws of general applicability. The intent of the law was to protect religious freedom.

The state RFRAs did not apply to private businesses but to government action, which is another untenable rub of the Indiana law. In its current version, the Indiana law would encourage business owners to refuse service to individuals if the owner disagreed with the patrons' religious beliefs. The intent of the Indiana law is not to shield a person from government's interference in their practice of religious beliefs but to shield private actors from prosecution when they choose to discriminate.

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Simply put, Indiana's intent is to protect discrimination rather than religious freedom.

The fact that such legislation addresses religious freedom does not automatically make it free from the kind of critical reflection that may be applied by people of faith, like myself, who are far more concerned about freedom from discrimination than about being free from the responsibility of serving all people.

As a pastor's son, I don't remember any teachings that showed an attempt to avoid people of different beliefs in the stories concerning Jesus, who consorted with tax collectors, Samaritans, disabled persons and Romans in spite of the general public's rejection of them. Yet we have turned religious freedom on its head with laws like this to distance ourselves from our fellow Americans instead of welcoming them with hospitality and humility.

While I would be the first to uphold the establishment clause and free exercise clause of the U.S. Constitution, which are meant to protect against government interference with the practice of religion, I would balance that right with the right to be free of discrimination in open commerce when doing business in the public marketplace.

That balance should be marked by a society that is open to diversity, tolerant of differences and equal in its treatment of individuals in secular settings. I simply do not find persuasive the argument that religious freedom entails the selective rejection of equal treatment of business customers.

Intent has always been the driving force of the law. Indiana cannot add enough smoke and mirrors to camouflage the discriminatory intent of their version of this law.

Lars Hafner served in the Florida House from 1988 to 2000 as a Democrat representing a St. Petersburg district. He is a retired college president who consults for political and educational concerns.


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