Liberty and SOGI Laws: An Impossible and Unsustainable “Compromise”

Indiana’s proposed sexual orientation and gender identity laws would make bad policy

Some advocates of these two bills argue that they protect “fairness for all,” others say that they are a “compromise” following the path that Utah took with its SOGI law, while still others say they lock in some freedom before the opportunity closes forever. We think all three are demonstrably mistaken.

 

Indiana’s proposed sexual orientation and gender identity (SOGI) laws, SB 100 and SB 344, would make bad policy. The preamble of each states that it seeks a “balancing of differing religious values and matters of conscience so that individuals of good faith can live and work together without undue litigation or burden.” But in reality the bills favor one side of a cultural debate—the culturally and politically powerful LGBT lobby—at the expense of citizens of goodwill who believe that we are created male and female and that marriage unites a man and a woman. While these bills have some superficially appealing aspects, they would only increase cultural tensions, further empower an already powerful special-interest lobby, and impose unjustly on Hoosiers of many different faiths and all walks of life. All citizens should oppose unjust discrimination, but SOGI laws are not the way to do that.

Following the Obergefell decision redefining marriage throughout the nation, the people who need legal protections are those who believe that male and female are objective biological categories and that marriage unites a man and a woman. Yet these bills would establish a legal precedent that acting upon these beliefs is bigotry. They create legal privileges for new protected classes based not on objective, easily verifiable traits, but on subjective identities: SB 100 adds sexual orientation and gender identity, and SB 344 adds sexual orientation. Where these types of laws have been passed, the government has penalized bakers, florists, photographers, adoption agencies, and schools because of their beliefs, faith-based or otherwise, about human sexuality.

Thus, SB 100 and SB 344 threaten the civil rights of Hoosiers who believe basic truths about the human condition articulated by ancient Greek and Roman philosophers, members of the Abrahamic faiths, and secular people who believe in freedom of inquiry. Orthodox Jews, Catholics, Eastern Orthodox and Evangelical Christians, Latter-Day Saints, Muslims, and people of other faiths or none at all will be at risk.

Some advocates of these two bills argue that they protect “fairness for all,” others say that they are a “compromise” following the path that Utah took with its SOGI law, while still others say they lock in some freedom before the opportunity closes forever. We think all three are demonstrably mistaken.

1. They Do Not Protect Fairness for All. “Fairness for all” suggests that all the various aspects of SB 100 and SB 344 are desirable. They are not. SB 100 and SB 344 are first and foremost SOGI bills, meaning they create new protected classes based on sexual orientation and, in the case of SB 100, gender identity. They are not about protecting liberty. The fact that they attempt to exempt certain limited categories of people and institutions—clergy, houses of worship, religious non-profits, and small businesses with no more than three employees (SB 100) or five employees (SB 344)—from their new, harmful regulations is not fairness. It creates unjust policy and then tries to forestall some of its most egregiously bad consequences.

For a detailed discussion of SOGI laws in general, see Ryan Anderson’s report for the Heritage Foundation: “Sexual Orientation and Gender Identity (SOGI) Laws Threaten Freedom.” In this essay, we focus on the specific features of the Indiana “compromise” bills.

2. They Do Not Establish a Compromise. The bills are not a compromise, at least not a good one. Compromise suggests that each side gets something that it wants, though less than everything, and that both sides stand roughly equal at the end of negotiations. SB 100 and SB 344 give one side special new legal privileges applicable almost everywhere, and “in exchange” the other side gets limited exemptions from this bad public policy. (And as we note below, these limited exemptions are not guaranteed to last.)

Both policies would label people acting according to their faith as “bigots” in myriad circumstances. For example, under SB 100 thousands of vulnerable small businesses could be sued (thus, at a minimum, causing them to incur large legal fees) if they fail to require their employees to address transgender co-workers with the pronoun of their choice, which, of course, raises freedom of speech as well as religious freedom concerns. Under both SB 100 and SB 344 they may also be sued for having policies that reflect the belief that marriage is the union of one man and one woman. SB 100 and 344’s exemptions for some religious institutions and microbusinesses do not limit the social dynamic unleashed when the state brands mainstream religious beliefs about what it means to be a man and a woman as bigoted and discriminatory. The Human Rights Campaign asserts that religious exemptions to SOGI laws constitute “a license to discriminate.” Far better not to go down this dead-end road for religious liberty to begin with.

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