After the controversial Indiana Religious Freedom Restoration Act, businesses sent sharp warnings to the state that the RFRA bill was the wrong way to go. Threats to boycott the state followed along with a huge backlash that ultimately led Republican Gov. Mike Pence to find a fix to amend the bill that he signed into law.
This week, a judge heard arguments in a case of religious leaders who are suing because they say the "fix" to the law doesn't authorize discrimination. Their quarrel is that the law still requires that they include homosexuals, even if something is explicitly for heterosexuals. They cite a religious marriage counseling class that is aimed at heterosexual couples, which they believe should allow them bar anyone not heterosexual.
Attorney Jim Bopp, who earned fame by his work on Citizens United, has been acting on behalf of the plaintiffs in the case. He argues that the "fix" has allowed municipalities in the state to pass their own non-discrimination ordinances that are more liberal and are trampling all over the religious freedoms of his clients. Interestingly, however, Bopp left out Attorney General Greg Zoeller and Gov. Mike Pence in the lawsuit and neither are involving themselves in the legal battle, whether verbally or legally.
As Indiana attorney Joshua Claybourn points out in The Federalist, Zoeller attacked U.S. Attorney General Eric Holder when he announced that state attorneys general don't have to defend anti-LGBT laws if they don't want to.
“To exercise discretion more broadly, and selectively to pick and choose which statutes to defend, only erodes the rule of law," Zoeller said in the Indiana Law Journal.
Pence, who was once was all for discriminating LGBT people, is now Republican presidential candidate Donald Trump's running mate and seems to be running from his anti-LGBT history. Pence conveyed that he was an ally to those who wanted the RFRA bill signed.
“The Constitution of the United States and the Indiana Constitution both provide strong recognition of the freedom of religion but today, many people of faith feel their religious liberty is under attack by government action,” said Pence, in a statement after the bill signing.
Pence even posed for photos with the people now suing because they believe the legislature's "fix" stomps on their religious freedom. Not long after, however, his polling numbers plummeted while opposition to the bill skyrocketed. Now, Pence trying to have it both ways. By not defending his amendment to the law he is a hero to the anti-LGBT evangelical wing of the Republican party but appeared more mainstream by signing the amendment to begin with.
Claybourn's op-ed accuses both Pence and Zoeller of undermining "their respect for the rule of law and the idea of popular government." He argues, "if Pence didn’t like this law, he shouldn’t have signed it. Now that he has done so, he needs to uphold his legal obligation to defend it."
It's a difficult challenge now that his presidential running mate is pitching LGBT voters to support his campaign.