Indiana's "Religious Freedom" law

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KnightExemplar
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Indiana's "Religious Freedom" law

Postby KnightExemplar » Thu Apr 02, 2015 4:15 pm UTC

Hey, there was discussion in other threads (Darker side of the News), but I think the topic has grown outside the scope and probably deserves its own discussion now. I'm titling this topic "Religious Freedom" because that's the supposed purpose of the bill. Most people have interpreted the bill as a thinly-veiled anti-gay pro-discrimination law.

Here's a case that IMO strikes to the heart of the issue: http://gawker.com/pizzeria-against-gay- ... 1695221407

Memories Pizza, the Walkerton, Ind. pizzeria that took a brave stand against delivering its pizza to gay weddings this week, is closing its doors for the time being after the store and its owners were flooded with ridicule and threats.


IIRC, we have a few forum members actually from Indiana, or are close enough to go to conventions there (GenCon). And their opinions have been voiced in the "Darker Side of the News" topic.

As for the latest news, as of today... Indiana leaders have announced that they're rolling back the law in some respects.

http://www.indystar.com/story/news/poli ... /70766920/

The details are still vague, as it seems like they might be adding homosexuals as a protected class. "Advance America", the group who lobbied for the bill originally claims that the new bill "destroys" the purpose of the original bill. Indiana leaders claim that they never intended for the bill to be pro-discrimination.

I believe the following is the text of the law, as originally signed by the Indiana Governor: https://iga.in.gov/legislative/2015/bills/senate/568 (someone double-check for me please)

Religious freedom restoration act. Provides that a state or local government action may not substantially burden a person's right to the exercise of religion unless it is demonstrated that applying the burden to the person's exercise of religion is: (1) essential to further a compelling governmental interest; and (2) the least restrictive means of furthering the compelling governmental interest. Provides that a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a state or local government action may assert the burden as a claim or defense in a judicial proceeding, regardless of whether the state or a political subdivision of the state is a party to the judicial proceeding. Allows a person who asserts a burden as a claim or defense to obtain appropriate relief, including: (1) injunctive relief; (2) declaratory relief; (3) compensatory damages; and (4) recovery of court costs and reasonable attorney's fees.
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Re: Indiana's "Religious Freedom" law

Postby Dauric » Thu Apr 02, 2015 4:47 pm UTC

NPR actually had a bit of interesting analysis on this law, in that there was the recent Supreme Court ruling that Hobby Lobby could deny medical coverage to employees based on the corporation being strongly religious. Indiana's law includes language that defines certain groups like businesses and churches in the category of "person", doubling-down on the Hobby Lobby decision (at least at the state level), so the law stretches from individual practices to practices of churches or corporations.

The Federal RFRA is also pretty specific about the injuring party being the government, Indiana's law makes it so anyone can sue anyone else under their RFRA almost without regard to affiliation.

---

I can't find a transcript for it, but NPR's Morning Edition interviewed one of the pastors that supported Indiana's RFRA, and I find it.... somewhere between hilarious and distressing... that his justification was a burger joint couldn't discriminate, but a florist or wedding cake company involved "Artistic expression" in their work, and that "Expression" was "Speech", and someone shouldn't have to use their "Speech" to support points of view they don't support, like gay marriage.
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Re: Indiana's "Religious Freedom" law

Postby Chen » Thu Apr 02, 2015 5:06 pm UTC

The Pizza store thing is both good and bad I think. It shows what damage a customer boycott can do, especially with social media. That said a lot of it was also threats which we probably shouldn't be condoning. The fact the place also got something like $50k from some GoFundMe thing is pretty disheartening as well (don't have a link to that handy saw when perusing the news this morning).

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Re: Indiana's "Religious Freedom" law

Postby Tirian » Thu Apr 02, 2015 5:33 pm UTC

Dauric wrote:I can't find a transcript for it, but NPR's Morning Edition interviewed one of the pastors that supported Indiana's RFRA, and I find it.... somewhere between hilarious and distressing... that his justification was a burger joint couldn't discriminate, but a florist or wedding cake company involved "Artistic expression" in their work, and that "Expression" was "Speech", and someone shouldn't have to use their "Speech" to support points of view they don't support, like gay marriage.


