A Citizen's Guide to Indiana

Masson's Blog

The Continuing Legacy of Richard Mourdock

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Advance Indiana has a post about a lawsuit filed by Richard Mourdock’s former chief deputy, apparently based on a sketchy employment contract into which Mourdock attempted to lock his successor. The lawsuit is the subject of an AP story in the South Bend Tribune.

The former deputy, Jim Holden, is suing current state Treasurer Kelly Mitchell in Marion County Superior Court, alleging that Mitchell fired him upon taking office.

Holden says that in the final months of Mourdock’s term, Mourdock gave Holden a three-year, $300,000 contract as counsel for the Indiana Board for Depositories, which the treasurer’s office oversees.

That contract was to take effect on Mourdock’s last day in office and cover most of the next treasurer’s term, with an automatic extension if Holden was called up to active duty with the National Guard, WIBC-FM reported.

According to Advance Indiana, Holden is advancing claims based on breach of contract and, also, under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is a law designed to protect individuals from adverse employment actions based on their military status and to secure re-employment for individuals who have left their employment to serve in the active military for up to five years. The goals of USERRA are laudable but can be onerous for employers depending on the situation.

HB 1305 – Driving Slowly in the Left Lane

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A provision in HB 1305 concerning an obligation not to hang out in the left lanes has received some attention lately. I’m not sure how much coverage the actual text of the statute has received, so here it is:

SECTION 69. IC 9-21-5-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2015]: Sec. 9. (a) A vehicle that travels at a speed less than the established maximum shall travel in the right lanes to provide for better flow of traffic on the interstate highways.
(b) This subsection applies to the operation of a vehicle:
     (1) on a roadway that has two (2) or more lanes of traffic in each direction; and
     (2) in the left most lane, other than a lane designated for high occupancy vehicles.
Except as provided in subsection (c), a person who knows, or should reasonably know, that another vehicle is overtaking from
the rear the vehicle that the person is operating may not continue to operate the vehicle in the left most lane.
(c) Subsection (b) does not apply:
     (1) when traffic conditions or congestion make it necessary to operate a vehicle in the left most lane;
     (2) when inclement weather, obstructions, or hazards make it necessary to operate a vehicle in the left most lane;
     (3) when compliance with a law, a regulation, an ordinance, or a traffic control device makes it necessary to operate a vehicle in the left most lane;
     (4) when exiting a roadway or turning to the left;
     (5) when paying a toll or user fee at a toll collection facility;
     (6) to an authorized emergency vehicle operated in the course of duty; or
     (7) to vehicles operated or used in the course of highway maintenance or construction.
(d) A person who violates this section commits a Class C infraction.

Less remarked upon is the existing provision in IC 9-21-5-7, amended somewhat by current legislation which reads:

Sec. 7. (a) A person may not drive a motor vehicle at a slow speed that impedes or blocks the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with the law. A person who is driving:
     (1) on a roadway that has not more than one (1) lane of traffic in each direction; and
     (2) at a slow speed so that three (3) or more other vehicles are blocked and cannot pass on the left around the vehicle;
shall give right-of-way to the other vehicles by pulling off to the right
of the right lane at the earliest reasonable opportunity and allowing the
blocked vehicles to pass.
(b) A person who fails to give right-of-way as required by subsection (a) commits a Class C infraction.

People are having fun with the tacit accommodation of the fact that people speed, and I suppose that’s fair. But the concepts at play here aren’t that tough. Motorists aren’t responsible for enforcing speed limits. If you want to go the same speed as a motorist in the right lane, do it behind that motorist and not to their left. If you want to get in front of the person ahead of you, do it quickly.

Generally there seem to be two or three things that lead to people hanging out in the left lane – 1) Not trusting other motorists to also play by the rules, resulting in you getting trapped in the right lane; 2) Not being comfortable with your ability to use passenger’s side rear view (I speculate due to the inordinate number of mini-vans hanging out in the left lane); and maybe 3) being an oblivious jerk. This law would seem to be an attempt to address items #1 and 3 to some extent.

Also, when was the last time you saw someone pull over to the side when they had three or more cars behind them?

Seventh Circuit Upholds Highland Park Semi-Automatic Weapons Ban (Updated: Supreme Court denies certiorari over dissent by J. Scalia and Thomas)

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In a 2-1 decision, a panel of the 7th Circuit upheld a ban on “assault weapons” by the City of Highland Park, Illinois. Judges Easterbrook and Williams upheld the ordinance. Judge Manion dissented and would have struck down the ordinance as violating the Second Amendment.

