Anti-gay bias legal in Indiana before new law: Column

Apple's chief executive has called Indiana's new law "dangerous." Several other companies, the state of Connecticut, and George Takei are boycotting Indiana over the law. And Governor Mike Pence has been raked over the coals by the media, including George Stephanopolous who angrily and repeatedly demanded Pence answer whether his state allows discrimination against gay people.

The recent uproar over Indiana's newly enacted Religious Freedom Restoration Act is a welcome development, but unfortunately, this controversy has fed a basic misunderstanding about the underlying state of the law that has serious implications for future action.

Most of the coverage of the newly enacted law has referred to the legislation as a "license to discriminate" against gay people. There's no doubt that laws like the one passed in Indiana send a clear message that religiously-based discrimination is considered acceptable practice in the state. However, the reality of the situation is that even before this law was passed, most gay and lesbian Hoosiers had almost no protection anyway.

Like most states, Indiana has no state law outlawing discrimination based on sexual orientation in employment, public accommodations, schools or housing. There are a very small number of local laws that protect against some forms of anti-gay discrimination and there is a statewide ban on public employment discrimination, but, other than that, there is no anti-discrimination protection in Indiana for gay people.

To put it another way, in most parts of Indiana, employers, public accommodations, schools and landlords were already allowed to discriminate against gay people, for any reason whatsoever, regardless of the religious freedom law.

So does the new law do nothing at all with respect to anti-gay bigotry? Not precisely. It allows people living in those few localities with anti-discrimination measures in place to sidestep them by claiming that they conflict with their religious beliefs. And it ensures that in the future, if sexual orientation protections were written into state law, those protections could be avoided. But that's a lot less than what most people think the law is actually doing.

The bottom line is that the businesses that are pulling their money out of Indiana were already doing business in a state that allowed anti-gay discrimination.

And what's more, Indiana is hardly alone in allowing this discrimination. According to the Human Rights Campaign, only 21 states prohibit sexual orientation discrimination in private employment, 15 prohibit discrimination in schools, 21 prohibit discrimination in public accommodations and 21 prohibit discrimination in housing. The much-discussed case of the baker who doesn't want to bake a cake for a gay couple's wedding? In 29 states, including Indiana, the baker is allowed to refuse service because the couple is gay, without any law about religious freedom.

Federal law is no different. Unlike civil rights laws with respect to race, religion and sex, there are no federal civil rights laws that protect against anti-gay discrimination. President Obama has signed a couple of limited executive orders banning discrimination where he can, but those protections are few and far between and are no substitute for legislation.

Because we as a country have come so far in acceptance of LGBT individuals and seem to be on the precipice of a Supreme Court ruling requiring marriage equality, we like to think there also must be protections against discrimination in the law. However, nothing could be further from the truth. This is truly a gaping hole in American law.

When thinking about civil rights strategy, we must do as the folk song suggests, and "keep our eyes on the prize." Those who are asking Indiana to reconsider this new law are certainly on the right track, as there is important symbolic significance in doing so. But, in actual effect, repealing the law would simply return Indiana to the situation it was in before — allowing most employers, businesses, schools and landlords to discriminate against gay people for any reason. That's probably not what most folks have in mind when they call for repeal.

People who are incensed about Indiana need to be focused on the bigger picture. We need to demand that Indiana, along with the federal government and every other state, change their laws to specifically prohibit anti-gay discrimination in all walks of life.

Until this happens, religious freedom laws, like the one enacted last week in Indiana, are mostly a distraction from the sad reality that American law has largely already failed to protect against anti-gay discrimination, with or without religious freedom laws.

David S. Cohen, is a law professor at Drexel University. He is co-author of the forthcoming bookLiving in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism. Leonore Carpenter is an associate law professor at Temple University'.

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