This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
- U.S. Constitution, Article Six, Clause 2 (a.k.a.: the Supremacy Clause)
Those of you familiar with this blog will know that I often write about heading to GenCon, the massive gaming convention that's been held in Indianapolis over the past decade. So my ears perked up when I heard that GenCon was one of a number of companies (GenCon LLC is the actual entity that runs and organizes GenCon as a for-profit enterprise) that published an open letter to Indiana governor Mike Pence encouraging him to veto a bill that would, in theory, protect the religious liberty of Indiana residents.
Pence, who is said to have entertained hopes of contending for the 2016 Republican presidential nomination, signed the bill into law anyway.
GenCon CEO Adrian Swartout then published another open letter, this one to the GenCon community, explaining that, while GenCon had been happy with their partnership with the city of Indianapolis, and that they were honoring their contract with the city to continue to hold the convention there through 2020, they were also planning to carefully monitor the environment in the city and that the impact of the new law might well convince GenCon to make different arrangements for the convention in 2021 and beyond.
Since following this evolving situation, I've noted a lot of commentary about it -- the mass media seems to have gravitated to the novelty of a game convention company making a political stand against a state government -- and among that commentary, there is, unsurprisingly, a lot of misinformation and confusion. While I'm not a lawyer, the text of the actual law is fairly free of legalese and isn't terribly long, so I thought I might address some of the more egregious misunderstandings and mischaracterizations. Let's begin.
Why does GenCon have to get involved in politics anyway? Why can't they just focus on running an awesome convention?
Because the law has the ability to seriously impact the experience of GenCon convention-goers in ways that GenCon can't control, at least not under its current contract. To understand why this is, you need to understand what it is the law does.
The law's defenders state that the intent of the law is simply to protect the religious freedoms of the citizens of Indiana. But once you look at the law, it's clear that something much bigger is in play.
The law consists of 11 sections. Section 1 uses a spaghetti-list of legal terms to make clear that any law or other practice of a government is subject to this law. (Note that this section can't make the law apply to federal laws or practices, but it can apply to county, city, or other local Indiana government entities; this will become important later.) It also notes that all such laws are affected regardless of whether or not they were made before this section became law itself.
Section 2 says that only laws that specifically exempt themselves from this law are exempt, and specifies how to word such a law.
Section 3 deals with the Establishment Clause of the First Amendment to the U.S. Constitution -- for those who aren't legal scholars, the Establishment Clause is that clause in the First Amendment that says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This is the law's first big cover-your-ass moment: the writers of this law knew that it could not affect federal law, and that to pretend that it could might well cause the U.S. Supreme Court to eventually rule that the law violates the U.S. Constitution, specifically the Supremacy Clause noted at the beginning of this post. Section 3 is basically a long paragraph saying that nothing in this law should be taken as a challenge to the supremacy of federal law as defined in the Constitution. The law also sneakily uses the word 'granting', burying in the middle of the text a definition that changes the meaning of the last sentence of the section -- "(c)Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter." The sneaky part? The earlier sentence that says, "'Granting', used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions." In other words, giving someone government money or benefits doesn't violate this law, but that doesn't apply to denying someone government money or benefits.
(Aside: it's not clear what part of the law Governor Pence is referring to when he claims that the existing law doesn't allow businesses to discriminate, but it's likely this one, as only one other chapter really comes close. Problem is, this section only applies to the distribution (or denial) of government benefits, which private businesses have no control over. If Governor Pence really thought that a protection against discrimination was in this law, then he was duped by his political allies, which doesn't bode well for his future in higher politics.)
Section 4 simply defines 'demonstrates' as a short-cut for 'meets the burdens of going forward with legal action under this chapter'.
Section 5 is short, but very sweet. It defines 'exercise of religion' as any exercise of religion, even if it is not required by a religious authority and even if it is not central to an established system of religious belief. In other words, if you say "this thing that I am doing is an exercise of my religion," this section has your back, because an opponent cannot claim that since no one in your faith requires you to do it and it is not considered a sacrament, that it therefore isn't a 'true' exercise of religion.
