by John M. Curtis
(310) 204-8700

Copyright March 29, 2015
All Rights Reserved.

                 Signing SB101, the “Religious Freedom Restoration Act,” Thursday, March 27, 56-year-old Indiana Gov. Mike Pence deviated from a growing body of state and federal law that equates “sexual orientation” with civil rights.  Now in the U.S. Supreme Court, nine justices will decide by June whether or not same-sex marriage is now the law of the land.   States must abide by the Constitution’s supremacy clause requiring states, no matter what their religious convictions or regional preferences, to conform to federal law.  Make no mistake, Indiana’s “Religious Freedom Act” is, first and foremost, an attempt to assert states’ rights, over what Pence and backers in the Indiana legislature consider “federal overreach.”  Indiana officials can’t ignore the preponderance of legal precedents establishing sexual orientation as a civil right.   States with strong religious lobbies can’t flout established federal law.

             Pence deludes himself thinking that Indiana’s “Religious Freedom” law doesn’t discriminate against gay people.  Giving business owners the right to refuse to do business with homosexuals or lesbians because it violates religious convictions completely ignores the Constitution’s Separation Clause, requiring businesses to transact with all types of folks that might run afoul with their religious principles.  If, for instance, a bakery doesn’t want to bake a wedding cake for a same-sex couple, they, as public entity, should close their doors.  “This is not about discrimination, this is about empowering people to confront government overreach,” insisted Pence, admitting that Indiana rejects established federal law prohibiting any business from discriminating against race, religion, gender or sexual orientation.  “Look, the issue here is still a two-way street or not,” said Pence, making no sense.

             With religious fervor blinding them to appropriate federal law, Pence and the Indiana legislature asserted states’ rights at the expense of the U.S. Constitution.  “We’re not going to change this law,” said Pence, insisting Indiana has a right to ignore federal anti-discrimination laws.  Pence admits that, in his view, sexual orientation is not a civil right.  “Won’t be pursuing that,” said Pence, ignoring years of local, state and federal case law that establishes sexual orientation as a civil right.  When the Supreme Court finishes the same-sex marriage case this June, sexual orientation will morph from discrimination into a civil right.  Once the Supreme Court rules on same-sex marriage, the Supremacy Clause prohibits states from exercising what Pence refers of as “religious freedom.”  Indiana can’t ignore the Supreme Court when it rules that same-sex marriage is the law of the land.

            Judicial overreach is the buzzword used by religious groups when they want to discriminate under the First Amendment’s right to religious freedom.  It’s the same religious groups that lobbied hare for California’s Prop 8, a defense of marriage law that defined marriage as a union between a man and a woman.  Despite passing Nov. 4, 2008, it took nearly five years before the U.S. Supreme Court tossed out the initiative as unconstitutional Oct. 26, 2013, officially starting same-sex marriage in California.  Indiana’s governor and legislature did the same thing, voting in a law that’s bound to get tossed out in federal court.  “This avalanche of intolerance that’s been poured on our state is just outrageous,” said Pence, acting like the victim, when civil rights groups have a right to protest against any law seen as discriminatory.  Pence sees nothing wrong singling out gays and lesbians.

             States with heavy religious lobbies believe they’re immune to federal law that protects the sexual orientation rights of ordinary citizens.  Indiana’s SB101 allows religiously oriented businesses to say no to gays and lesbians or anyone else they find morally repugnant.  “We’ll work together to reverse SB101 and we’ll stand together to make sure that here in Indiana, we welcome everyone, every day,” said U.S. Sen. Joe Donnelly (D-Ind.), rejecting Pence and the GOP legislature’s “religious freedom act.”  If religious groups wish to discriminate against gays and lesbians they should confine the bigotry to religious institutions, not practice discrimination in the public square.  Signing SB101 into law fulfills a campaign promise to Pence’s constituents but turn’s Indiana’s clock back on civil rights.  No state can allow religious preferences violate well-established federal laws.

            Pence and the GOP-dominated Indiana legislature engaged in “overreach,” ignoring established federal laws and court cases prohibiting discrimination against sexual orientation.  Whether Pence and the Indiana legislature admit it or not, sexual orientation has been established as a civil right, analogous to race or religion.  Whether or not Pence is a hero to the religious right, he’s on shaky ground when it comes to SB101 violating the U.S. Constitution.  Individual states don’t have the right to circumvent established civil rights laws and court precedents that protect sexual orientation the same as gender, religion and race.  Indiana’s Religious Freedom Restoration Act puts religion—and its moral values—back in the public square, something prohibited by the U.S. Constitution’s Separation Clause.  Businesses operating in Indiana are subject to the same federal laws prohibiting discrimination.

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