The City of Highland Park has an ordinance (§136.005 of the City Code) that prohibits possession of assault weapons or large?capacity magazines (those that can accept more than ten rounds). The ordinance defines an assault weapon as any semi?automatic gun that can accept a large?capacity magazine and has one of five other features: a pistol grip without a stock (for semiautomatic pistols, the capacity to accept a magazine outside the pistol grip); a folding, telescoping, or thumbhole stock; a grip for the non?trigger hand; a barrel shroud; or a muzzle brake or compensator.

The Seventh Circuit indicated that the Supreme Court had not indicated the level of scrutiny under which a law implicating the Second Amendment must be analyzed. It could not be mere “rational basis” scrutiny. All laws must have a rational basis and, if that were the low bar set for Second Amendment cases, the Second Amendment would not do anything. Having noted that, however, the Seventh Circuit declined to articulate a level of scrutiny and, instead, announced:

But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” see Heller, 554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether law?abiding citizens retain adequate means of self?defense.

The court then noted that the banned features were not common in 1791. And, while the court noted a potential relationship to a well-regulated militia, the court thought that, since it was up to the states to regulate their militias, it was not a violation if state authority was used to ban this sort of weapon. (The court elided the question of whether it made a difference that this was an ordinance rather than a statute by observing that Plaintiffs contend that the same law would be a constitutional violation if imposed by the state instead of local government.)

With respect to self-defense, the court engages in some petard hoisting. When plaintiffs argue that the ban will leave citizens with insufficient options for self-defense, the court looks at the plaintiff’s argument that the ban will not stop crime. Part of that argument, apparently, was that criminals would simply turn to firearms not regulated by the ban to commit crime and, therefore, the ordinance was not rationally calculated as a crime prevention mechanism. If criminals can commit their crimes with other weapons, the court reasoned, then so too could citizens protect themselves with permitted firearms.

The court concludes:

McDonald holds that the Second Amendment creates individual rights that can be asserted against state and local governments. But neither it nor Heller attempts to define the
entire scope of the Second Amendment—to take all questions about which weapons are appropriate for self?defense out of the people’s hands. Heller and McDonald set limits on
the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self?defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process. See McCulloch v. Maryland, 17 U.S. 316, 407 (1819).

Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a
search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices.

Judge Manion disagreed, regarding the Court’s holding as contrary to the relatively recent Supreme Court holdings in Heller and McDonald. In his view, those decisions largely read the status of weapons at the time of the 1791 ratification and consideration of militias out of Second Amendment analysis. Because the Supreme Court determined that weapon ownership was an individual right, Judge Manion regarded the self-defense analysis as the only part of the majority analysis with some relevance.

To be sure, assault rifles and large capacity magazines are dangerous. But their ability to project large amounts of force accurately is exactly why they are an attractive means of self-defense. While most persons do not require extraordinary means to defend their homes, the fact remains that some do. Ultimately, it is up to the lawful gun owner and not the government to decide these matters. To limit self-defense to only those methods acceptable to the government is to effect an enormous transfer of authority from the citizens of this country to the government—a result directly contrary to our constitution and to our political tradition. The rights contained in the Second Amendment are “fundamental” and “necessary to our system of ordered liberty.” McDonald, 561 U.S. at 778. The government recognizes these rights; it does not confer them.

In his analysis, Judge Manion engages in some parsing of which weapons are covered by the Second Amendment and which are not that strikes me as somewhat dubious. Using hand grenades as an example, he says that the question of whether a particular weapon is covered by the Second Amendment turns on whether the weapon has ever been “commonly used by law-abiding citizens.” Perhaps grenades have not been commonly used by law-abiding citizens because they have been illegal.

But, there is much more to his dissent, and it, too, is worth a read.

Update: At its conference on December 4, 2015, the United States Supreme Court denied transfer (see the dissent starting on page 12 of the link) over a dissent written by Justice Scalia and joined by Justice Thomas.