Somewhere in my reading list yesterday, I read of a baker who had that concern, except more eloquently that the pastor evidently said it. :P She claimed that it was an act of religious devotion when she made a wedding cake, and implied that she couldn't make a wedding cake without that passion nor could she apply that passion to a wedding that she did not recognize. Assuming that this woman is not also in the habit of making "secular" cakes with white frosting (and I don't know if she is), I found her argument compelling. This debate has been going on for many years now, but she was the first person who made me appreciate that perhaps there is a small group of people who deserve the freedom to run a purely religious private business in accordance with their spiritual values.

But not those pizza nutjobs. Yeesh. If a gay guy walked through their door and ordered a pizza, they'd serve him cheerfully, but they couldn't make a bulk delivery to a gay wedding because gayness is a choice? I don't even. I've worked in the pizza biz for many years on both coasts and have been to my share of weddings, but this is the first time I've heard of the illusion that someone would think of having a pizzeria cater a wedding. I think these are just two people who decided that they wanted to hang up their peels for a few years and join Joe the Plumber and Carrie Prejean and Phil Robertson on the conservative martyr lecture circuit.

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Re: Indiana's "Religious Freedom" law

Postby Tyndmyr » Thu Apr 02, 2015 6:20 pm UTC

KnightExemplar wrote:
Memories Pizza, the Walkerton, Ind. pizzeria that took a brave stand against delivering its pizza to gay weddings this week, is closing its doors for the time being after the store and its owners were flooded with ridicule and threats.


Ridicule is entirely fair. Threats are too far.

Way I see it, "I want to have a pizza place cater my wedding" has been said by roughly zero gay couples ever. They have taste. These folk assumed that this would cost them zero business, and get them free publicity, probably. 'course, not all publicity is good. So, they miscalculated, and nothing of value was lost.

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Re: Indiana's "Religious Freedom" law

Postby mathmannix » Thu Apr 02, 2015 7:09 pm UTC

Here's an article about the pizza place that isn't incredibly biased against them. And their gofundme has over $200,000 now.

Tyndmyr wrote:Way I see it, "I want to have a pizza place cater my wedding" has been said by roughly zero gay couples ever. They have taste. These folk assumed that this would cost them zero business, and get them free publicity, probably. 'course, not all publicity is good. So, they miscalculated, and nothing of value was lost.


You're right that the pizza place didn't reject a wedding catering job; I really hope nobody wants pizza for their wedding reception.

So then how did it come up? They didn't just call up the local TV station. No, they were ambushed by an ABC reporter, probably because they are known as a Christian establishment. Here's an article:
ABC-57 reporter Alyssa Marino’s editor sends her on a half-hour drive southwest of their South Bend studio, to the small town of Walkerton (Pop. ~2,300). According to Alyssa’s own account on Twitter, she “just walked into their shop [Memories Pizza] and asked how they feel” about Indiana’s new Religious Freedom Restoration Act.

Owner Crystal O’Connor says she’s in favor of it, noting that while anyone can eat in her family restaurant, if the business were asked to cater a gay wedding, they would not do it. It conflicts with their biblical beliefs. Alyssa’s tweet mentions that the O’Connors have “never been asked to cater a same-sex wedding.”
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Re: Indiana's "Religious Freedom" law

Postby speising » Thu Apr 02, 2015 7:16 pm UTC

I really fail to see how catering to a wedding can "burden a person's right to the exercise of religion" in any way. I mean, AFAIK, there's no sentence in the bible "Thou shall not feed gays".

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Re: Indiana's "Religious Freedom" law

Postby mathmannix » Thu Apr 02, 2015 7:20 pm UTC

They're not opposed to "feeding gays"; they say that explicitly. They are opposed to participating in a ceremony which they believe is supposed to be a holy union between God and a man and woman. And they have the right to believe that, and to not have to be a part of something which goes directly against their beliefs.
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Re: Indiana's "Religious Freedom" law

Postby Mighty Jalapeno » Thu Apr 02, 2015 7:24 pm UTC

I know Christians who define and practice their religion by loving and respecting all humans, which includes gays.
I know Christians who define and practice their religion by knowing that people who choose to be gay must try and renounce their wickedness so they can know God's love.

