Much of the outrage over Indiana’s recently enacted religious freedom law is misplaced, since the state has never offered gay people significant protection from discrimination, Professor David S. Cohen wrote in essays he co-authored in Slate and USA Today on April 1.
“Like most states, Indiana has no state law outlawing discrimination based on sexual orientation in employment, public accommodations, schools or housing,” wrote Cohen and co-author Leonore Carpenter, an associate law professor at Temple University, in the USA Today essay. “There are a very small number of local laws that protect against some forms of anti-gay discrimination and there is a statewide ban on public employment discrimination, but, other than that, there is no anti-discrimination protection in Indiana for gay people.”
Those seeking to support gay rights should turn their attention to North Dakota, which is mulling legislation that would affirmatively prohibit discrimination based on sexual orientation, Cohen and Carpenter wrote in Slate.
The chief problem with Indiana's religious freedom law, they said, is that it could undermine any future sexual orientation protections that could be written into state law, and it also allows people to sidestep anti-discrimination measures that do exist in a few Indiana localities.
Yet the businesses that are now threatening to boycott Indiana and pull their money out of the state have long been doing business in a place that allows anti-gay discrimination, the authors said, adding that only 21 states specifically prohibit discrimination based on sexual orientation in employment, housing and public accommodations, and only 15 prohibit discrimination in schools.
"The clear message over the past week has been that most Americans believe that gay and lesbian people shouldn’t be denied service in a restaurant, kicked out of their homes, or fired from their jobs just because of their sexual orientation," Cohen and Carpenter wrote in Slate. "If we’re serious about that, changing the law to protect against anti-gay discrimination is exactly what we need—not just in North Dakota, but also in Indiana and Arkansas and everywhere else as well."