The majority did not explain the denial of transfer, so it’s difficult to read much into what they might be thinking. But Justice Thomas believed that the Highland Park ban was contrary to Heller and McDonald. Justice Thomas noted that the 7th Circuit panel majority had adopted a test that asked “whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well regulated militia, . . . and whether law-abiding citizens retain adequate means of self-defense.” He does not believe that this test: 1) weapons in existence in 1791; 2) the relationship to a well regulated militia; or 3) self defense is justified after Heller. He believes it was error for the 7th Circuit to limit the Heller decision to the facts in that case (involving handguns and self-defense). He does not appear to think that the relationship to a militia constrains the individual’s right to possess bearable arms in any way and, in any case, he believes that Congress and not the States are in charge of organizing militias.

Thomas’s insistence that Heller protects those weapons “commonly” used for self-defense regardless of available alternatives is perplexing to me as a matter of Constitutional analysis. Why would popularity or lack of popularity matter to Second Amendment analysis. Your right (or lack thereof) to own a gun depends on whether your neighbors also like that type of firearm? Meanwhile, Justice Thomas states that the public’s sense of safety (which may arguably be enhanced by a ban of such firearms) is an irrelevant policy consideration.

Filed Under: Law

Legislative Acquiescence

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The Indiana Law Blog has a post about a recent trial court decision determining that the Notre Dame police weren’t subject to the state public records law because they are part of the university and past legal decisions have held that the private university isn’t a public body subject to the public records law.

I think the right way to go is to find that the police force, because they are exercising public police powers, are a public agency. The trial court, in my opinion, was overly legalistic in its analysis. My take on the decision was that the trial court regarded itself as powerless to carve the police department out of the university generally as being subjected to public records laws. In part of its decision, the trial court discussed legislative acquiescence to prior decisions of public access counselors that found private universities aren’t subject to the access to public records act. (I’m not clear on whether those decisions had to do with requests for the private university police records.) In any event, the doctrine of legislative acquiescence is, frankly, dubious. Basically it means that if a court interprets legislation in a certain way and the legislature gives no sign one way or the other, courts will assume that the legislature agrees with the court decision. The more likely reality is that the legislators have no earthly idea what the courts have been up to. This is even more likely when dealing with the public access counselor and not the courts.

Sesquicentennial of Surrender

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As many of you know, upon the election of Abraham Lincoln in 1860, numerous citizens in the Southern States decided to commit treason in defense of slavery rather than abide by the democratic process. The citizens purported to have the Southern States secede – but large numbers of individuals in the Southern States (notably black people) were not consulted about whether those Southern states should remain part of the United States.

In any event, despite their boastful assertions about the relative martial prowess as between northerners and southerners, the Southern rebels were to learn that war wasn’t a game but is, rather, a contest of raw power, and they had less of it. Lincoln kept the country together, Sherman made the traitors howl, and Grant ground them down. Lots of Americans died in the process. But, in the end, Hamilton won.

On April 9, 1865, Robert E. Lee surrendered to Ulysses S. Grant at Appomattox Court House.

Dressed in an immaculate uniform, Lee waited for Grant to arrive. Grant, whose headache had ended when he received Lee’s note, arrived at the courthouse in a mud-spattered uniform—a government-issue sack coat with trousers tucked into muddy boots, no sidearms, and with only his tarnished shoulder straps showing his rank.

Grant’s terms were generous. Lee’s men would not be prosecuted for treason. The southern soldiers kept their horses and the officers kept their sidearms.

I write harshly about the Southerners on this blog – to some degree because they were horribly wrong. But, a great deal of history features all nature of atrocity and, yet, I’m able to write about it without venom. What gets me going on this subject is the present day revisionism where apologists try to say that what the Southerners were doing wasn’t treason and/or that their actions were not about slavery. The latter is especially galling in light of the fact that the articles of secession written at the time were very explicit about slavery being the driving impulse. The U.S. still suffers from pathologies created by the South’s “peculiar institution.” And slapping a bandage over a festering wound is not going to do any long term good.

Today, people who love the U.S. and who recognize slavery as abominable — from both North and South — should be thankful that the North won and the South lost.

School Funding Debate Continues

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Kris Turner, writing for the Indy Star, has an article about this year’s school funding contained in the budget bill, HB 1001, which will be considered by the Senate appropriations committee.

Two of the most important components of determining how much funding a school corporation gets from the state are the base / foundation amount and the complexity index amount. The base amount is what all schools get on a per pupil basis. The complexity index is tied to poverty in the district out of recognition of the additional challenges they face. An earlier article in the Indy Star describes it this way:

Under the state’s current school funding formula, the complexity index calculates additional dollars based on a district’s proportion of low-income students who qualify for textbook assistance — granting more for districts where that’s the vast majority.

