This post originally appeared on the Legislation Law Prof Blog
Much has been written about the recent RFRA uproar in Indiana, but what lessons might we take from it? Here’s one: Governor Mike Pence is not a very good student of history. Here’s another: Big Business and Big Sport may have put the kibosh — definitively — on the spread of discriminatory state RFRA laws.
First the history. In February of 2014, Arizona’s state legislature passed SB 1062, a bill intended to amend and extend existing state law, which prevented any law from substantially burdening a person’s exercise of religion. SB 1062 would have expanded the definition of “person” to include corporations and associations, and would have allowed religious freedom to be used as a claim or defense in lawsuits, whether or not the government was a party.
Opposition to the bill was immediate and overwhelming. Social media lit up, and #BoycottAZ began trending. Civil rights organizations spoke out. But something new also happened. Big businesses spoke out as well. Opponents included Apple, American and Delta airlines, Marriott Hotels, Intel, PetSmart, and Yelp. And Big Business included Big Sport. Major League Baseball issued a statement. The Arizona Cardinals and the National Football League spoke out, suggesting that if the bill became law, the 2015 Super Bowl might be moved from Arizona to another location. Governor Jan Brewer bowed to the pressure, and vetoed the bill.
Thirteen months later, history more or less repeated itself – except with a different order of events.
On March 24, the Indiana state legislature passed SB 101. As in Arizona, the law extended religious freedom protection to businesses, and permitted it to be used as a claim or a defense in private lawsuits. Pence could have taken a week to sign or veto the bill. But instead of waiting to see if opposition developed, Pence signed the bill on March 26.
The same day, opposition mobilized. #BoycottIndiana spiked. From just 56 tweets on March 24 and 2,783 on the 25th, it jumped to nearly 60,000 tweets per day for the next three days. Civil rights organizations spoke out, and the largest newspaper in Indiana demanded on its front page that Pence “FIX THIS NOW.”
And, as in Arizona, Big Business and Big Sport spoke out. Salesforce said it would not send employees to Indiana. Angie’s List canceled a multimillion dollar expansion. Apple CEO Tim Cook wrote an op-ed describing the spread of state RFRA laws as “very dangerous.” And the head of the NCAA, which was slated to host the Final Four in Indianapolis, declared that the situation “absolutely, positively needs to get fixed.” After a weekend spent dragging his feet, Pence hopped to it, and last week ordered the legislature to pass SB 50, a bill barring discrimination, which he signed on Thursday.
For a governor whose official bio claims credit for helping Indiana “earn a global reputation as a great place to do business,” and touts his own small business experience, this episode was an enormous misstep. Perhaps Spence was taken in by the meme of the religious bakers and florists, and led to believe that there was actually a large and well-organized community of religious small business owners who would have his back. Or perhaps he simply failed to take any lessons from what had happened in Arizona. In any event, he crossed the desires of Big Business, and paid the price.
A couple states to the southwest, Arkansas governor Asa Hutchinson, faced with a similar situation, understood what he needed to do. With the Wal-Mart CEO telling him the RFRA bill as passed by the legislature “threatens to undermine the spirit of inclusion,” Hutchison sent the bill back and ordered up a version that parallels the federal law and prohibits discrimination.
According to NCSL, 18 bills related to religious freedom are still pending in ten states this year. Some, as in Oklahoma, seek to amend existing RFRA laws; others, as in North Carolina, seek to add RFRA or something similar to the state statutes. In several states, proposed bills have already failed.
In the wake of the experiences in Arizona, Indiana, and Arkansas, it is hard to imagine any of these states enacting a RFRA law that allows discrimination. At least in this case, the dominance of Big Business over the legislative process might be something for progressives to celebrate.