Discrimination and RFRAs

With all the discussion from all sides weighing in on Indiana's new "Religious Freedom Restoration Act" what people are missing is that in most of the United States it is not illegal to discriminate against someone based on their sexual orientation. There are 19 state RFRAs as well as the federal version. All allow a person to ague in court that they should be exempt from a law if it conflicts with their religion; Indiana's law is different in that it allows a person to argue for a religious exemption in disputes between individuals.

Contrary to what most people believe, it is legal to discriminate in certain circumstances. For example, you can discriminate based on education. An employer may require that an applicant have a college degree. A radio station can require that their on-air personalities have a certain type of voice, some jobs need people who have certain physical characteristics. What is illegal is to discriminate based upon certain characteristics known as "protected classes". One example of a protected class is "race". Many people misunderstand the concept of protected class, thinking that blacks/African-Americans or any racial minority are a protected class. The "class" is not minority status or membership in any particular race, but the characteristic of race itself, i.e. you cannot discriminate based on race, no matter what the race. Other protected (from discrimination) classes are color, religion, national origin, age, sex, pregnancy, citizenship, family status, disability or veteran status. Notable in its absence is sexual orientation. In other words, it is perfectly legal to discriminate against someone because they are gay (or, less likely, because they are straight). This is the hidden problem in some of our current debates: not marriage equality, but the elimination of legal cover for discrimination.