Can Connecticut Criticize Indiana When It Has Its Own ‘Religious Liberty’ Law?
On Monday morning, Connecticut Governor Dan Malloy (D) heightened the stakes in the battle over Indiana’s newly-passed “religious freedom” law, which critics and supporters alike contend would allow businesses to claim religious exemption to deny services to gays and lesbians. Calling the bill discriminatory, Malloy threatened to ban state-funded travel to Indiana.
It didn’t take long for critics to point out that Connecticut has its own version of the RFRA, or Religious Freedom Restoration Act, on its books. Isn’t this a blatant case of hypocrisy?
It’s not so easy. Connecticut also has progressive non-discrimination laws that include gays and lesbians as a protected class. In fact, Connecticut passed the protections in 1991, before President Bill Clinton signed the RFRA. (The law was updated in 2011 to include trans people.) In interviews with both the Indy Star and ABC News’ This Week, Governor Mike Pence (R) said that though he sought to clarify his bill’s language, he had no intention of making gays and lesbians a protected class.
But Connecticut’s anti-discrimination laws are subject to religious exemptions under its RFRA. Via GLAD, “Although the exemption is broad, it is not a carte blanche for an employer to use his or her religious beliefs as justification for discriminating against a gay or transgender person.” But over at the Federalist, Sean Davis argues that Connecticut’s religious exemption law is broader than either Indiana’s or the federal government’s by prohibiting any intrusion on the practice of religion, while the others forbid only a “substantial burden.”
It gets even trickier. Garrett Epps argues at the Atlantic that Indiana’s new bill is actually significantly broader than any preceding version, as “it has been carefully written to make clear that 1) businesses can use it against 2) civil-rights suits brought by individuals.” Allowing businesses to invoke the exemption against private individuals rather than the government is what’s led many to see the bill as implicitly but intentionally condoning discrimination. Via Epps:
Of all the state “religious freedom” laws I have read, this new statute hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people.
…The statute shows every sign of having been carefully designed to put new obstacles in the path of equality; and it has been publicly sold with deceptive claims that it is “nothing new.”
How do Connecticut’s religious exemption and its non-discrimination laws intersect? There’s no actual precedent. Recently a florist in Washington unsuccessfully sued to refuse service a gay couple; but Washington state doesn’t have an RFRA, meaning its anti-discrimination laws took precedence. Illinois — cited by Pence as an example of a state with an RFRA — has both religious exemptions and anti-discrimination laws, but no case has yet tried the possible conflict between the two; Illinois may have dodged that bullet by exempting clergy from performing gay marriages.
Dan Malloy clearly believes Indiana’s new law is purposely discriminatory, in a way that his state’s anti-discrimination laws protect against. Whether Indiana’s law will effectively allow discrimination, or be used to attempt to challenge anti-discrimination laws in Indiana cities, will ultimately be settled in the courts. In the meantime, whether you think Malloy is being hypocritical likely depends on your opinion of the law to begin with.
[Image via Mike Pence]
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