The NCAA and The State Of Indiana

Inside the Pylon has looked at the absurdity of freshman ineligibility, what it’s like to cheer for a bad guy, the bonding power of fandom, lessons in a football life, and why players are killing themselves for our entertainment. Interrupting his draft profiles, Mark Schofield left the film room to examine how the relationship between the NCAA and the State of Indiana might change after the passage of SB 101.

Last Thursday, Indiana Governor Mike Pence signed into law the state’€™s Religious Freedom Restoration Act. As codified, the legislation’s stated intention is to protect “€œpeople” from actions by the government that impose on a “person’€™s” religious liberty. As Governor Pence indicated in a tweet following the signing of the bill, he believes the legislation will “ensure that religious liberty is fully protected under Indiana law.”

It is far from clear that that is the law’€™s true purpose, and condemnation of the legislation was broad and swift. Equality advocates are in an uproar over the law, and some businesses are re-evaluating their affiliation with the state in the aftermath of its passage.

Governor Pence tried to clarify the law on a Sunday appearance on This Week with George Stephanopoulos, but failed to alleviate any concerns held by the bill’€™s detractors. When that attempt failed, Pence held a press conference on Tuesday asking for new legislation to “€œclarify”€ that the law is not a license to discriminate, and asserting that it was never his intention – nor the intention of the Indiana General Assembly – to create legislation that allowed for businesses to deny services to potential consumers on the grounds of religion.

Sorry, Governor, but I am not buying.

Opponents of the legislation argue that the law will lead to increased discrimination by essentially codifying such actions, giving potential parties both a sword with which to discriminate and a shield to hide behind when challenged in court. In her testimony during legislative debate on this matter, Jane Henegar, executive director of the ACLU of Indiana, cited examples of discrimination in other states and municipalities where similar legislation was passed.

Supporters of the legislation, such as State Senator Scott Schneider, argue that the legislation is intended to protect the exercise of religion, not to allow discrimination. According to Schneider, “€œthis legislation acts as a shield, not a sword.”€ Others argue that the bill mirrors the 1993 Federal Religious Freedom Restoration Act signed into law by then-President Bill Clinton, as well as legislation passed in 19 other states. Indiana University law professor Daniel Conkle, a supporter of gay rights and same-sex marriage, testified in support of the new legislation, arguing that discrimination against same-sex couples would be “€œunlikely” because the courts €”typically have held that anti-discrimination laws [such as Indianapolis’€™s human rights ordinance] serve a compelling government interest.”

The law as written states that a governmental entity may substantially burden a person’€™s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. Known as “€œstrict scrutiny,”€ this is the toughest of the three standards courts apply in cases involving a constitutional question.The lowest standard, “€œrational basis,”€ simply requires that a law be “€œrationally related to a legitimate government interest.” This is important because some municipalities in Indiana currently have anti-discrimination ordinances that may become null under this new legislation.

Thus, if –€“ or, more likely, when –€“ Indianapolis’€™s anti-discrimination ordinance is challenged under this new Indiana law, city attorneys will need to prove that the city’€™s regulation satisfies this two-pronged, strict scrutiny standard, which mirrors the 1993 Federal law.

If you needed any further evidence as to the underlying goal of this legislation, and that Governor Pence is not telling the complete truth, consider SB 568, which was a similar bill proposed in the Indiana legislature. Under that potential law, the standard would have been, “€œ…is essential to a compelling governmental interest.”€ [emphasis added] This would have made it virtually impossible to find any governmental burden legal. The legislature passed SB 101, with the traditional strict scrutiny standard, but their goal is clear from this proposed alternative language: to render anti-discrimination regulations void.

Perhaps more important is the manner in which the new Indiana law departs from the 1993 Federal law and the laws passed in other states. Under this Indiana law, the definition of a “€œperson”€ is massively expanded. In this legislation, a “person”€ is defined as: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes. (See Section 7, Indiana SB 101)

In other words, this broad definition of person expands the protections of the law to virtually every company, store, employer, or loose grouping of people imaginable.