This section is clearly the part that people are jumping on to claim that the law authorizes discrimination against gay, lesbian, bisexual, and transgender (GLBT) people -- few religious authorities command it, and many flavors of faith don't require it, but if you assert that your faith includes a need to not associate with GLBT people, that assertion is covered as an exercise of your religion. The only real question is, what under this law doesn't count as an exercise of religion?
Section 6 defines the governmental entities subject to this law. Unsurprisingly, they are all Indiana-specific, largely defined by a different Indiana law.
Section 7 defines 'person' under this law, and it's a doozy. A 'person', for the purpose of this law, can be any of the following:
- An individual
- A church
- An organization or group organized and operated primarily for religious purposes
- A business that exercises practices compelled or limited by a system of religious belief held by its owners and/or controllers, and that can be sued
Remember the old Sesame Street game, "one of these things is not like the others?" Try that here.
This is the specific section that critics say enables discrimination against GLBT folks. If you own a company, and you operate that company in such a way that the company itself can be said to practice your religion, then...well, we'll get to that.
Section 8 is the real meat of the law. It says that the governmental entities defined in section 6 cannot burden a person's (as defined in section 7) exercise of religion unless the governmental entity can demonstrate that the burden is necessary for a "compelling governmental interest" and that the burden is the "least restrictive means of furthering that compelling governmental interest".
Now for those of you who don't make a habit of reading Supreme Court decisions in your spare time, you may not realize that these two quoted phrases above have special meaning in U.S. law -- specifically they are two of the three 'prongs' in what is referred to as strict scrutiny, which is the most stringent standard of judicial review used in U.S. courts. Interestingly, the law does not include the third prong of strict scrutiny -- that the law must be "narrowly tailored" to achieve its interest. This is an interesting and likely deliberate omission, because it allows the writers of this law to pass other laws which may have wider influences than the actual written text, without those writers needing to worry that a court will find their law overbroad in scope and thus unable to satisfy this section. In other words, it's what tech people refer to as a 'backdoor' -- it allows lawmakers familiar with this law to write other laws that won't be affected by this one, despite not explicitly exempting those laws from this one. They get to have their cake and eat it too. Of all the commentary I've seen on this law, none has addressed this specific point, and if this law is eventually challenged in the U.S. Supreme Court, it is the lack of narrowly tailored analysis that will likely cause the law to be struck down.
Section 9 gives the actual effect of the law. If a person's exercise of religion is violated under this law, that person may invoke the law as a defense against the government action that would restrict that person's exercise of religion. So, for example, if a baker in Indianapolis refuses to bake a cake for a gay marriage and is sued under the city's anti-discrimination laws, the baker can, if he asserts that not associating with gay people is part of his religious beliefs, use this law as a defense against the lawsuit. The city of Indianapolis must then, as part of the suit, successfully argue that their anti-discrimination law meets two of the three prongs of strict scrutiny for the lawsuit to continue to go forward. It also contains a very weird clause that is both necessary for the law to function and makes the law a very powerful tool for those who prefer a specific kind of religious protection -- it says that if a governmental entity is not a party to a proceeding where a law is being challenged by this law, then the government has an unconditional right to intervene in the proceeding to respond to the challenge. In other words, in the baker scenario above, the government would be able to (and must, for the suit to go forward) step into the case and argue that its law passes strict scrutiny**.
** - to all law students out there, yes, the law doesn't actually require the third prong, and so isn't technically 'strict scrutiny'. I'm using a short-cut and am not a lawyer anyway.
(This is the other part of the law that could arguably be what Governor Pence is talking about when he says the law doesn't authorize discrimination, since Pence is himself an attorney. The argument is that any anti-discrimination law that cannot already meet strict scrutiny isn't enforceable anyway, and if the law can meet strict scrutiny, then this law won't stop it from being enforced. The problem with this argument is that it's exactly backward -- if a government action or law is seeking to restrict a fundamental liberty, it must pass strict scrutiny, but if it exists to preserve a fundamental liberty, then it only needs to pass what's called a rational basis test. Equal protection claims are explicitly decided on a rational basis test, which this law would require to be judged on a much harsher basis. So again, either Governor Pence is lying, or he's not very intelligent, because the difference between rational basis and strict scrutiny review is something that's, at least in theory, taught in every undergraduate law college in the U.S.)