Same religion, diametrically opposed beliefs.

... therefore, would it not stand to reason that Christians could do anything, literally absolutely anything, and say that it is part of the practice and definition of their religion?

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Re: Indiana's "Religious Freedom" law

Postby sardia » Thu Apr 02, 2015 7:25 pm UTC

mathmannix wrote:They're not opposed to "feeding gays"; they say that explicitly. They are opposed to participating in a ceremony which they believe is supposed to be a holy union between God and a man and woman. And they have the right to believe that, and to not have to be a part of something which goes directly against their beliefs.

Didn't someone mention this only works because homosexuals aren't a protected class? You couldn't say "whites only", and people had all sorts of religious reasons for that.

Mighty Jalapeno wrote:I know Christians who define and practice their religion by loving and respecting all humans, which includes gays.
I know Christians who define and practice their religion by knowing that people who choose to be gay must try and renounce their wickedness so they can know God's love.

Same religion, diametrically opposed beliefs.

... therefore, would it not stand to reason that Christians could do anything, literally absolutely anything, and say that it is part of the practice and definition of their religion?


The thing is, the ones who "love everyone" don't have any impetus to hate on the ones who hate fags. So all we get are the spectrum of people who have varying opinions that don't amount to much, and then the loud mouths who get all the attention.

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Re: Indiana's "Religious Freedom" law

Postby Tirian » Thu Apr 02, 2015 7:29 pm UTC

mathmannix wrote:You're right that the pizza place didn't reject a wedding catering job; I really hope nobody wants pizza for their wedding reception.

So then how did it come up? They didn't just call up the local TV station. No, they were ambushed by an ABC reporter, probably because they are known as a Christian


Then I was uncharitable towards them, and I apologize for calling them nutjobs. I had assumed that they chose to be the first business in Indiana that openly declared their right to be discriminatory and further assumed that this whole fire was started by this Blaze radio network of Glen Beck's. The O'Connor's argument makes no sense, but I wouldn't be coherent either if an overeager journalist stuck a camera in my face and asked me a question that I hadn't fully thought out. Can't say I feel too bad for them though; their GoFundMe campaign has brought them more money in a day than you'd get in a year from running an independent pizzeria on a boarded-up Main Street in the middle of nowhere.

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Re: Indiana's "Religious Freedom" law

Postby speising » Thu Apr 02, 2015 7:30 pm UTC

sardia wrote:
mathmannix wrote:They're not opposed to "feeding gays"; they say that explicitly. They are opposed to participating in a ceremony which they believe is supposed to be a holy union between God and a man and woman. And they have the right to believe that, and to not have to be a part of something which goes directly against their beliefs.

Didn't someone mention this only works because homosexuals aren't a protected class? You couldn't say "whites only", and people had all sorts of religious reasons for that.

I don't see how the letter of the law as quoted above would exclude protected groups. It'd be interesting to see how the state reacts if someone comes up with a religious reason to not deal with people of colour.

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Re: Indiana's "Religious Freedom" law

Postby mathmannix » Thu Apr 02, 2015 7:31 pm UTC

Mighty Jalapeno wrote:I know Christians who define and practice their religion by loving and respecting all humans, which includes gays.
I know Christians who define and practice their religion by knowing that people who choose to be gay must try and renounce their wickedness so they can know God's love.

Same religion, diametrically opposed beliefs.

... therefore, would it not stand to reason that Christians could do anything, literally absolutely anything, and say that it is part of the practice and definition of their religion?

First off, I see no contradiction whatsoever between those two statements. You might have been implying some things about one or both that make them out to have opposing beliefs, but it's not in what you wrote.

Secondly, yes, there are obviously "Christians" (people who call themselves that, anyway) with irreconcilable beliefs. (The same is true with divisions among "Jews", or "Muslims".) Clearly, one or more of the groups have beliefs which are wrong. And one or more of the groups might not consider the others "true Christians." But, that doesn't mean that there isn't a single right answer, it just means that not everybody agrees on what it is.
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Re: Indiana's "Religious Freedom" law

Postby Mighty Jalapeno » Thu Apr 02, 2015 7:36 pm UTC

Well, to be more specific since the obvious meaning of my words got missed... there's ones who would ABSOLUTELY cater a gay wedding, because they know it's not a "choice", and the God of their religion loves and respects everyone, and there's ones who would ABSOLUTELY not cater a gay wedding, because they know it's an evil choice and the God of their religion hates people who make that choice.