At IPS, where more than four out of every five students come from low-income families, the complexity index alone adds $2,197.17 in state dollars per student.

At Zionsville, where about 5 percent of students receive free or reduced meals, it amounts to just $123.39 more per student.

That’s a difference of more than $2,000 per student, all because of families’ income levels.

Wealthier districts are complaining that the base funding is too low – that they don’t receive enough to keep the doors open without passing referenda increasing taxes in their areas. (West Lafayette Schools had a successful referendum to increase property taxes in my area several years ago.) The budget as currently drafted has an increase in the base funding but decreases the complexity index funding — the upshot being that the wealthier schools get more relative to 2014 funding and the poorer schools get less. (However, the poorer schools still get more per student in absolute terms.) The schools in poorer districts will observe that they are struggling even at current levels – reducing their funding levels is not likely to improve their situations. From the first news story linked, here are the “winners” and “losers.”

The Winners: The top 10 school corporations that will received funding boosts in 2016 and 2017.

Hamilton Southeastern Schools: $24.3 million
Carmel Clay Schools: $15.1 million
Metropolitan School District of Perry Township: $12.5 million
Tippecanoe School Corporation: $10.7 million
Noblesville Schools: $10.5 million
Indiana Connections Academy Virtual Pilot: $9.9 million
Avon Community School Corporation: $9.7 million
Westfield-Washington Schools: $8.9 million
Brownsburg Community School Corp: $8.8 million
Metropolitan School District of Pike Township: $8.7 million

The Losers: The bottom 10 school corporations that will lose state funding in 2016 and 2017.

Indianapolis Public Schools: $32.4 million loss
Gary Community School Corp: $9.2 million loss
School City of East Chicago: $4.6 million loss
Muncie Community Schools: $4.6 million loss
School City of Hammond: $4.2 million loss
Jennings County Schools: $3 million loss
South Bend Community School Corp: $2.9 million loss
Marion Community Schools: $2.5 million loss
Thea Bowman Leadership Academy: $1.9 million loss
Michigan City Area Schools: $1.7 million loss

School funding is a huge chunk of the state’s annual budget – something like 50%. So this really isn’t an easy decision for state lawmakers. Even small changes on a per-student basis have a huge impact on the budget. What makes it more complicated is that, as the complexity funding suggests, educational issues get muddled with broader social welfare issues. The social welfare issues get buried here because they aren’t addressed elsewhere. Our tendency is to view the economy as a morality play where people are poor due to personal failings. Kids are “innocent,” so we don’t tend to have as many mental blocks against dealing with their problems.

Schools like IPS need extra funding not strictly as an educational matter but because the social safety net is inadequate in other parts of these kids’ lives. It’s politically easier to address some of these issues under the umbrella of “education,” but it can make things complicated because we’re only addressing those secondary issues indirectly.

So, because the money isn’t addressing these broader social welfare issues directly, a place like Hamilton Southeastern can complain, “hey – we need to educate our kids too. Look how much less per student we’re getting. It’s not fair.” And such arguments will be at least somewhat convincing because the debate isn’t focused on, say, factors having to do with a chaotic home life resulting from other non-educational social issues.

R.I.P. Jason Perkins

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I got the news that Jason Perkins, a friend of mine, died unexpectedly. We had not been all that close recently, but I spent a good bit of the summer of 1988 tooling around Wayne County in his black Ford EXP. He was warm-hearted, rye, and funny. And a little bit unpredictable. I was an inveterate rule follower and probably needed a little unpredictability about then. Man, that was a good summer.

I think I met him when he was an assistant of some sort for the teacher of a science class I was in. I don’t think he’d been around town for very long at that point. We were both sarcastic and liked to laugh, and I think that formed the basis of our friendship. He was a grade ahead of me, went off to the Army, and we didn’t really re-connect. I think his life got a little chaotic after that. He landed in Lafayette for a period of time and then left shortly before I arrived. Most recently he was doing some kind of IT work up in Chicago but had been spending more time down here, I believe. We met up for an hour or two maybe a year ago and had been keeping in touch at a fairly low level over social media.

