Faced with boycott threats from giant businesses, including Nike, Apple, Angie's List and Salesforce.com, Indiana’s Governor Mike Pence has vowed to alter the language of a controversial, religious freedom bill he signed into law just last week, to ensure businesses can’t use it to discriminate against LGBT customers. But that doesn’t mean it’s back to business as usual.

Arkansas’ Governor Asa Hutchinson is poised to sign a nearly identical measure, approved by the legislature in that state late on Tuesday. In reference to the backlash Indiana faces, he was defiant when questioned by the Arkansas Times over the weekend: "What company is going to boycott 20 states?” Although there are signs he may be reconsidering that brash statement, especially in light of Walmart's forceful denunciation of the bill, it should still give business owners across the country pause.

On their surface, the latest batch of Religious Freedom Reformation Act (RFRA) laws, which have passed in 20 U.S. states, not including Arkansas, appear to protect the free exercise of religion. But critics argue that, in reality, they can be used by anyone to discriminate in a business setting. What’s more, critics say, these laws are preemptive measures--offering to steel religious business owners from having to serve same sex couples, should the Supreme Court in June return a verdict giving same sex couples a federal right to marry.

It’s hardly your job to interpret laws, much less pick and choose which ones you want to observe. It is your job to serve customers--big ones, tall ones, short ones, small ones--even if you don’t find the tall ones all that appealing.

While you, or anyone else, are entitled to your own religious beliefs, businesses are considered public accommodations--that is, any public or private entity that serves the public, including restaurants, gyms, photographic studios, and universities. And that's been part of our evolving national standard at least since the 19th century. In an attempt to redress the wrongs of slavery following its abolition in 1865, Congress passed the 1875 Civil Rights Act--which, among other things, forbade most forms of discrimination in public accommodations.

What’s at stake today is the overt loss or erosion of this overarching national standard that rejects discrimination of any kind. Even if the religious freedom laws aren’t intended to allow discrimination against LGBT people, the point is, with the state RFRA laws it’s possible. That interplay between freedom of businesses to operate as they please, and their legal duties as public accommodations, is at the heart of today’s controversy.

"The RFRA bills are part of a larger campaign to diminish what is public norm-making through the democratic process, that we don't allow certain forms of discrimination in public spaces," says Katherine Franke, a professor of law and director of the Center for Gender and Sexuality at Columbia University, in New York.

A History of Discrimination

To be sure, this premise has taken significant hits since 1875. While use of these RFRA laws has been part and parcel of the judicial landscape since the 1990s, the controversy over them is part of a long history of discrimination in the U.S. And the attempts to end that discrimination stretch all the way back to the Civil War.

“The current legislation is just the latest battle in what has been a long series of events for the past 150 years,” says Leslie Lenkowsky, professor of practice in public affairs and philanthropy, at Indiana University, in Bloomington.

In 1883, the Supreme Court overturned the Civil Rights Act, claiming it did not have statutory authority in the individual states. That ruling ushered in the “separate but equal” era in the U.S., with its disgraceful Jim Crow laws that essentially legalized segregation for nearly 100 years, until the 1964 Civil Rights Act was passed.

What does this have to do with business, you may wonder? For one thing, Jim Crow laws were named after the “Jim Crow Car,” special rail cars owned and operated by the entrepreneurs who built the railways, in which all African Americans were forced to travel, in overcrowded and unsanitary conditions.

Fast forward to more recent times. The current batch of RFRA laws--and proposed bills--was originally meant to protect minorities, albeit of the religious kind. In fact, today’s legislation had its genesis in 1990, following a Supreme Court case called Employment Division v. Smith. That case dealt with two members of the Native American Church in Oregon, who were fired from a drug rehabilitation clinic and denied unemployment benefits for eating peyote as part of a religious ceremony.

But the High Court ruled that Oregon was within its rights to fire the employees and withhold benefits. Writing for the majority, Justice Antonin Scalia, the Supreme Court’s most famous religious conservative today, essentially denied the plaintiffs free exercise of their religion.

In response, a coalition of conservatives and liberals, including former Massachusetts Senator Edward Kennedy and then President Bill Clinton, came together to pass the federal RFRA bill in 1993. In essence, that bill gives individuals a way to opt out of federal laws that restrict religious practices, except in cases where the federal government has a compelling interest.

Thanks to that measure, the Supreme Court ruled in favor of Hobby Lobby last June in the case of Burwell vs. Hobby Lobby Stores--exempting the crafts retailer from offering contraception and fertility treatments to its employees as part of the Affordable Care Act. In its defense, Hobby Lobby cited the federal Religious Freedom Reformation Act--noting that since the ACA required the company to flout its religious principals, it should be exempt.

A New Use Case

The current batch of RFRA laws, such as the one about to be signed in Arkansas, are thought to circumvent successes that same sex marriage has had in the past few years. Same sex marriage is now legal in 36 states, and the Supreme Court will issue a final ruling on whether such couples have a federal right to marry in June.

So states are moving to act preemptively. Proponents of such bills say they are needed to ward off threats of punitive actions, such as those that beset small business owners like Elaine Huguenin of Elane Photography in Albuquerque, New Mexico. Huguenin was fined $7,000 for violating the state’s public accommodation laws, after she refused to provide photographic services to two lesbian women for their wedding in 2006.

Some legal experts warn the RFRA bills have tended to expand the narrow instances in which individuals and businesses can use their religion to opt out of activities the state might compel them to do, such as to serve all customers. And they have also tended to allow religious excuses to free people from certain legal claims, such as might arise in jurisdictions with broad protections against discrimination, including minorities such as LGBT people.

And those changes mean discrimination against some minorities is a real danger. If you don’t think so, just listen to Bart Hester, an Arkansas State Senator, Republican, and lead sponsor of the bill. When asked if he might include assurances that the bill wouldn’t be used to discriminate against LGBT people, such as Indiana is now considering, he said no way.

"If you start shaving out exemptions in laws, next thing you know, you’ll gut the law because everyone will want an exemption,” Hester told the New York Times on Tuesday.

As Apple CEO Tim Cook said in a recent op-ed, discrimination has no place in the modern business world, or anywhere else. And no one, especially 21st century businesses today, is prepared to wait another 100 years for comprehensive civil rights that protect everyone. 

"The days of segregation and discrimination marked by 'Whites Only' signs on shop doors, water fountains and restrooms must remain deep in our past," Cook wrote recently in the Washington Post. "We must never return to any semblance of that time[,]America must be a land of opportunity for everyone." 

Published on: Apr 1, 2015