POLITICS

Indiana Gov. Mike Pence Either Confused Or Misleading Everyone About His Controversial Law

03/31/2015 01:34 pm ET | Updated Mar 31, 2015

WASHINGTON -- On Tuesday, Indiana Gov. Mike Pence (R) repeatedly compared the controversial religious freedom law he signed last week to an existing federal law backed by Democrats, despite the fact that the Indiana law has additional language that facilitates discrimination against LGBT citizens, critics say.

The federal Religious Freedom Restoration Act, signed by former President Bill Clinton in 1993, was designed to ensure that religious minorities are protected from laws passed by the federal government that may inadvertently lead to discrimination.

On Tuesday, Pence repeatedly invoked Clinton's name to drum up support for his law. "I think there's a growing public understanding that Indiana has passed a law here that mirrors the federal law that President Clinton signed," he said at his press conference in response to national backlash.

He added, "The intent of the law when President Clinton signed it, the intent of the law when I signed it was to give the courts in our state the highest level of scrutiny in cases where people feel that their religious liberty is being infringed upon by government action."

He also repeated in a Wall Street Journal op-ed on Tuesday that "It simply mirrors federal law that President Bill Clinton signed in 1993."

But Pence's talking point doesn't address a simple fact: His law has language that is not contained in the federal RFRA. For starters, the Indiana law defines a "person" as including "a limited liability company, a corporation, a company, a firm, a society, a joint-stock company," effectively granting companies a right to religious exercise.

"It leaves open the question of what sort of religious views a joint stock company would hold, but that may be something for lawyers to ponder," White House Press Secretary Josh Earnest said during his Tuesday briefing.

Robert Peck was legislative counsel for the American Civil Liberties Union from 1991 to 1995, while Congress was debating the federal RFRA. In 1992, he testified before the Senate Judiciary Committee about why such legislation was so important. He said Tuesday that the Indiana RFRA is not the same as the federal law.

"By specifying the unnatural persons that qualify to have religious beliefs, I think they're creating problems for those corporations that they probably don't even realize," Peck said.

No such language about corporations exists in the federal RFRA. Additionally, the federal RFRA says that a person whose religious exercise has been burdened "may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."

Indiana's law goes further, adding that a person -- which again, could be a for-profit company -- may use religion as a claim or a defense in a proceeding "regardless of whether the state or any other governmental entity is a party to the proceeding."

This language is controversial because it allows a person or corporation to cite religion in a private lawsuit. For example, if a bakery refuses to make a cake for a same-sex couple because their sexual orientation offends the owner, this law could be invoked. This is also notable because, as recently as last year, federal circuit courts were split on whether the federal law can be used this way.

"The statute shows every sign of having been carefully designed to put new obstacles in the path of equality; and it has been publicly sold with deceptive claims that it is 'nothing new,'" Garrett Epps wrote in The Atlantic.

When Pence insists that the law is no different than Clinton's, it's unclear whether he is ignoring these key provisions or simply not aware of them. His office did not immediately respond to a request for comment.

On Tuesday, U.S. Sen. Chuck Schumer (D-N.Y.), who sponsored the federal law, slammed defenders of Indiana's law for making the comparison. He wrote on Facebook, "It is completely false, and a disingenuous argument to boot; they should cease and desist immediately comparing the federal RFRA of 1993 to their present, misguided law."

Sarah Warbelow, legal director for the Human Rights Campaign, made the same point in a call with reporters on Monday. "It is disingenuous to say that the Indiana RFRA is substantially similar to the federal RFRA or laws in other states," she said.

Earnest also called out Pence for "falsely" suggesting the Indiana law is the same as the federal law.

"That is not true," he said Tuesday. "The Indiana law is much broader."

Jennifer Bendery and Amanda Terkel contributed reporting.

This post has been updated with comment from Robert Peck.

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