A few memories, in no particular order:

  • Having worked at McDonalds for a period of time, he liked to blast the music in his car when we went through a drive through.
  • He introduced me to “the Destroyer” series of books.
  • He had a neighbor who apparently liked to do carpentry in the middle of the night.
  • He dubbed my Volkswagen Dasher “the Wounded Moth” in honor of the sick, dying sound the horn made.
  • I’m not sure I’ve ever been so mad as when he pulled the emergency brake on the Dasher as we were driving down US 40 between Centerville and Richmond. The tires locked up, and he apologized, saying he thought it would just slow the car down.
  • I probably met and talked to more girls hanging out with him for 6 months than I had in 3 years prior. He had a gift for gab.
  • He had apparently written some modem software on the Commodore 64 at age 15 or 16.
  • We both had an affinity for Pink Floyd’s “The Wall.” He liked the Pet Shop Boys — I didn’t.

    While we didn’t ultimately have a lot to do with each other as adults, he was a big part of a brief, but significant, part of my teen years. He was only a year older to me. So, this is yet another reminder to not take my future for granted.

    He leaves behind, along with other family, three sons and a daughter. I wish them well.

    • RFRA Fix

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    The “fix” is in. (I say “fix” because I believe that for many supporters of SB 101, it was less an issue of unintended consequences and more an issue of getting their hands caught in the cookie jar.) SB 50 is apparently being gutted and replaced with language that will amend the newly created IC 34-13-9. Here is my first impression.

    As you may recall, SB 101 created IC 34-13-9 and stated that government could not substantially burden a person’s exercise of religion. Exercise of religion was defined fairly broadly and the burden did not have to be central to the person’s religion. If a person demonstrated a substantial burden, the governmental action could continue with respect to that person only if the government demonstrated a compelling interest and that the governmental action was the “least restrictive means” of advancing that interest. My sense was that the political point of the exercise (giving the timing and the identity of the strongest advocates) was to give social conservatives a win against the GLBT community. But, legally, the impact on the rights of gay citizens would not be hugely significant because there aren’t a lot of government protections based on sexual orientation in the first place. Where there might have been a practical impact was in the case of human relations ordinances in various municipalities that did offer protections based on sexual orientation. State law would have trumped those.

    The amendment adds two new sections: IC 34-13-9-0.7 and IC 34-13-9-7.5:

    Sec. 0.7. This chapter does not:
    (1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;
    (2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; or
    (3) negate any rights available under the Constitution of the State of Indiana.

    . . .

    Sec. 7.5. As used in this chapter, “provider” means one (1) or more individuals, partnerships, associations, organizations, limited liability companies, corporations, and other organized groups of persons. The term does not include:
    (1) A church or other nonprofit religious organization or society, including an affiliated school, that is exempt from federal income taxation under 26 U.S.C. 501(a), as amended (excluding any activity that generates unrelated business taxable income (as defined in 26 U.S.C. 512, as amended)).
    (2) A rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society.

    So, let’s break this down. It does not authorize (or establish a legal defense) where a “provider” refuses services, facilities, use of public accommodations, goods, employment, or housing. This is pretty broad. But I’d just flag the legal maxim expressio unius est exlusio alterius (the expression of one thing is the exclusion of the other.) I can’t think of a context for objectionable discrimination that falls outside of services, facilities, public accommodations, goods, employment, and/or housing, but they could exist and if they do, this language probably somewhat strengthens the ability to discriminate in those non-articulated contexts. Specifically, there is no authorization or legal defense for these refusals where they are based on “race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.” Again, pretty broad. But if there are non-articulated groups, they might be fair game because they’re not in this laundry list.

    Now, what’s a “provider”? Because that language above suggests that non-providers might be able to discriminate on those bases (to the extent otherwise legal). “Providers” are pretty much anyone except for churches and other organizations “exempt from federal income taxation under 26 U.S.C. 501(a)” — but excluding activity generating unrelated business income. (I’m not quite sure how that will play out functionally, they have excluded particular persons based on status as a particular kind of organization but, in a sense re-included the organizations based on activity (as opposed to organizational status). The tax code might provide guidance for this kind of partial carving out of an organization.) Also excluded from the definition of “provider” are “a rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society.”

    The upshot is that they have defined as non-providers religious people and organizations to the extent they are fairly tightly engaged in religious pursuits. The rest of the world is pretty much prohibited from using RFRA as a justification for pernicious discrimination. As a legal matter, I think this pretty well removes the impact from the human rights ordinances I know about. As a political matter, this has to sting the most ardent advocates of the local RFRA.

    Fighting Unreality with Reality

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    As I’ve mentioned before, I see this RFRA debate as mostly divorced from reality. There is a proxy war aspect to this whole thing. At some level, the dynamics at play reminded me of the Simpsons episode where, after a random bear sighting, Springfield panics and invests heavily in defenses against bears.

