RFRA laws enacted before the Supreme Court ruled on Citizen's United vs. FCC (2010) and Burwell vs. Hobby Lobby (2014) were passed under the assumption they could never be applied to businesses. Those two rulings fundamentally changed the nature of RFRA and created their potential to undermine local LGBT consumer protections in states that lack comprehensive state-wide anti-discrimination laws. RFRA laws are perfectly benign in states that have comprehensive anti-discrimination laws. In states that don't, such as Indiana, they can be used to supersede local protections and allow businesses to deny the sale of goods or services to LGBT people.
The Indiana congressmen and lobbyists who wrote and sponsored Indiana's RFRA did so specifically to allow businesses such as florists and bakeries to refuse to serve gay couples. They proudly admit this. Although the language of the Indiana law is similar to most other versions, the differences that do exist all strengthen the law's ability to protect businesses from discrimination claims.
1) The federal version of RFRA was signed by Bill Clinton in 1993. It was designed to help Native Americans. It could only be used to help people (or what we are now forced to call "natural people" - the living, breathing types) resist action from government forces. It couldn't be used to help businesses at all. Before 2010, every version of RFRA passed was done so under the assumption that it could never be used to protect businesses - yes that includes the Illinois version that Obama voted for in 1998.
2) In 2010 the Supreme Court ruled for Citzens United vs FCC, and it suddenly became an open question as to whether an incorporated business with limited liability could have other first amendment rights beyond speech - specifically religious rights. This was a hypothetical question until 2014 when the Supreme Court cited the federal RFRA in ruling that Hobby Lobby could deny birth control coverage to it employees. After that ruling, Republican groups began aggressively exploring ways RFRA-style laws could be used to allow businesses to discriminate against minorities. The extent to which RFRA laws could actually do this was questionable because, in almost all versions, it uses language such as, "the government can burden someone's expression of religion if it has a compelling reason to do so".
3) What constitutes a compelling reason has never been fully decided. It is almost certain that RFRA laws could not be used to discriminate against people based on race, sex, age or national origin because the federal government already has laws protecting those classes. However, the federal government has no protections for people based on sexual orientation or gender identity. So, in a state that has no state-wide protections for LGBT people (like Indiana), a court could conclude it has no compelling interest in protecting them. That is why RFRA has become an LGBT and why it is only an issue in states that lack state-wide discrimination protections for LGBT people. Such laws have become a potential means for Republicans to supersede local LGBT protections and furthermore are a symbol of hatred directed at LGBT people.
4) This is exactly what is happening in Indiana. We are a state that has no state-wide protections for LGBT customers, but we do have such protections at the local level. We are also a state where a gay marriage ban has recently been ruled unconstitutional and a proposed amendment had been abandoned. The primary forces involved with both the gay marriage ban amendment and RFRA are two powerful Republican non-profit groups, The Indiana Family Institute and Advance America, along with many state senators and representatives affiliated with them. The author of Indiana's RFRA, Dennis Kruse, was also the author of Indiana's gay marriage ban amendment and a long-time affiliate of both The Indiana Family Institute and Advance America. Mike Pence is also a close affiliate of these two groups. The Indiana Family Institute is run by Curt Smith. Advance America is run by Eric Miller.
5) After the gay marriage ban amendment was abandoned, Smith, Miller, Kruse, Pence and others began working on RFRA laws as a means of allowing businesses to refuse to serve gay couples. This was their publicly stated purpose. These men are on record numerous times admitting that this was the purpose of the bill. Eric Miller's Advance America website STILL admits (proudly!) that this is the purpose of this law. Mike Pence spoke with George Stephanopoulos today to clarify the meaning of the law. Stephanopoulos asked him, point blank, if the law is suppose allow businesses to refuse to serve gay couples, citing Eric Miller's website, and Pence refused to answer.
Here is the by-line of the Indiana RFRA showing Dennis Kruse as the author:
Here is Dennis Kruse's Indiana Senate Bio showing his long-time affiliation with Indiana Family Institute and Advance America (Look under 'Activities'):
Here is Advance America's website congratulating Pence and Kruse for getting the law passed:
Here is the picture of the bill's signing with Pence directly flanked by Curt Smith, Eric Miller and Dennis Kruse (Kruse is old guy on Pence's direct left obscured by text boxes):
Here is the interview with Stephanopoulos:
So when Mike Pence (or anyone involved with passing this law) tries to say it isn't about denying services to gay couples, he is lying.
7) Although Indiana's RFRA is similar to most other versions, the differences that do exist all all strengthen the law's ability to protect businesses from discrimination claims. An excellent summary of these differences can be found here:
http://joshblackman.com/blog/2015/03/26/comparing-the-federal-rfra-and-the-indiana-rfra/
6) While repealing Indiana's RFRA would prevent the subverting of Indiana's local LGBT protections, it isn't necessary or sufficient to protect the rights of all Indiana's LGBT people. RFRA laws can only be used to legalize discrimination against classes of people who's rights are not already protected by state anti-discrimination laws. Hence the more important step for Indiana to take is to make LGBT people, and all classes of people, protected from discrimination at the state-wide level.
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