In the week after the developments, here are three takeaways that LGBT advocates have observed resulting the frenzy over the Indiana law:
1) Debate has shifted from government discrimination to private sector discrimination
In years past, the debate over LGBT rights has focused on discrimination at the hands of the government, such as “Don’t Ask, Don’t Tell,” the Defense of Marriage Act and most recently state laws prohibiting same-sex couples from marrying. But now that LGBT advocates have largely won those victories, the conversation now shifts to the remaining area of discrimination: the private sector.
Amid continued wins for marriage equality, anti-LGBT leaders ranging from former U.S. Sen. Rick Santorum to Republican presidential candidate Ted Cruz are speaking out more in terms of a carve-out for religious communities that would enable them to ignore this progression throughout the country. Meanwhile, LGBT advocates have countered by calling for non-discrimination protections to prohibit refusal of services and employment in the public sector.
M.V. Lee Badgett, an economist at the University of Massachusetts at Amherst who specializes in LGBT issues, said government and private sector discrimination have always both been issues, but recent events have the latter more prominent as a result of wins for marriage.
“I think this shows how they intersect and it shows how sometimes removing government discrimination might provoke a larger debate on the private side because more LGBT people will become visible,” Badgett said. “Marriage is a public act, and something that when it takes place gets connected to lots of different institutions, whether that’s businesses or communities or families. In each of those cases, it just makes the LGBT people who’ve been there all along really visible.”
But it’s not just the victories for the LGBT community that have changed the nature of the debate, it’s the change in political landscape.
Lanae Erickson Hatalsky, director of the social policy and politics program for Third Way, said the discussion around the extension of religious exemptions in non-discrimination measures is the result of Republican wins in 2014.
“This conversation is really to me a function of the fact that Republicans are in charge of almost every lever of government at the state legislative level and the federal level,” Hatalsky said. “They control almost everything. And so, there’s little progress that can be made in the short term on our other priorities like advancing non-discrimination laws, so what we have to deal with is these religious liberty super-RFRA type laws. That’s going to remain the conversation as long Republicans remain in control.”
2) More than ever, the business community is aligned with the LGBT community
The strongest voices against the Indiana religious freedom bill were not from LGBT advocates, but the business community. The Indiana Chamber of Commerce and Angie’s List, an Indianapolis-based company that reviews local businesses, were opponents of the law.
Also speaking out was Marc Benioff, the CEO of Salesforce, announced his company would no longer do business in the state out of concern that customers and employees may face discrimination. The National College Athletic Association, which is also based in Indianapolis, also expressed reservations about the law just before it was about the Final Four.
Dan Pinello, a political scientist at the City University of New York, said this support represents a change for the business community when more harsh anti-LGBT measures were before the states.
“In contrast, just three years ago, when North Carolina became the last of 20 states in the nation to pass a Super-DOMA (a constitutionally-based ban of all relationship recognition — marriage, civil unions, domestic partnerships, etc. — for same-sex couples), not one Fortune 500 company located in that state (including Bank of America, Duke Energy, and Lowe’s) publicly opposed it,” Pinello said. “And the consequences to lesbian and gay couples and their families of North Carolina’s comprehensive relationship prohibition were far, far more harsh than the incidental insults of bakers and photographers at issue in Arkansas and Indiana last week.”
The newfound partnership between the LGBT community and business comes to the consternation of social conservatives, who are more traditionally aligned with businesses under the Reagan coalition.
Tony Perkins, president of the anti-LGBT Family Research Council, accused Pence and Indiana’s elected leaders of trading “religious freedom for the silver of big business” after the governor had signed the “fix” into law.
“Unfortunately, Indiana leaders yielded to the cultural bullies and the enticements of Big Business and the result is they have sacrificed the essential rights of their citizens,” Perkins said.
3) Despite the Indiana ‘fix,’ the LGBT community still lacks significant political power
Although Pence signed into law a “fix” to the law to make clear it’s not intended for LGBT discrimination, the change isn’t what LGBT advocates sought.
LGBT advocates called for an explicit non-discrimination law on the basis of sexual orientation and gender identity, but Pence resisted the idea, saying that’s not on his agenda, and the legislature included no such language in its change the law.
Moreover, the “fix” exempts not only churches and ministers, but also religious non-profits — an exemption that when included in the federal Employment Non-Discrimination Act was deemed too broad by many LGBT advocates for them to support.
Badgett said the failure of the LGBT community to get everything it wanted in Indiana demonstrates the political power of the movement is still limited.
“The fix was just a little patch and didn’t remove the potential for all discrimination suggests that whatever political power was there was not enough to end up in the situation where LGBT people would probably prefer, which would be to not have the bill in the first place, and in the second place, to have a very clear, broad non-discrimination law,” Badgett said. “So it didn’t happen that, so I don’t think you read this very comfortably as a clear victory for the LGBT rights movement.”
Even so, during upcoming oral arguments before the U.S. Supreme Court, opponents of marriage equality may try to draw on Indiana as evidence that the LGBT community politically powerful and therefore not in need of judicial interview.
Douglas NeJaime, a law professor at the University of California at Irvine, said he suspects those arguments would carry little weight on the court.
“I don’t anticipate this having a major impact on the court’s thinking about the marriage cases,” NeJaime said. “And given the similar bills arising in other states and likely to pass, I don’t think we should so quickly discount the impact of opposition to LGBT rights.”