INDIANAPOLIS —Gov. Mike Pence asked lawmakers Tuesday to send him a clarification of Indiana's new religious-freedom law this week, while Arkansas legislators passed a similar measure, despite criticism that it is a thinly disguised attempt to permit discrimination against gays.
The Arkansas proposal now goes to Republican Gov. Asa Hutchinson, who has said he will sign it.
Legal experts say such religious freedom laws have never been successfully used to defend discrimination against gays — and rarely have been used at all.
Pence defended the Indiana law as a vehicle to protect religious liberty but said he has been meeting with lawmakers "around the clock" to address concerns that it would allow businesses to deny services to gay customers.
The governor said he does not believe "for a minute" that lawmakers intended "to create a license to discriminate."
"It certainly wasn't my intent," said Pence, who signed the law last week.
But, he said, he "can appreciate that that's become the perception, not just here in Indiana but all across the country. We need to confront that."
However, past may not be prologue in these cases. Gays have only recently won widespread legalization of same-sex marriage, and religious conservatives are now scrambling for new legal strategies to blunt the trend.
"There's an inability to look to the past as a reliable predictor of the future on this," said Robert Tuttle, a church-state expert at George Washington University School of Law. "If what you're saying is that it can be certain it won't be used — you can't know that because this is now a different situation."
Indiana's law provides heightened protections to businesses and individuals who object on religious grounds to providing certain services. The law triggered a swift and intense backlash from gay rights supporters, businesses such as Apple, and some states, which barred government-funded travel to Indiana.
At a news conference Tuesday, Pence — a potential presidential candidate — strongly defended the Indiana statute, which grants individuals and businesses legal grounds to defend themselves against claims of discrimination. But he also said the state would "fix" the law to make clear that it does not give license to businesses to deny services to anyone.
After Pence signed the law Thursday, corporate executives nationwide — as well as the White House and likely Democratic presidential candidates Hillary Rodham Clinton and Martin O'Malley — issued sharp condemnations.
Arkansas bill
If enacted, the Arkansas proposal would prohibit state and local governments from infringing on a person's religious beliefs without a "compelling" reason. The proposal was given final approval in a series of votes after the Republican-led House rejected efforts to send the bill back to committee to change it.
"The reality is what we're doing here is really not that remarkable," said Republican Bob Ballinger, the lawmaker behind Arkansas' measure. "I do understand it's kind of taken on a life of its own."
Similar proposals have been introduced this year in more than a dozen states.
Arkansas-based retail giant Walmart, which has said the bill sends the wrong message about its home state, and Little Rock business leaders called on Hutchinson to veto the bill.
Douglas Laycock, a constitutional scholar at the University of Virginia Law School who helped win passage of the 1993 federal Religious Freedom Restoration Act, said no one has successfully used such laws to override nondiscrimination statutes.
But Eunice Rho, advocacy and policy counsel for the American Civil Liberties Union, said the landscape shifted as gay marriage became legal in an increasing number of states in the past three years. Rho noted that when Indiana's bill was moving through the legislature, its supporters rejected amendments that would have limited its potential to allow discrimination.
"The language reflects the desire to use these laws in a certain way, to be able to discriminate and cause harm," Rho said.
Little federal impact
The federal law was enacted in 1993 with near-unanimous bipartisan support and was aimed mainly at protecting religious minorities from laws that inadvertently infringed on their practices. Among the few recent cases:
• An Apache leader who protested government seizure of eagle feathers that he used in a religious ceremony.
• A Sikh woman who sued after the IRS fired her for wearing a ceremonial 3-inch dagger to work.
States began passing their own Religious Freedom Restoration Acts after the U.S. Supreme Court ruled in 1997 that the federal law didn't apply to the states. Twenty states now have such laws.
"The bottom line is very few cases — and even fewer wins for the religious side," Laycock said.
Arizona passed such a law in 2014, but Republican Gov. Jan Brewer vetoed it amid intense criticism from major corporations and political leaders from both parties.
The Washington Post contributed to this report.
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