*A law professor who has won over 100 anti-discrimination legal actions, and is on the record against discrimination based upon sexual orientation or sexual identity, nevertheless is critical of the LGBT community for misrepresenting the effects of Indiana’s new RFRA statute, and trying to use it to pressure the state into extending them protection.
Since Indiana has no state-wide law requiring businesses to serve individuals who are gay or transgender, the new statute – which in some rare cases may make it more difficult for the state to require citizens to do something which conflicts with their religious beliefs – would not take away any existing rights, because no such rights exist. A photographer, for example, can go so far as to refuse to allow gays to enter his shop. In a more likely situation, he can lawfully refuse to photograph a gay wedding if it conflicts with his religious beliefs or for no reason at all.
Only a small number of municipalities in Indiana have ordinances on the books which require businesses to serve people regardless of their sexual orientation or identity, and in those few municipalities the new RFRA might have an impact in rare cases, but that is certainly not the impression most people have been given, says public interest law professor John Banzhaf.
Moreover, many LGBT advocates and their supporters seem to suggest that the appropriate remedy is for the state to follow only a minority of states and ban such discrimination on a state-wide basis. But neither the federal government nor a majority of states have laws which ban discrimination by businesses on the basis of sexual orientation, and an even smaller number of states extend that protection to sexual identity. Thus, that proposed remedy goes far beyond any impact the RFRA statute might possibly have, says Banzhaf, and appears to be contrary to what the governor and many if not most Indiana legislators are interested in doing.
While many, including Banzhaf, favor such statewide laws, he suggests that it’s inappropriate if not unfair and deceitful to seek to pressure the state to pass such laws based upon exaggerating rather than reasoning.
Others seem to be arguing that the RFRA statute should be amended to provide that it can never be applied in situations where the alleged discrimination is based upon sexual orientation or sexual identity, but that would seemingly elevate those two protected classes above all others.
For example, if that were done, and there were a state or local law prohibiting discrimination based upon race, ethnicity, gender, and sexual orientation, a photographer asked to take pictures for a gay wedding would have no legal defense, even if the requested acts violated his deeply seated religious convictions.
On the other hand, a photographer asked to take pictures for a wedding of two Palestinians, during which he and she will pledge to wipe Israel off the map, would have a possible defense based upon his religious beliefs. Similarly, a Jewish deli which caters weddings might have a defense under the RFRA statute if it were asked to include pork barbeque; a female Muslim photographer might have a defense if called upon to take photographs in such a way that her head would have to be uncovered; and any photographer who objected on religious grounds to photographing a wedding of nudists or swingers could at least go to court and argue his case.
But, in the cases of gays, their rights to services would be far stronger than in all the other discrimination situations. Those supporting the new law in Indiana, and other similar statutes being considered in Arkansas and other states, have seemingly misrepresented or at least obscured their purposes, and even in some cases the effect of such statutes. But, says Banzhaf, there is a chorus of people bringing that misconduct to light.
On the other hand, few are speaking out about the tactics of the LGBT community, perhaps because of fear of being branded as homophobic, or worse.
Decisions as to whether or not a state should force business to provide services to any class of people – whether its gays and lesbians, transvestites, transgendered people, smokers, nudists, etc. – should not be based upon a governor’s bad performance on one TV program, nor on exaggerations generally, but rather upon the merits of the proposal, and how many legislators support it, argues Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW Washington, DC 20052, USA (202) 994-7229 // (703) 527-8418 / https://banzhaf.net / @profbanzhaf
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