    Homer: Not a bear in sight. The Bear Patrol must be working like a charm.
    Lisa: That’s specious reasoning, Dad.

    Homer: Thank you, dear.

    Lisa: By your logic I could claim that this rock keeps tigers away.

    Homer: Oh, how does it work?

    Lisa: It doesn’t work.

    Homer: Uh-huh.

    Lisa: It’s just a stupid rock.

    Homer: Uh-huh.

    Lisa: But I don’t see any tigers around, do you?

    [Homer thinks of this, then pulls out some money]

    Homer: Lisa, I want to buy your rock.

    RFRA was sold as the rock that keeps the non-existent gay danger away. Now that gay people and supporters of gay people are demanding that Indiana get rid of the rock, lawmakers are trying to say, “what’s the big deal, it’s just a rock?” But, no dice. Supporters and opponents don’t believe it’s just a rock anymore. Opponents see it as an affliction, supporters see it as protection. It doesn’t matter if the tiger-protection salesmen ever believed in the power of the rock to start with. And it doesn’t matter how many other states have rocks of their own.

    Sow the wind. Reap the whirlwind.

    RFRA and Gay Rights

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    Sorry to go all RFRA, all the time here. But I wanted to address a little bit further the issue of how the RFRA discussion came to be focused on gay rights. My sense of the actual text of the law is that it does not particularly target gay rights or, for the most part, let people infringe upon such rights based on religion. I can see it coming up in the context of a local human rights ordinance that protects against discrimination based on sexual orientation where the person doing the discriminating claims it’s compelled by their religion.

    That said, the text of the law does not address gay rights directly and certainly similar legislation has been approved in places and by people one normally associate as being favorably inclined toward gay rights. So, why has the debate played out in Indiana the way it has?

    My sense is that the social conservatives felt stung by their defeat in the marriage equality battles. They failed to get a marriage amendment to the Indiana constitution on the ballot and the federal courts have declared such measures to be contrary to the U.S. Constitution. That was when the Indiana RFRA push began. I think it was something that was substantively palatable to most of our lawmakers because it had been passed in many places and has been largely unobjectionable to most people. At the same time, it could be sold rhetorically by advocates of social conservatism as a victory against the LGBT menace threatening Christianity. Take, for example, Eric Miller of Advance America:

    Indiana now becomes the 20th state with a Religious Freedom Restoration Act.

    Eric Miller, the Founder and Executive Director of Advance America stated: “It is vitally important to protect religious freedom in Indiana. It’s the right thing to do. It was therefore important to pass Senate Bill 101 in 2015 in order to help protect churches, Christian businesses and individuals from those who want to punish them because of their Biblical beliefs!”

    Churches, Christian businesses and individuals deserve protection from those who support homosexual marriages and those who support government recognition and approval of gender identity (men who dress as women). SB 101 will help provide the protection!

    Here are just three examples where SB 101 will help:

    Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!

    A Christian business should not be punished for refusing to allow a man to use the women’s restroom!

    A church should not be punished because they refuse to let the church be used for a homosexual wedding!

    (Holy exclamation points, Batman!). Miller isn’t just some crank off the Internet. He was given a prominent spot at the private signing ceremony by Gov. Pence. He is one of the people this legislation was designed to appease.

    So, legislators are in a bit of a bind. It’s all well and good for them to say that this legislation doesn’t hurt gay rights. There is a pretty good chance they’re mostly right. But that message isn’t going to carry the day unless and until they come out and directly admit to social conservatives, “we haven’t done anything to address your concerns about gay people.” Unless that message comes across clearly, the gay community and those who support them can be excused for taking people like Miller at their word that this legislation was intended to assist guys like him retain the ability to treat gay people like second class citizens. The ability of lawmakers to communicate that message is further complicated by the fact that they had an opportunity to amend the bill in a variety of ways that would have made explicit that it was not intended to facilitate discrimination. See, for example, Sen. Lanane’s proposed amendment:

    (b) This chapter does not apply to:
    (1) IC 22-9-1 (Indiana civil rights law); or
    (2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.

    That proposal was defeated in the Senate 10-40.

    Whatever the legal effects, however, the rhetoric surrounding this legislation was never closely tethered to reality. Now that it’s law, getting the horse back in the barn by asking people to focus on what the law does in reality will be awfully tough.