Whereas the 1993 Federal RFRA sought to provide a claim or defense to persons or religious groups from governmental intrusion, Indiana’€™s legislation extends that defense to corporations and other businesses. This is where opponents of the legislation believe the law gives rise to codification of private discrimination. As set forth in a letter signed by 30 legal scholars to Indiana State Representative Ed Delaney, “€œ…the definition of “€˜person” under the proposed RFRA differs substantially from that contained in the federal RFRA, affording standing to assert religious liberty rights to a much broader class of entities than that currently recognized by federal law.” [emphasis added]

This leads us to the hypothetical scenario where a small business can deny service to a gay couple and, if challenged in court, the business can seek protection as a covered “person” asserting religious liberty under this new Indiana law.

Which brings us back to Indianapolis.

This weekend the college basketball world will descend upon the city for the Final Four. Thousands of supporters from across the county will dine in the city’€™s restaurants, sleep in their hotels, and perhaps enjoy an adult beverage or two at one of the local watering holes. Following suit will be thousands of media members, as well as representatives from each school including band members, cheerleaders, coaches, boosters and, yes, the players themselves.

Chances are, one of them might be gay. Or transgendered. Or bear any one of a number of attributes or identities over which a business owner can now deny service upon the enactment of this law.

Right down the street, at 700 W. Washington Street, stands the NCAA’s headquarters.

In the wake of this legislation, NCAA President Mark Emmert stated that the NCAA “…will work diligently to assert student-athletes competing in, and visitors attending, next week’€™s men’s Final Four in Indianapolis are not impacted negatively by this bill. Moving forward, we intend to closely examine the implications of this bill and how it might affect future events as well as our workforce.”€ [emphasis added] It is too late to move the Final Four from Indianapolis. But it is not too late to move subsequent events from Indiana, including next year’s Womens’ Final Four.

Nor is it too late to start looking for a new site for the NCAA Headquarters.

This is not without precedent. In 2001, the NCAA imposed a ban on Mississippi and South Carolina, declaring them unable to host post-season events at predetermined sites because both states still fly the Confederate flag over their state capitol buildings.

Nor is it without precedent for a sporting organization to speak out in response to a state contemplating discriminatory legislation. In February of 2014 the Arizona legislature passed SB 1062, a religious freedom bill, with language similar to that in the new Indiana law. Arizona’€™s SB 1062 expanded the definition of a person in the 1993 Federal RFRA to include “any individual, association, partnership, corporation, church, religious assembly or institution, estate, trust, foundation or other legal entity.

With the bill sitting on the desk of then-Governor Jan Brewer awaiting her signature, and Super Bowl XLIX scheduled to take place a year later in Phoenix, the Arizona Cardinals, the Arizona Super Bowl Host Committee, and the NFL all issued statements against the legislation. As stated by Greg Aiello of the NFL: “€œOur policies emphasize tolerance and inclusiveness, and prohibit discrimination based on age, gender, religion, sexual orientation, or any other improper standard.”€

Governor Brewer did not sign SB 1062 into law.

Will the NCAA take a similar stand? To wit, as set forth by the NCAA’s Office of Inclusion:

As a core value, the NCAA believes in and is committed to diversity, inclusion and gender equity among its student-athletes, coaches and administrators. We seek to establish and maintain and inclusive culture that fosters equitable participation for student-athletes and career opportunities for coaches and administrators from diverse backgrounds. Diversity and inclusion improve the learning environment for all student-athletes and enhance excellence within the Association.

The Office of Inclusion will provide or enable programming and education, which sustains foundations of a diverse and inclusive culture across dimensions of diversity including, but not limited to, age, race, sex, class, national origin, creed, educational background, disability, gender expression, geographic location, income, marital status, parental status, sexual orientation and work experiences.

Governor Pence and the Indiana General Assembly have made their intentions clear, despite protests to the contrary. Therefore, if the NCAA is to honor its own ideals and standards, it cannot continue to do business with the state of Indiana as it does currently. If the Association truly believes in, and is committed to, diversity and inclusion, it cannot remain headquartered in a state where its employees might leave work and find themselves discriminated against. The NCAA has a chance to be a positive force for social change, and must act accordingly.

Follow Mark on Twitter @MarkSchofield.

Mark Schofield knows play action, the free releasespectacular plays and how to throw on Cover 2Cover 3 and Cover 6.

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