Anti-gay Indiana starts backtracking on hated law after tech pressure

The governor of Indiana is quietly backtracking on a law that threatens to legalize discrimination against gay, lesbian, bisexual, and transgender people – after growing pressure from tech companies.

Business portal Angie's List, which is based in the state, has halted its expansion after the law was passed last week. Its CEO Bill Oesterle said his company was "hugely disappointed" in the new rules.

Angie's List joins a number of other tech companies and high-profile CEOs in opposing the law.

They include: Salesforce, which has said it will limit its activities in the state; Yelp, whose CEO said it would be "unconscionable to imagine that Yelp would create, maintain, or expand a significant business presence in any state that encouraged discrimination"; and Apple, whose CEO Tim Cook wrote a strongly worded op-ed in the Washington Post on Monday opposing Indiana's law and upcoming similar laws in North Carolina and Nevada.

Pivotal, Oracle, EMC, Cloudera, and more, are boycotting the IndyBigData event due to be held in Indiana in May over the controversial legislation. The law has also been opposed by a range of other businesses, politicians and celebrities.

Governor Mike Pence took an aggressively defensive stance over the weekend in an interview with The Indianapolis Star and later with ABC News.

"I just can't account for the hostility that's been directed at our state," he told The Star. "I've been taken aback by the mischaracterizations from outside the state of Indiana about what is in this bill."

He stood by the legislation, but said he would work with Indiana lawmakers to "see if there's a way to clarify the intent of the law" – something planned for this week.

What is really in the new rules?

In the meantime, media outlets across the US have been pushing out articles on the contents of the law, most written by legal scholars and the majority concluding that the actual wording of the legislation does not add all that much to the current federal law over religious freedom, and noting that there is no mention of gay, lesbian, bisexual, or transgender people in the text itself.

Academics have a tendency to miss political realities and real-world pressures, however, and in this case have done so dramatically. The Indiana law is causing such a huge outcry because it has some additional elements and/or changes to the Religious Freedom Restoration Act (RFRA) that was passed by President Clinton, and has seen many other states pass their own version. Those changes are:

• It allow the defense of "religious freedom" to be used in a private lawsuit. So if someone refuses to take pictures of a gay wedding (as happened in Elane Photography v. Willock) they can now use the Religious Freedom Restoration Act (RFRA) as a defense if they are sued.

In some states, the RFRA can be used as a defense even in a private lawsuit; in some, it cannot. But Indiana's law writes this into the books.

• It expands religious freedoms from the individual to companies. So a business would be allowed to make a decision not to provide its services to people or other companies if they felt their religious freedoms were being impinged.

Again, in some states this person-corporate equivalence has already been effectively introduced, but again the Indiana law writes it into the books.

• It increases the strength of the religious freedom defense by including the language that someone was "likely to be substantially burdened" - the 'likely' is new - whereas the RFRA says simply "has been substantially burdened".

Legal scholars question whether this additional language would have a real, pragmatic impact in a legal case. But the key related issue is that gay and lesbian citizens are not a protected legal class under Indiana law.

Asked if, when "clarifying" the law, Indiana lawmakers will include gay men and lesbians as protected classes, Governor Pence demurred, saying simply: "That's not on my agenda."

Big picture

The big picture is that the religious freedom laws being created and passed are tweaks to existing legislation that have been developed in response to rulings by the US Supreme Court that same-sex marriage is legal.

State legislatures have seen laws that they passed making same-sex marriage illegal overturned, and so have been developing legal workarounds that would enable individuals and businesses to potentially withhold their products and services.

The changes to the federal RFRA law all point in this direction and any suggestions that would push it in the other direction are dismissed or ignored. So even though lawmakers are claiming otherwise, the reality is that the laws have been developed specifically with the same-sex marriage rulings in mind.

The reason for the huge counter-push is in order to make it clear that this is not an issue that can be legislated away or pushed into years of complex legal fights.

The irony, of course, is that that same approach – the withdrawing of products and services – is being applied by large corporates, including many high-profile tech companies, as a way of registering opposition to the law and its sentiment.

Boiled down

The argument in its simplest form is that freedom – religious or otherwise – is about providing people with rights, not withholding them.

It is for this simple reason that the Indiana law and others under consideration across the United States are going to face campaigns against them.

Even if Tim Cook wasn't an advocate for gay rights, having become the only Fortune 500 CEO to ever come out as gay, as a CEO he makes the business case for non-discrimination. "America’s business community recognized a long time ago that discrimination, in all its forms, is bad for business," he wrote in his op-ed. "At Apple, we are in business to empower and enrich our customers’ lives. We strive to do business in a way that is just and fair."

Anything that gets in the way of the sale is going to have a hard time gaining support in the home of capitalism. The same is true for bigots and non-bigots. ®