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Indiana Still Hasn’t Learned Its Lesson

Selene Kaye

In one, foul sweeping gesture of rejection, the Indiana legislature this week killed our best chance of securing equal protections for LGBT Hoosiers this year. The bill, SB 344, was a measure that, while flawed in its current incarnation — with amendments advocates were working to insert — would have prohibited discrimination at the state level.  Indiana lawmakers’ unwillingness to move this bill through the legislative process reflects a special kind of stubbornness. They have not learned from last year, when the prospect of a law that would open the door to discrimination against LGBT Hoosiers unleashed backlash that the state is still feeling today.

The more things change, the more they stay the same.

Last year, the fight played out in plain sight of the entire nation. Governor Mike Pence and the Indiana legislature passed a Religious Freedom Restoration Act (RFRA) bill, which would allow someone to claim that their religion gives them a right to undermine nondiscrimination laws. Prominent allies like Salesforce, the NCAA, Angie’s List, Gen Con, and others spoke up and said that discrimination against LGBT people was not only wrong but bad for business. Some even said they would stop investment in Indiana. Governor Mike Pence was thrown into an endless crisis news cycle, which he fumbled over and over, trying to relay that Indiana was a welcoming state while pushing through a bill that would open the door to discrimination. This backlash caused RFRAs to fail in Georgia, North Carolina, and Nevada, just to name a few.

The national pressure forced lawmakers’ hands into adding a welcomed (though incomplete) “fix” that said the RFRA couldn’t be used to discriminate against LGBT Hoosiers in housing, employment, and public accommodations.

The climate was tense but a victory of sorts was won. For the first time, the majority of the country, including the business community, was united in saying that discrimination against LGBT people is wrong and we must put a stop to it. Better yet, the country was vocally on our side. The air was ripe with anticipation of the Supreme Court marriage case, the possibility of actually earning equal rights in the courts and in the legislatures was palpable.

Just months later, marriage equality became the law of the land in all 50 states, including Indiana. Perhaps come the 2016 legislative session, lawmakers were angry they had lost both on the RFRA and marriage equality fronts. Perhaps they thought the country wasn’t watching this time. Whatever the reason, rather than moving forward in the direction of the nation and in line with the majority of their constituents and businesses, they introduced “non-discrimination” bills riddled with carve-outs, SB 100 and SB 344, and proposed another terrible measure, SB 66, which would have replaced last year’s RFRA with an even more discriminatory version lacking the fix.

You’d think they would have learned their lesson. Once again, Hoosiers, and alongside them, the country, spoke up. This time, we were prepared. The Freedom Indiana coalition stepped up to the plate again, now representing more than 60,000 Hoosiers and working closely with a new coalition of businesses, Indiana Competes. Calls to the rest of the nation fell on ears eager to help. Without ever being given a hearing, SB 66 was killed.

There was renewed hope that perhaps an affirmative non-discrimination bill would at long last prevail. SB 344 passed out of committee hours later. Unfortunately, it didn’t go far.

Yes, SB344 was far from a true non-discrimination bill. But had it stayed alive long enough for further negotiations, advocates were hopeful we could have removed some of the bad carve-outs and added some necessary amendments, most significantly gender identity protections, to make it a bill worth passing.

Perhaps it’s not at all ironic that SB 344 was killed on Groundhog Day. It’s actually perfectly fitting in some ways. Those who do not learn from their mistakes are doomed to repeat them.

Unlike Bill Murray in that clever romantic comedy, we hope that Indiana lawmakers have finally learned their lesson and don’t try to pull a fast one on the LGBT community again. To the rest of the country, may they heed the lessons learned from Indiana and know that we’re watching and assuming ready position. At the end of the day, all we’re fighting for is a fair playing field, one in which everyone can pursue a life of their choosing free from discrimination. 

The Groundhog predicted an early spring this year. Perhaps there’s a silver lining in what’s to come in the legislatures. We know it won’t be an easy battle ahead — it never has been — but we know one thing for sure: We’re not afraid of our shadows.

Selena Kaye is the American Civil Liberties Union's out for freedom campaign manager. Follow her on Twitter @skACLU.

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