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New state ‘religious freedom’ laws—and the states that are pushing back

March 31st, 2015  |  Joy Waltemath

By Pamela Wolf, J.D. and Joy P. Waltemath, J.D.

In light of Indiana’s new law that purports to guarantee religious freedom in the state but nonetheless would permit discrimination based on sexual orientation and gender identity absent a law saying otherwise, Connecticut Governor Dannel P. Malloy has registered his disapproval in the form of state action.

On Monday, March 30, only four days after the Indiana measure was signed, Malloy signed an executive order banning state-funded travel to states that have enacted legislation to protect religious freedom but yet “do not prohibit discrimination for classes of citizens.” The governor asserted that Connecticut has been a national leader in protecting against discrimination based on sexual orientation and gender identity.

Push-back against Indiana law. An outpouring of nationwide protest erupted immediately after Indiana Governor Mike Pence signed legislation adding a chapter to the Indiana Code entitled, “Religious Freedom Restoration.” Some businesses, including Google and Angie’s List, cancelled plans for expansion in the state, according to media reports. At least one proponent of the bill has openly stated that the measure would permit Indiana businesses to refuse to provide wedding cake and photography services to same-sex couples, CNN reported.

When asked by a CNN talk show host on Sunday whether this is true, Pence repeatedly sidestepped the question. One problem frequently cited by opponents of the broad measure is that there is no antidiscrimination law in Indiana that would protect LGBT individuals from discrimination based on their sexual orientation or gender identity. When the same CNN talk show host asked Pence whether he would support such a law, Pence said that he would not. However, CNN reported today that Pence has pledged that Indiana will fix the law to clarify that it does not condone discrimination against gays and lesbians.

Pence news conference. In a news conference held Tuesday, March 31, Pence repeatedly stressed that the law did not give a license to discriminate; that he abhorred discrimination; that the law did not give businesses the right to refuse service to anyone; and that he did not believe that members of the state legislature who voted for the law intended to allow discrimination or the denial of services to anyone. The Washington Post, however, has reported that during debate over the Indiana bill, “lawmakers voted down amendments to make clear that the law was not intended to foster discrimination.”

“Problem of perception.” Pence clarified in the news conference that he nonetheless supported legislative action “in the law itself” that would “allay the concerns and correct the misperception” that the law could foster discrimination. He continually referred to the negative public response to the bill as a “problem of perception,” comparing the bill to other similar state laws and the federal Religious Freedom Restoration Act and suggesting that the standard under the Indiana bill had been “applied for decades.”

As noted last week, however, Jeffrey I. Pasek, the immediate past chair of the Cozen O’Connor’s Labor & Employment Group, commented to Employment Law Daily that “This bill goes far beyond the federal RFRA in two ways. First, it allows individuals to claim exemptions from neutral government mandates even in cases in which the government is not involved.” Second, the new law also applies to a very broadly defined category of “person,” a definition more expansive than the Supreme Court’s Hobby Lobby decision, which Pence has also cited, had involved.

Connecticut response. Specifically, the executive order issued by Connecticut Governor Malloy directs that all agencies, departments, boards and commissions, the University of Connecticut, and the Board of Regents immediately review all requests for state-funded or state-sponsored travel to states that create the grounds for such discrimination and to bar any such publicly funded travel unless necessary for the enforcement of state law, to meet contractual obligations, or for the protection of public health, welfare, and safety. The EO is effective immediately.

“We cannot sit idly by and do nothing while laws are enacted that will turn back the clock,” Malloy said. “We need to keep moving forward and stand up against forces that seek to roll back progress. I’m sending a clear message with this executive order: Discrimination can’t and won’t be tolerated by the State of Connecticut. Nearly two decades ago, Connecticut was among the first states that passed a comprehensive anti-discrimination law concerning sexual orientation, and three years ago I enthusiastically signed a law adding gender identity and expression to those statutes. We need to do what we can to stand up and act against laws that allow—as a matter of public policy—individuals to be discriminated against. It’s unacceptable, and today, Connecticut has acted.”

Arkansas moves forward. As we go to press tonight, the Arkansas legislature has passed a bill, H.B. 1288, that is similar in some respects to the Indiana legislation in that it expressly allows for a private individual (or, at least in the Arkansas law, an “association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity”) to file a claim under RFRA even when the government is not a party to the claim.

D.C., N.Y. weigh in. Meanwhile, D.C. Mayor Muriel Bowser has reportedly issued an executive order to ban city-funded travel to Indiana until the state repeals its ‘religious freedom’ law. And in a statement issued today as well, N.Y. Governor Andrew M. Cuomo banned non-essential state travel to Indiana, noting that “New York State has been, and will continue to be, a leader in ensuring that all LGBT persons enjoy full and equal civil rights. With this action, we stand by our LGBT family members, friends and colleagues to ensure that their rights are respected.”