Update: April 2, 2015: This afternoon the North Dakota House voted down the proposed amendment by an almost 2-to-1 margin. This was the third time in the last six years such legislation failed to win approval in the North Dakota legislature.
The national outrage over the Indiana Religious Freedom Restoration Act over the last two weeks has been almost deafening. Countless businesses, celebrities, athletes, politicians, and other states have criticized the new law for allowing anti-gay discrimination. Some have even gone so far as to cancel events, withdraw expansion plans, or call for a full-scale boycott of the entire state. Because of this pressure, Gov. Mike Pence has come out in favor of altering (he calls it “clarifying”) the law.
On the heels of events in Indiana, Arkansas has entered the fray with its own religious freedom bill. Almost immediately after passage by the legislature earlier this week, pressure mirroring that in Indiana was put on Gov. Asa Hutchinson. Fearing the backlash that Indiana has faced, Gov. Hutchinson announced today that he would not sign the bill unless it is altered to minimize its effect on workplace discrimination.
Many observers have lauded this outpouring of negative attention as a welcome sign of the advances in acceptance that gays, lesbians, and bisexuals have experienced nationwide, even in states not exactly known as hotbeds of liberalism. While it may be true that Indiana and Arkansas demonstrate something important about the state of gay and lesbian rights, if we really want to go where the action is, we should direct our political energy elsewhere—specifically, at North Dakota. The state is in the process of considering something far more important than Indiana’s and Arkansas’ laws—affirmatively writing into its anti-discrimination law protections for gay people.
Understanding why North Dakota needs our attention means sorting out a basic misconception about the Indiana and Arkansas laws that almost none of the media attention in the past week has made clear: Even before these new laws, discrimination against gay people was perfectly lawful in almost all of Indiana and Arkansas. The religious freedom bills being talked about this week change very little. In fact, this is true in most states and under federal law.
This is because neither Indiana nor Arkansas protect against anti-gay discrimination. Both have anti-discrimination laws, but they cover other types of discrimination (like discrimination based on race), not discrimination based on sexual orientation. Without an affirmative protection in the law, anti-gay discrimination is perfectly lawful. And unlike race or religion, there are no federal anti-discrimination laws that cover sexual orientation, so federal law can’t fill in the gaps for the thousands of gay and lesbian people who are left unprotected by their state laws.
So the pizza shop in Walkerton, Indiana, that made news today because its owners said they would refuse to cater a same-sex wedding under the religious freedom law? They were already allowed to do so, because Indiana never had a law that would have stopped them. If all the criticism were heeded and the Indiana law were repealed, gay and lesbian Hoosiers could still be discriminated against throughout most of the state.
While the calls for boycott and repeal in Indiana make us feel like progress is being made, they miss the point.
That is why what is happening in North Dakota right now is so important and deserving of at least as much attention as the kerfuffles in Indiana and Arkansas have received this week. North Dakota, the state with the fastest-expanding economy in the country for several years running, has no statewide protection for gay rights and very little in terms of local laws, especially outside Fargo and Grand Forks.*
The state is considering passing an amendment to its anti-discrimination law that would add sexual orientation to the characteristics that are protected against discrimination. The bill passed the North Dakota Senate 25-22 last month. The House should vote on it this week, probably Thursday.
The House is going to be a big hurdle because it is more conservative than the Senate. Earlier this week, the House Human Services Committee voted 11-2 to recommend that the House not pass the bill. The vote will be close, and the bill could go down in defeat, as so many sexual-orientation-inclusive anti-discrimination laws throughout the country regularly do. As a striking example, the state of Pennsylvania has been trying without success to pass such a law since the 1975-76 legislative session. Yes, for the last 40 years, Pennsylvania has been unable to enact the kinds of simple protections that most Americans think already exist.
But that was without the attention of the nation. If the same attention that has been directed at Indiana and Arkansas were to focus on North Dakota, maybe this would change.
If the CEO of Apple were to call a defeat of North Dakota’s law “dangerous”; if George Takei were to take to Twitter and Facebook to urge people to pressure North Dakota; if bands, athletes, and major companies were to call into question whether they would travel to or do business in North Dakota in the future; if article after article were written about the importance of protecting against discrimination in North Dakota, then maybe the House would vote to approve the change. After all, Gov. Hutchinson had previously given public support to Arkansas’ religious freedom bill. But because of intense public pressure this week, he changed his tune.
The same thing can happen in North Dakota, but only if we immediately shift our attention, our outrage, and our resources to that state. Doing so would be immensely more worthwhile than calling for repeal of the religious freedom law in Indiana or for veto of the Arkansas bill. Defeating those laws would just revert to the status quo, which allows discrimination anyway, while helping to pass the bill in North Dakota would actually ban it.
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. 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.
* Correction, April 1, 2015: This piece originally misidentified Grand Forks as Grand Rapids.