Same religion, different practitioners, opposite beliefs, opposite actions. "Because religion" just seems to be a confusing metric by way of judging what actions are and are not protected.

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Re: Indiana's "Religious Freedom" law

Postby Dauric » Thu Apr 02, 2015 7:42 pm UTC

mathmannix wrote:They're not opposed to "feeding gays"; they say that explicitly. They are opposed to participating in a ceremony which they believe is supposed to be a holy union between God and a man and woman. And they have the right to believe that, and to not have to be a part of something which goes directly against their beliefs.


The problem is drawing the lines in a practical and legal sense.

My religious beliefs are a mix of atheist and agnostic with some Wiccan and Buddhist tendencies. Is it better or worse if said wedding-baker has a more 'elastic' morality when it comes to my (hypothetical) heterosexual non-christian wedding than they have towards a gay couple's wedding?

How 'elastic' can we consider someone's religious objections before we need to argue for more scrutiny over this defense?

How do we, or do we at all, draw a distinction between discrimination for genuine religious reasons and discrimination because 'Squicky ewww buttsexx!"?

Do we have signs in the windows of bakers that say "Caters Christian Weddings Only"? Is this more reminiscent of "Whites Only" in Jim Crow south (privileged only), or of "Scarlet Letters" (public shaming)?

It kind of boils down to "How much intolerance do we tolerate?"

The problem isn't so much the cultural landscape as it is the attempts to enshrine the answers to these questions in law.
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Re: Indiana's "Religious Freedom" law

Postby Tirian » Thu Apr 02, 2015 7:49 pm UTC

Mighty Jalapeno wrote:... therefore, would it not stand to reason that Christians could do anything, literally absolutely anything, and say that it is part of the practice and definition of their religion?


Probably. Can any belief be used in the defense of an RFRA lawsuit? The track record has not been good for conscientious vendors in these lawsuits up to now. That's why Indiana (and Arkansas and Georgia and more states yet to come) have tried this year to pass RFRAs that offer more leverage to the vendors, and it's also a big part of why there is a lot of new resistance to bills that used to be bipartisan and non-controversial.

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Re: Indiana's "Religious Freedom" law

Postby TheGrammarBolshevik » Thu Apr 02, 2015 7:50 pm UTC

speising wrote:I don't see how the letter of the law as quoted above would exclude protected groups.

Because the enforcement of nondiscrimination laws has consistently been held as a compelling government interest.

Mighty Jalapeno wrote:"Because religion" just seems to be a confusing metric by way of judging what actions are and are not protected.

What's confusing about it? Seems like you can easily sort through the examples that you give by considering the actual religious beliefs of the people involved. There's no need for there to be an official list of What Christians Believe to make that call.
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Re: Indiana's "Religious Freedom" law

Postby mathmannix » Thu Apr 02, 2015 7:57 pm UTC

Mighty Jalapeno wrote:Well, to be more specific since the obvious meaning of my words got missed... there's ones who would ABSOLUTELY cater a gay wedding, because they know it's not a "choice", and the God of their religion loves and respects everyone, and there's ones who would ABSOLUTELY not cater a gay wedding, because they know it's an evil choice and the God of their religion hates people who make that choice.

Same religion, different practitioners, opposite beliefs, opposite actions. "Because religion" just seems to be a confusing metric by way of judging what actions are and are not protected.

Okay, fine. Yes, those two takes are irreconcilable. Believing that being gay is [100%] "an evil choice" and that being gay is [100%] "not a choice" are irreconcilable, and there is no middle ground, and at least one of those opinions is wrong, by basic logic. Same for the second part, that either God loves everyone or that God hates some people. People with strong opinions are hard to convince in an argument, but there can be only one Truth.

