Lambda Legal's Jenny Pizer Explains Why Indiana's New "Religious Freedom" Law Is So Wrong

This week Indiana Governor Mike Pence (R) signed into law a "license to discriminate" bill (SB 101) that proponents claimed was just aimed at clarifying protections for religious freedoms in Indiana but which LGBT activists and others had warned could open up all sorts of disfavored minorities to discrimination under the guise of protecting religion. Of course, we at MadProfessah.com have been following the recent proliferation of deceptively anti-LGBT legislation in multiple states such as Texas, Arkansas and West Virginia.

Lambda Legal's Jenny Pizer explains why Indiana's "Religious Freedom Restoration Act (RFRA)" is so dangerous to the civil rights of LGBT people and others:

The truth is, Indiana’s RFRA is designed to allow and in some respects, invites people to disregard laws that should apply to everyone conducting a business — laws to prevent people from harming each other in the name of religion.At Lambda Legal, our top concern is religiously motivated discrimination against people already vulnerable to exclusion and mistreatment, especially the LGBT community. 

Gov. Pence, in his signing statement, said, "This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved." 

He’s wrong, or disingenuous, on both points. If this new law does not seek to facilitate discrimination, why did legislators pressing for its passage say it’s “needed” to allow businesses to turn away same-sex couples? And why did a majority of Indiana legislators then reject amendments offered to specify that these enhanced religious rights cannot be used to excuse discrimination?  

Further, about disputes between private parties, the law says explicitly, “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” This language was included to allow private parties to object to following a law that otherwise would apply to them, and to assert these expanded religious rights in a dispute with another private party. 

A stark problem for LGBT Hoosiers is that unlike in other states, Indiana law does not include sexual orientation and gender identity within the state’s nondiscrimination framework. 

When antigay lawmakers say laws like this are “needed,” and they point to cases from other states where we successfully resisted use of religion to defend discrimination, they don’t acknowledge that a statewide nondiscrimination law was on the books in those places. Currently, less than half the states have such laws.

When asked about these points on national television, Gov. Pence (who previously had been mentioned as another potential Republican candidate for President in 2016) did not acquit himself well. He said that he wanted to work with the Indiana legislature to clarify that SB 101 does not include a license to discriminate but that he did not intend to include sexual orientation or gender identity in statewide nondiscrimination legislation.

Indiana's largest LGBT group, Freedom Indiana immediately took the Governor to task on the lack of a real commitment to protect LGBT people from discrimination in Indiana:

Governor Pence didn't listen last week when he signed this discriminatory law into effect, and he's still not listening to the growing chorus of criticism locally and nationally. While we appreciate his recognition that he's placed our state in peril, he's obviously trying to have it both ways. You can't 'clarify' discrimination. Indiana now has billions of dollars and thousands of jobs on the line, all because the Governor wouldn't stop this dangerous bill. He has a second chance to save our reputation for Hoosier hospitality, but he has to stand up and protect LGBT Hoosiers. Discrimination is not a core Hoosier value, and we can't afford to let our state continue to suffer. 

Thousands of people attended a march protesting SB 101 in Indianapolis yesterday and major corporations are announcing that they are scuttling plans to expand or do more business in Indiana as a result of the controversy.

Already the reaction in Indiana seems to be dissuading other red states like Montana and Georgia from moving so quickly to appear to trample the civil rights of American citizens in the quest to reify religious beliefs.

Lambda Legal Files Marriage Equality Lawsuit In Arizona!

Good news out of Arizona regarding LGBT equality! Lambda Legal has filed a lawsuit seeking to gain the right to marriage for same-sex couples in Arizona.

In the lawsuit, Lambda Legal, joined by pro bono co-counsel from Perkins Coie LLP, argues that the Arizona constitutional amendment and state statutes barring same-sex couples from marriage violates the Equal Protection Clause and the Due Process Clause of the U.S. Constitution.  

The lead plaintiffs, Nelda Majors, 75, and Karen Bailey, 74, of Scottsdale, have been together for more than 55 years, and together have raised two children, Karen’s great grand-nieces Marissa and Sharla, as their own daughters since the girls came into their home as toddlers. Marissa is now 15 and Sharla 21. 

“Karen and I have been together since 1957,” Majors said.  “We’re a committed, loving family, have raised two amazing girls together, have seen each other through thick and thin, in sickness and in health. After five decades together, we want to celebrate and affirm our deep love for each other as other couples do, before our friends and family, through marriage. We’re also getting up there in years. I want to know that, should anything happen to me, there would be no question about Karen being allowed to be with me at the hospital, and vice versa. If we were married, there would be no question and we both would feel more secure.” 

“Arizona’s ban on marriage for same-sex couples serves no legitimate state interest, brands these loving couples and their children as second-class citizens, and encourages private bias and discrimination,” Pizer said. “And because the State does not even offer a lesser status such as civil union or domestic partnership, these loving couples live every day with the uncertainty that their families and relationships lack even basic protections.”

The name of the lawsuit is Majors v. Horne. As I have said, repeatedly, the fact that in the 9th U.S. Circuit (Washington, California, Oregon, Arizona, Idaho, Nevada and Montana) laws in these states that classify based on sexual orientation must receive heightened scrutiny that they are not violating the equal protection rights of LGBT people makes it very likely that bans on same-sex marriage in these states are toast. The deadline to appeal the decision that declared sexual orientation subject to heightened scrutiny passed last Friday, and this lawsuit I'm sure is a consequence of that decision.

Celebrity Friday: Jenny Pizer Leaves Lambda Legal For UCLA Law

Jennifer Pizer

The longtime Marriage Director of the Lambda Legal Defense and Education Fund, Jennifer C. Pizer, has decided to jump ship to the Williams Institute on Sexual Orientation Law and Public Policy at UCLA Law School, where she will become Legal Director and The Arnold D. Kassoy Senior Scholar of Law.

In this newly endowed position at the Williams Institute, Pizer will lead the Institute's projects related to legal research and analysis on LGBT issues.  Her work will include conducting legal research, writing articles and commentary, drafting amicus briefs for key court cases, drafting and providing testimony for legislation, organizing and conducting education programs for judges and lawyers, and teaching courses at UCLA. 

Pizer is a graduate of Harvard College and New York University School of Law.  After law school she served as a judicial clerk to the Hon. Ann Aldrich of the U.S. District Court for the Northern District of Ohio, was Legal Director of the National Abortion Rights Action League, and practiced intellectual property and business torts litigation with Townsend and Townsend and Crew LLP in San Francisco.  She comes to the Williams Institute from a very successful career at Lambda Legal Defense and Education Fund, where she was Senior Counsel and the National Marriage Project Director.    

As an Adjunct Professor, Pizer has taught courses on sexual orientation law at USC Law School, Loyola Law School, and Whittier Law School.  Her publications include, “The Effects of Unequal Access to Health Insurance for Same-sex Couples in California” published in Health Affairs 29, No. 8 (2010), with Ninez Ponce, Susan Cochran, and Vickie Mays; “Facial Discrimination: Darlene Jespersen’s Fight Against the Barbi-fication of Bartenders,” published in Duke Journal of Gender Law & Policy, Vol. 14, Issue 1 (2007); “Arresting ‘The Plague of Violence’: California’s Unruh Act Requires School Officials to Act Against Anti-Gay Peer Abuse,” published in 12Stanford Law & Policy Review 63 (2001), with Doreena Wong.   She has commented extensively on LGBT legal developments for both leading national media and the legal press.

Congratulations, Jenny!