Indiana Has Never Protected Gays

On Thursday, in a private ceremony in his office, Indiana Governor Mike Pence signed into law a measure that allows businesses to reject gay and lesbian customers in the name of “religious freedom.” Pence explained: “Many people of faith feel that their liberty is under attack by government action.”

In truth, LGBT people in Indiana were already at risk. Until the Supreme Court officially proclaims, on the federal level, that sexual orientation and identity belong firmly to the existing catena of illegal discrimination, LGBT persons are protected only in states that have made explicit legislative or judicial moves to protect them. But with this new legislation the State of Indiana has solidified the rights of a powerful majority to discriminate against a marginal group.

This law doesn’t overturn prior practice; it reinforces practices that are, in Indiana, already common, and in ways that often go unnoted.

A graduate student at Notre Dame, Bridget O’Brien, told us that she had on three separate occasions reported bus drivers in South Bend to the local transit association for harassing riders based on their perceived sexual orientation or gender identity. In one case, she saw an African-American trans woman almost thrown off a bus in zero degree weather. Under the new legislation, we may well find that that “almost” becomes a “firmly,” as individuals take advantage of their newly acquired legal protections.

These kinds of laws are often framed and publicized in terms of the rights of small business owners—florists, or bakers—to refuse to provide services for the weddings of affluent and attractive same-sex couples. But this is not just about bouquets and baked goods, as easy as those stories are to tell and as simple as that morality is to sell.

This legislation permits businesses and institutions that provide basic needs and services—like food, shelter, healthcare, and transportation—to put the lives of a less privileged few in peril.

When it comes to religiously based discrimination, the legal system does not permit us to interrogate the specifics, sincerity, or coherence of a person’s religious beliefs. In other words, it is not allowed to ask whether an individual’s behavior really conforms to Christian values, or whether the person claiming religious exemption is, in fact, a devout believer whose deepest moral sense might be at stake.

Such a prohibition effectively allows this new legislation to act as a smokescreen for financial self-interest and crass bigotry.

All the same, consider this modest, if admittedly somewhat facetious proposal: in cases where a person exercises his or her “right” to refuse services to LGBT people on the grounds of their deep Christian faith, that person may be exempt from civil charges, but should be subject to trial nevertheless—in the court of public opinion at least—for violating one of Christianity’s most fundamental and celebrated tenets.

Call it the “Good Samaritan Rule.”

In parable of the Good Samaritan, the Samaritan is famously the only one who takes the time and expense to care for a wounded and needy fellow traveler—despite that the one in need, a Jew, happens to hold the exact opposite religious beliefs as the Samaritan. This, indeed, is the entire message of the story—one that has been lost in the common use of the phrase “good Samaritan” to mean someone who simply helps out a stranger.

It is not that the Samaritan helps any old stranger. It is that he helps someone who is, by his very identity, anathema to the Samaritan’s deeply held faith.

It is perhaps worth remembering that this new Indiana law does not specifically target homosexuals (that would be illegal)—a breadth that means, in theory, that someone who believes that, say, Jews killed Jesus might have the “right” to deny service to anyone wearing a yarmulke. But whatever the New Testament may or may not say about homosexuality, however strongly Christian tradition may condemn various behaviors and beliefs, the most consistent and historically important ethical teaching of Jesus has been the mandate to “love others as yourselves.”

And, as the parable of the Good Samaritan teaches, these “others” include those with the most different religious beliefs and behaviors. It seems, on these grounds, that any Christians who refuse food, shelter, healthcare, or transportation to anyone in need of it might be in line with state law, but would be in clear violation of their own religious beliefs. If the state will not condemn them for it, the Christian community should.

If Pence and his particular brand of Indiana Christians want to hold themselves to higher theocratic laws, then perhaps we should hold them to the same standards.