On Civility, First Amendment Rights and Religious Freedom in Indiana

I understand the root of the outrage many people – in tech, business, politics and Hollywood – feel in response to Indiana’s Religious Freedom Restoration Act. With the Supreme Court on the verge of declaring gay unions a civil right in all 50 states, any action at the state level that diminishes those rights is dilutive and mean-spirited.

Passed by the Indiana General Assembly and signed by Gov. Mike Pence, the law gives for-profit business the right to the free “exercise of religion,” language that does not appear in similar federal legislation. And while the governor and legislature are now acting to “clarify” the law so that it doesn’t permit abject discrimination, that such legislation could garner such full-throated support from any state legislature is concerning. The Indiana law evoked such ire and condemnation that The Indianapolis Star dedicated its front page to an editorial denouncing the legislation under the banner headline, “Fix this Now.” To me, Indiana’s legislation brings to mind Jim Crow laws after Lincoln abolished slavery – slavery was then illegal, but subjugating African Americans was not.

As has happened so many times before, our nation has shifted to a new issue dividing us and we all feel we must take sides. I suggest we slow down and take a step back. The fact is, our national shift in attitude on this issue has been exceedingly swift. Remember, even President Obama’s opinion on gay marriage has evolved since he’s been in office. So, as the implications of this law unfold in Indiana, let’s take stock of their impact on business, the economy and public opinion, rather than merely deliver a reactionary response.

Indiana’s decision stands in stark contrast to the state’s position as an Innovation Champion, the highest level of recognition from the Consumer Electronics Association’s soon-to-be-released Innovation Scorecard. As a public accounting of best business practices for growth and innovation at the state level, the Scorecard ranks Indiana within the top echelon of nine states for its burgeoning tech sector employment. Indiana scored quite highly based on its 2014 policies, but the state may well lose this innovation-friendly status if its General Assembly does not take appropriate action on this issue.

From the business perspective, the best practice is to attract and attain best and brightest employees regardless of sexual orientation, which is why this law is particularly troubling. A person’s sexuality has nothing to do with their skills, ability or work ethic. And no one, gay or straight, should have to worry about discrimination disrupting their lives and careers.

That said, the political right is clearly protective of religious freedom and emboldened by the precedent set forth in last year’s Hobby Lobby Supreme Court decision, which upheld that a private business did not have to subsidize contraception when the business owners had religious objections. Given these court decisions pushing businesses at the edges, it is not surprising that religious conservatives are passing laws trying to protect their right to their religious beliefs. It’s even possible to not agree with their views but understand their logic. Yet these cases have a way of polarizing us in a manner that's not constructive.

Those in favor of Indiana’s new rule argue that while the law requires us to treat gay and heterosexual couples the same, individuals can and should have the right to discriminate. Of course, this is the same argument used to allow discrimination on the basis of race, religion or national origin, or even disability. But even today, certain types of discrimination are legal. We choose our friends, our spouses, who joins our private clubs and with whom our children play.

Ultimately, I find this debate sad and unfortunate. Of course, these laws are on the wrong side of history and will soon be overturned, but public battles like these are an unnecessary distraction. Americans from coast to coast, and virtually everywhere in between, are slowly warming to the idea of gay marriage. New state laws protecting “religious freedom” will never pass constitutional muster. But they reflect a grasping by many religious conservatives for some semblance of protection from what they view as an encroachment on their religion.

Let's be civil, not vilify people, and let the courts rule on the constitutionality of this law. Corporate and political leaders speaking out forcefully against the Indiana legislation and similar proposals may slow these proposals down or get additional legislation limiting their scope. If the American Midwest is not yet ready to accept this shift in both the law and attitude, we must exercise some patience.