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Will The Indiana Boycott Work?

This year’s Final Four could be the last to be held in Indiana for a long time. The NCAA has described itself as “especially concerned” by Indiana’s recent passage of a Religious Freedom Restoration Act (RFRA), and Charles Barkley, Keith Olbermann, George Takei and others have called upon the NCAA to be the next organization to boycott the state. Tech company Salesforce has said it will no longer require customers and employees to travel to Indiana for business, and gaming convention Gen Con has threatened to relocate its next meeting.

But will the boycott force Indiana to reconsider? The record of previous attempts shows that only a few have succeeded.

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These groups and companies are protesting a law that they say will allow businesses to discriminate against gay and lesbian couples on religious grounds. Gov. Mike Pence and supporters of the law say it simply mirrors the nationwide RFRA law, instructing courts to be more skeptical of actions that “substantially burden” an individual’s exercise of religion.

But many legal experts have noted that there is a significant difference between Indiana’s law and the federal law, as well as most others passed in 19 states. The Indiana law explicitly allows businesses to claim a religious freedom right and for defendants in lawsuits to raise a RFRA defense even if the government isn’t party to a discrimination claim. (Some federal courts have held that the federal RFRA also grants protection against discrimination lawsuits, but other courts disagree.) The critics say these clauses are designed to encourage businesses or individuals to refuse to provide services to same-sex couples, and hope that the boycott will persuade state officials to change the law.

If Indiana’s RFRA law does trigger a national boycott, the protest won’t depend on ordinary citizens; activists hope to recruit businesses to carry out the boycott for them by proxy.

If anything, the protest will resemble the proposed Dolce and Gabbana boycott (over the designers’ remarks on in-vitro fertilization and surrogate pregnancies for gay couples), for which activists relied on celebrities to publicly avoid the brand (because the clothes were too expensive to be boycotted by the masses).

Previous high-profile boycotts of states and municipalities have depended on conventions and sporting events to pledge to avoid the states in an effort to inflict economic damages until the offending law is changed. These protests have a mixed record, and activists have preferred to adopt other, more effective strategies, like lawsuits, when possible.

Here’s how five boycotts (and one notable non-boycott) have played out:

Fifteen States (1977-79):

The Cause: The proposed Equal Rights Amendment passed both houses of Congress in 1972 but needed to be passed by 38 states to be added to the Constitution.

The Boycott: The National Organization for Women coordinated a boycott of the 15 states that had yet to ratify the amendment, encouraging conventions to schedule their events in other states.

The Resolution: Missouri filed suit, claiming that the boycott was a violation the Sherman Antitrust Act, but U.S. District Judge Elmo B. Hunter upheld the boycott in 1979. The original ERA passed by Congress required the amendment to be ratified by 1979, so the boycott ended after the deadline passed. The boycott ended unsuccessfully — failing to recruit enough states to pass the ERA — but established the legality of future boycotts.

Arizona (1987-92):

The Cause: Arizona scrapped its initial plans to observe Martin Luther King Jr. Day, after Gov. Evan Mecham rescinded his predecessor’s executive order.

The Boycott: Conventions, artists and sporting events pledged to avoid visiting Arizona. The 1993 Super Bowl (which had been scheduled for Tempe) was relocated as part of the boycott.

The Resolution: A statewide referendum to add the holiday failed in 1990. A subsequent referendum in 1992 succeeded in establishing the holiday. The 1996 Super Bowl was held in Arizona as a reward for the change. The boycott ended after the holiday was added.

South Carolina (1999-present):

The Cause: South Carolina flew a Confederate flag over its statehouse.

The Boycott: The NCAA would not allow the state to host postseason games, and the NAACP has called for a general economic boycott.

The Resolution: South Carolina’s legislature voted to stop flying the flag in 2000 but added the flag to a Confederate memorial on the statehouse grounds. Some groups have rewarded the state for this change (the Harlem Globetrotters returned in 2015), but the NCAA and the NAACP remain unsatisfied. The boycott remains in effect, 16 years and counting.

Arizona (2010-11):

The Cause: Arizona’s anti-illegal immigration law, SB 1070, required state law enforcement officials to check the immigration status of anyone they stopped or arrested. Additionally, it imposed penalties for resident aliens who did not carry their registration documents and for citizens who sheltered undocumented persons.

The Boycott: Some municipalities (San Francisco, Los Angeles, and others) refused to pay for employees to visit the state on business (a tactic revived today by Connecticut Gov. Dannel Malloy of Connecticut to protest Indiana’s RFRA law even though his state has a RFRA law of its own). Major League Baseball was encouraged to move the 2011 All Star Game to an alternative location (it had been scheduled for Phoenix), but the game went on as planned.

The Resolution: The law faced challenges in court, and the most controversial parts of the law were put on hold by a preliminary injunction in 2010 while the case proceeded. The National Council of La Raza withdrew from calls for a boycott in 2011. In 2012, the Supreme Court struck down several elements of the law in Arizona v. United States. The boycott ended while the case was in progress; the court ruling achieved some, but not all, of the aims of the protest.

Maryland’s 1st Congressional District (2014-present)

The Cause: Maryland Congressman Andy Harris led a successful push to bar the District of Columbia from spending its own money to implement its marijuana decriminalization law.

The Boycott: Because the Eastern Shore of Maryland does not frequently host major conventions or sporting events, activists have called for a boycott to be implemented by tourists. Some D.C. businesses have also banned Harris from visiting their stores.

The Resolution: The District of Columbia has continued to move forward with decriminalization, claiming that Harris’s bill banned funds used to “enact” the law and that the law was technically enacted when the referendum was passed, so the ban does not pertain to further implementation costs. The boycott technically remains in progress, and the issue will probably be settled in court.

The “missing” boycott

After California passed Proposition 8, a ban on gay marriage, in a statewide referendum in 2008, there was no major attempt to blacklist the state. A call to boycott Utah (for its citizens’ role in funding California’s ballot initiative) did not attract support. The boycotts that did follow Prop 8’s passage were of the businesses of Prop 8 supporters, not of the state as a whole. Unlike a state boycott, designed to get legislatures or governors to rescind a law, these personal boycotts were more purely punitive. Litigation, not boycotts, became the focus of efforts against Prop 8, which was ultimately ruled unconstitutional by a federal district court.

Activists had good reason to prefer litigation over boycotts in California. In Arizona (MLK Day) and South Carolina (Confederate flag), where the states’ behavior was legal and could not be contested in court, boycotts dragged on for years, possibly inflicting damage, but not at the scale needed to force change quickly. The eventual success in Arizona may be the product of changing opinion as much as economic coercion.

These are the battles that most closely resemble the proposed boycott of Indiana. With 19 other states having RFRA laws of their own, all modeled on established federal law, it is unlikely that Indiana’s will prove to be vulnerable to attack on constitutional grounds. But even the threat of economic sanctions may have some effect. On Monday, legislative leaders in Indiana said they would amend the new law to make it clear that it does not permit discrimination against gay and lesbian couples. It’s not clear yet, however, what those changes will be or whether they will be enough to stave off a boycott.

Leah Libresco is a former news writer for FiveThirtyEight.

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