When Indiana governor Mike Pence held a press conference in order to clarify the

Indiana Religious Freedom Restoration Act

, criticism became viral. There has been ever more discussion and criticism of the law since. These RFRA fights are the definition of a
church-state/religious freedom issue, and I felt compelled to write about it. However, because of all the commentary (for example, an admitted subpar piece
from Russell Moore and a more balanced piece from Howard Friedman), I was feeling all RFRA’ed out. The
principles behind these issues don’t change. You end up saying the same things you always say, just changing the facts to fit the situation. I remember
writing an article that addressed much of the problem with the type of ideology this state’s RFRA espouses when New Mexico dealt with this issue from a
judicial perspective in 2013.

Governor Pence held his press conference and obfuscated his clarification by seeking to defend the law while admitting that it needed to be clarified.
Through sleight of hand, semantics, and a lack of knowledge, Governor Pence managed to give the impression that Indiana is now seeking only to clear up a
misconception, as opposed to a law with some serious and dangerous flaws.

Governor Pence repeatedly stated that this law was structurally similar to the federal RFRA and the other state RFRAs. When asked certain questions, he
would meld the two together, saying something to the effect of “The principle of this law when President Clinton signed it. . .” Except that President
Clinton didn’t sign the Indiana RFRA—Governor Pence did.

The Indiana law also allows for the defense to be raised even when the government is not a party to the case. This would allow business owners to raise an
RFRA defense against potential clients whom they want to discriminate against because of their religious beliefs. These are things you cannot do under
normal RFRA statutes, and it is disingenuous for Governor Pence to claim that there are no substantive differences between the Indiana statute and the
other RFRA statutes that exist.

Governor Pence seemed to have fun saying that the Indiana RFRA does not grant a “license to discriminate” against anyone. To be fair, much of the noise
around the passage of the legislation described the Indiana RFRA this way. But the issue is an issue of semantics. Technically, Governor Pence is
correct—RFRA does not grant a license to discriminate. However, the law provided defense for the discrimination at issue—specifically discrimination based
on sexual orientation.

Scholars are right to point
out that discrimination of this type has never been allowed by a RFRA defense. The fact that Indiana has no anti-discrimination statute that covers sexual
orientation coupled with the fact that we now live in a post-Hobby Lobby and potentially more conservative judicial landscape does not bode well
for that streak continuing. This is why the act has garnered so much criticism. It is within the realm of probability that this new RFRA could become a
defense for discrimination; and Governor Pence never acknowledged that probability.

Finally, it has come to my attention that Governor Pence may have said something that wasn’t quite accurate. Governor Pence was asked whether he thought
that there would be all this criticism of RFRA, and answered an emphatic no. It seems that was not accurate. At the end of February, 30 law professors sent
a letter to Representative Ed Delaney of the Indiana House of Representatives. They warned that this expansion of RFRA would “more likely create confusion,
conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce
other compelling interests.” While the letter was not sent directly to the governor, there were those involved in the process that saw this backlash
coming, and Governor Pence could have known, had he thought to look.

In the end, this seems to be much ado about nothing. Governor Pence fixed the law to reflect the idea that it may not be used to discriminate.
Unfortunately, this does not solve what seems to be an intractable problem—how to keep a community together as increasingly competing ideologies begin to
break in different directions.