Mighty Jalapeno wrote:... therefore, would it not stand to reason that Christians could do anything, literally absolutely anything, and say that it is part of the practice and definition of their religion?

Getting back to this statement of yours, yes, people, whether they claim to be Christians or Muslims or their own made-up religion with fifty members, could in theory espouse anything they wanted, and say they should be protected under this law. So, realistically, some things will not be protected... racial discrimination has been illegal since 1964, and murder illegal forever, so religions that claim their religion allows those things will not be tolerated.

If a law is passed, such as another Civil Rights Act, that prohibits discrimination based on sexual identity and/or preference (this will probably happen), then this RF law will be powerless against it. What it does, and I think it is still something, is protect religions and their beliefs in situations where no contradictory law has been passed.
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Re: Indiana's "Religious Freedom" law

Postby Mighty Jalapeno » Thu Apr 02, 2015 8:00 pm UTC

TheGrammarBolshevik wrote:
Mighty Jalapeno wrote:"Because religion" just seems to be a confusing metric by way of judging what actions are and are not protected.
What's confusing about it? Seems like you can easily sort through the examples that you give by considering the actual religious beliefs of the people involved. There's no need for there to be an official list of What Christians Believe to make that call.

"Pizza Place X" has refused to serve gays, and since they've gone on record as being against gay marriage, we can allow that. "Pizza Place Y" is also refusing to serve gays, but they have espoused the belief that they APPROVE of gay marriage... therefore they can safely be sued.

That just seems like a really weird (and unlikely) situation to require codified government legislation to clear up.

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Re: Indiana's "Religious Freedom" law

Postby speising » Thu Apr 02, 2015 8:02 pm UTC

Part of the problem is that christians can choose freely to pick from the bloody old testament, or the forgiving new one. ("An eye for an eye"/"the other cheek")

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Re: Indiana's "Religious Freedom" law

Postby Dauric » Thu Apr 02, 2015 8:02 pm UTC

TheGrammarBolshevik wrote:
Mighty Jalapeno wrote:"Because religion" just seems to be a confusing metric by way of judging what actions are and are not protected.

What's confusing about it? Seems like you can easily sort through the examples that you give by considering the actual religious beliefs of the people involved. There's no need for there to be an official list of What Christians Believe to make that call.


How far are we willing to allow the "Because God tells me to be a dick" defense?

To wit: Fred Phelps founded the Westborough Baptists pretty much out of his own family and a few others that agreed with him. Their beliefs are pretty abhorrent to other more mainstream baptist branches, but since Baptists don't have an overarching authority of who is and who isn't a baptist they can't be 'expelled' from the grouping of 'baptists'. They're as valid a branch of Christianity as any other no matter how abhorrent their openly stated and quite genuinely held beliefs are to others.

Can I say I have a personal religion that says I have to discriminate against intellectuals, or poor people, or gays, or blacks as long as I genuinely believe it in a spiritual way?

How do we separate genuine spiritual beliefs, religious dogma, and rationalized interpretation to achieve a specific goal?
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Re: Indiana's "Religious Freedom" law

Postby speising » Thu Apr 02, 2015 8:05 pm UTC

Also, what happens when the church of the rainbow's believe that a gay wedding absolutely requires pizza clash with the christian's?

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Re: Indiana's "Religious Freedom" law

Postby Mighty Jalapeno » Thu Apr 02, 2015 8:06 pm UTC

Dauric wrote:How do we separate genuine spiritual beliefs, religious dogma, and rationalized interpretation to achieve a specific goal?

Spin them in a centrifuge at approximately 27,000 RPM. That generally does the trick.

And I guess that's what this is all about. The freedom (love that word) to worship as you choose (love that word, too, and it's being used correctly for once!)

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Re: Indiana's "Religious Freedom" law

Postby TheGrammarBolshevik » Thu Apr 02, 2015 8:15 pm UTC

Mighty Jalapeno wrote:"Pizza Place X" has refused to serve gays, and since they've gone on record as being against gay marriage, we can allow that. "Pizza Place Y" is also refusing to serve gays, but they have espoused the belief that they APPROVE of gay marriage... therefore they can safely be sued.

That just seems like a really weird (and unlikely) situation to require codified government legislation to clear up.