The kicker is that the government is given the right to intervene, but not the obligation to do so, and if the government chooses not to intervene, then the suit fails because the defendant's invocation of this law as a defense cannot be overcome. This allows the government to pick-and-choose which kinds of religious freedom they wish to allow. In the baker scenario above, the city of Indianapolis might well choose to intervene, since it's their law that's being challenged, but under a new mayor and/or city attorney, they might well choose not to, allowing the suit to fail. Meanwhile, a different suit involving a Muslim refusing to serve a Christian might well get the state to intervene on the Christian's behalf.
Section 10 is the insult added to injury -- it explicitly states what I alluded to above, that if the state fails to meet its burden of strict scrutiny, the defense provided by this law applies to "all parties" (which means the lawsuit fails). Not only that, but the chapter also explicitly allows the court to provide 'relief' to the defendant, both in the form of specifically allowing the defendant to perform his religiously-motivated activity, as well as possibly even getting 'compensatory damages' (i.e.: money) from the government.
At first glance, Section 11 seems to be a bolted-on extra that doesn't make a lot of sense compared with the rest of the law, but there is method to the madness. Yes, it's another cover-your-ass moment, and the most telling one in the whole law. You see, Section 11 states that this law is not intended to and should not be interpreted to create any claim in law against a private employer.
Why? Because while the U.S. Congress hasn't passed any law making GLBT people a 'protected class' for purposes of Fifth and Fourteenth Amendment protections under the law, it has passed laws specifically forbidding discrimination in employment based on sexual and gender identity. If someone tried to use this law as a defense against refusing to hire or firing an employee because he was gay, this law would fail and be struck down. To avoid this, the writers of the law included this exception -- since if the law can't be used in a legal proceeding regarding employment, then the constitutionality of the law can't be considered in that legal proceeding. Neat, huh?
That's it. That's the law and what it does.
I still don't get it. As long as GenCon doesn't discriminate, why should they care about this law?
Because while GenCon can mandate the behavior of their vendors and volunteers through contracts, GenCon cannot guarantee that other businesses do so. A lesbian couple who is refused a hotel reservation, a gay couple refused service in a restaurant, a transgender person kicked out of a mall store for using the 'wrong' restroom, all of these people will have negative experiences which they will associate with the convention, since the convention is the reason they are there in Indianapolis in the first place. And while GenCon has a contract with the city, it's very unlikely that the contract includes a specific point requiring the city to ensure that convention-goers are treated equally and fairly -- why would such a point be needed, when Indianapolis has laws requiring it? Except that now, under state law, local Indianapolis businesses can ignore Indianapolis law as long as they can make a religious freedom claim under the new law. The more GLBT people who are aware of the possibility of being legally discriminated against, the more likely they are to stay away.
That's the nightmare scenario, and one GenCon is working very hard to avoid -- GLBT people may not be a huge percentage of potential attendees (though given the relative youth of GenCon attendees compared to the general population as well as that gaming itself long was considered an 'alternative' lifestyle, it's likely the percentage of GLBT gamers is larger than that in the general population), but a larger percentage of people know an GLBT person and may choose not to attend in support of their friends and relatives. GLBT celebrities may refuse to serve as Guests of Honor -- George Takei, a high-profile celebrity gay-rights activist, has already announced that he will not attend events in Indiana.
Over the past few years, GenCon has seen amazing growth in its convention attendance, and fears over discrimination might well stop that growth and even begin a downward trend, one which might well turn into a death spiral if not managed well.
So what? A private business owner should have the right to not serve anybody he doesn't like.
Addressing this one is outside the scope of this essay, but I'll just point out two things:
- A private business owner is already prevented from discriminating against actual or potential employees through protections in federal employment law. As noted in the discussion of Section 11 above, the writers of this law are aware of this and specifically included language to ensure that this law is not challenged on those grounds by making the law inapplicable to employment issues.
- Many businesses are operated as 'public accommodations'; if a private entity makes itself accessible to the public, it must abide by laws that deal with public accommodations, including the Civil Rights Act and Americans with Disabilities Act. Reading up on the concept of 'public accommodations' might well enlighten you a bit on what is required of an ostensibly 'private' organization.