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Tuesday, March 31, 2015

Titling Indiana Law "Religious Freedom Act" is Newspeak

There are a number of great articles on why the Indiana Law is an exercise in licensing Oppression rather than actually protecting religious Freedom. So I'll keep this as short as I can manage.

Essentially the problem with the law is in it's details. Two of them:

  1. "that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches." []
  2. Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. []

Both these features mean that the law is intended to make it harder for the discriminated to sue someone claiming a religious exemption from serving them in their "public accommodations." Why is this a problem? Because it means that had such a law been in place in the 60's, no civil rights demonstrators could have forced stores to serve black people if the Corporation claimed that it had a religious belief that serving black people was "against it's religion. Public accommodation laws don't mean that a Kosher store has to sell ham, but they do mean that if people come into a Kosher store to buy goods, the store owners can't eject them because they are heretics, Christians, Reform or secular Jews. This law is designed to subvert that, and it has already led to signs asserting a "religious" right to not serve Gay people when they enter them. Public accommodations laws are designed to prevent religious oppression, not infringe on the religious rights of those serving the public. When someone opens his doors for business and invites the public in, his right to discriminate on any basis other than the ability to buy the goods becomes a matter of public equity and justice and a civil right. If our courts weren't corrupt I'd be sure that this law wouldn't stand a court challenge, but since we have a corrupt SCOTUS we need to take more direct action to stop this.

The law has similar text to previous religious freedoms laws but those two details make it very different.

The Atlantic Article notes:

“the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply 'because the government is not a party.'” [Atlantic Article]

I agree with the many folks who are pointing out how outrageous this law really is. Even it's proponents try to link it to previous laws (which had bad consequences but weren't this explicitly evil). I listened to the Religious discrimination law defender Brian Brown this morning on Bruce Dupuyt's talk show (which I watch instead of Morning Joe and his Faux lite crowd) making the "law is the same as that of Clinton's" argument and otherwise repeatedly lying about the law until he finally answered the direct question at the heart of it; he believes that businesses should not have to serve gay people if they don't feel like it for "religious" reasons. He claimed that refusing to serve gays is not "discrimination". The upshot is they have an opinion that is repugnant to most people and want to soft pedal it to those who find it repugnant. He thinks people have a first amendment right to discriminate against people on the basis of religious belief. He admitted it on the air after repeatedly denying it. When I heard that I decided I needed to weigh in on this subject.

Further Reading:
Mike Pence is Lying through his Teeth
What Makes Indiana Religious Freedom Law Different []
Text of Law:
Full Text:
"AN ACT to amend the Indiana Code concerning civil procedure.
"Be it enacted by the General Assembly of the State of Indiana:
Chapter 9. Religious Freedom Restoration"
“Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.”
“Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.”
“Sec. 3. (a) The following definitions apply throughout this section: (1) "Establishment Clause" refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) "Granting", used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.”
“Sec. 4. As used in this chapter, "demonstrates"means meets the burdens of going forward with the evidence and of persuasion.”
“Sec. 5. As used in this chapter, "exercise of religion" includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.”
“Sec. 6. As used in this chapter, "governmental entity" includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.”
“Sec. 7. As used in this chapter, "person" includes the following: (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.”
“Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) 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.”
“Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.”
“Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person's exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney's fees, to a person that prevails against the governmental entity under this chapter.”
“Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.” Taken 11:46 3/31/2015

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