Well the point of the legislation is not to distinguish sincere from insincere objections, but rather to provide an exemption for people with sincere objections in the first place.

Dauric wrote:How far are we willing to allow the "Because God tells me to be a dick" defense?

As has been mentioned in this thread and in the law itself, the line comes at a compelling government interest. Same as a lot of other civil liberties stuff, about which there is at least half a century of case law. It's not like this is the first time we've had to figure out where to draw the line between one person's fist and another person's nose.

Dauric wrote:How do we separate genuine spiritual beliefs, religious dogma, and rationalized interpretation to achieve a specific goal?

Why do you see a need to separate those things? Lots of religious beliefs are dogmatic, but I don't see why that in itself is a reason not to protect them. Part of the point of protecting people's right to worship as they see fit is that it's worship as they see fit, not as the society around them decides is a reasonable way to do things. When the Free Exercise Clause guarantees the free exercise of religion, we don't see a need to "separate genuine spiritual beliefs [from] religious dogma," as if we should all take a vote on whether Catholicism is a real religion or an idolatrous Papal conspiracy.
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Re: Indiana's "Religious Freedom" law

Postby Tirian » Thu Apr 02, 2015 8:31 pm UTC

TheGrammarBolshevik wrote:What's confusing about it? Seems like you can easily sort through the examples that you give by considering the actual religious beliefs of the people involved. There's no need for there to be an official list of What Christians Believe to make that call.


It wouldn't hurt and might help, though. I mean, you can't opt out of the individual mandate of The Affordable Care Act "because religion", but there are religious exemptions in the law for the Amish and a few other specific faiths that have a very public and communal and scripturally referenced rejection of insurance. So if the Southern Baptists (or whoever) wanted to pass a resolution saying that it was forbidden for Southern Baptists to facilitate or be present at any same-sex wedding ceremony, that would certainly strengthen the legal claims of their florists and photographers. The fact that they have not passed such a resolution should similarly tend to indicate that it is not a communal religious tenet of Southern Baptists, which should correspondingly weaken their legal claims.

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Re: Indiana's "Religious Freedom" law

Postby Dauric » Thu Apr 02, 2015 8:39 pm UTC

TheGrammarBolshevik wrote:
Dauric wrote:How far are we willing to allow the "Because God tells me to be a dick" defense?

As has been mentioned in this thread and in the law itself, the line comes at a compelling government interest. Same as a lot of other civil liberties stuff, about which there is at least half a century of case law. It's not like this is the first time we've had to figure out where to draw the line between one person's fist and another person's nose.


The problem is that these laws 'muddy the waters' of those existing case laws.

In general it's been determined that you can't deny service to a group for pretty much any passive reason, IE: if they're being disruptive or destructive in or near your establishment you can kick/keep them out, but you can't deny service to someone for being black, gay, or Belgian. The former being something they are doing, the latter being something that they are.

"Protected Status" is a bit of a legal weirdness, if Belgians were routinely discriminated against there would be petitions to make them a protected group because of the discrimination. It's more of a patch to a loophole than basic intent.

Now we're saying that there's states of being (religion) that allow for discrimination to people with other states of being (sexuality). I personally think it's reasonable to have something to say about the drawing of a new line, rather than say "Leave it up to the lawyers to sort it out, they've done such a sterling job in the past."*

*<sarcasm> tags optional.

The other point of note about these new RFRA laws is that where prior RFRA laws explicitly state that the Government (federal, state or local) must be a participant in the dispute, Indiana and Arkansas RFRA laws explicitly state that any two parties (all of them defined as "persons") may be at dispute and claim RFRA protections. This muddies the 'Compelling Government Interest' requirement as it pertains to RFRA legislation.
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Re: Indiana's "Religious Freedom" law

Postby sardia » Thu Apr 02, 2015 8:50 pm UTC

Dauric wrote:
TheGrammarBolshevik wrote:
Dauric wrote:How far are we willing to allow the "Because God tells me to be a dick" defense?

As has been mentioned in this thread and in the law itself, the line comes at a compelling government interest. Same as a lot of other civil liberties stuff, about which there is at least half a century of case law. It's not like this is the first time we've had to figure out where to draw the line between one person's fist and another person's nose.


The problem is that these laws 'muddy the waters' of those existing case laws.

In general it's been determined that you can't deny service to a group for pretty much any passive reason, IE: if they're being disruptive or destructive in or near your establishment you can kick/keep them out, but you can't deny service to someone for being black, gay, or Belgian. The former being something they are doing, the latter being something that they are.

"Protected Status" is a bit of a legal weirdness, if Belgians were routinely discriminated against there would be petitions to make them a protected group because of the discrimination. It's more of a patch to a loophole than basic intent.

Now we're saying that there's states of being (religion) that allow for discrimination to people with other states of being (sexuality). I personally think it's reasonable to have something to say about the drawing of a new line, rather than say "Leave it up to the lawyers to sort it out, they've done such a sterling job in the past."*

*<sarcasm> tags optional.

The other point of note about these new RFRA laws is that where prior RFRA laws explicitly state that the Government (federal, state or local) must be a participant in the dispute, Indiana and Arkansas RFRA laws explicitly state that any two parties (all of them defined as "persons") may be at dispute and claim RFRA protections. This muddies the 'Compelling Government Interest' requirement as it pertains to RFRA legislation.

In addition to what you said, the law also has some crucial differences compared to the Federal law. It raises the importance of religious freedom by saying it is more important than any other concern, it has a very broad definition of "person" (including churches and corporations that aren't closely held). The exclusion of "closely held" matters in that it would include massive corporations like Chase or Walmart, while the SCOTUS definition would be more mom N pop operations (which was already being stretched by including hobby lobby).
Let's not forget the political intentions behind the scene, the GOP was hoping for a freebie from their base, but didn't calculate the backlash from the business sector. Now they're caught between their two bases and have to hedge against both.

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Re: Indiana's "Religious Freedom" law

Postby TheGrammarBolshevik » Thu Apr 02, 2015 8:52 pm UTC

Dauric wrote:The problem is that these laws 'muddy the waters' of those existing case laws. [stuff about nondiscrimination laws]

The case law that I am talking about is case law about what constitutes a compelling government interest. The (inaccurate) summary you give of nondiscrimination statutes (not case law) is inapposite; the compelling government interest standard isn't even an element of nondiscrimination statutes.

Dauric wrote:The other point of note about these new RFRA laws is that where prior RFRA laws explicitly state that the Government (federal, state or local) must be a participant in the dispute, Indiana and Arkansas RFRA laws explicitly state that any two parties (all of them defined as "persons") may be at dispute and claim RFRA protections. This muddies the 'Compelling Government Interest' requirement as it pertains to RFRA legislation.

How does it muddy the compelling government interest standard? I'd like to see the argument, not some hand-waving about how this or that is going to muddy the legal waters.

sardia wrote:It raises the importance of religious freedom by saying it is more important than any other concern

It does not, but, to the contrary, allows that religious freedom can be trumped by a compelling government interest.
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Re: Indiana's "Religious Freedom" law

Postby sardia » Thu Apr 02, 2015 10:11 pm UTC

TheGrammarBolshevik wrote:
Dauric wrote:The problem is that these laws 'muddy the waters' of those existing case laws. [stuff about nondiscrimination laws]

The case law that I am talking about is case law about what constitutes a compelling government interest. The (inaccurate) summary you give of nondiscrimination statutes (not case law) is inapposite; the compelling government interest standard isn't even an element of nondiscrimination statutes.

Dauric wrote:The other point of note about these new RFRA laws is that where prior RFRA laws explicitly state that the Government (federal, state or local) must be a participant in the dispute, Indiana and Arkansas RFRA laws explicitly state that any two parties (all of them defined as "persons") may be at dispute and claim RFRA protections. This muddies the 'Compelling Government Interest' requirement as it pertains to RFRA legislation.

How does it muddy the compelling government interest standard? I'd like to see the argument, not some hand-waving about how this or that is going to muddy the legal waters.

sardia wrote:It raises the importance of religious freedom by saying it is more important than any other concern

It does not, but, to the contrary, allows that religious freedom can be trumped by a compelling government interest.

Prove me wrong.
http://www.indystar.com/story/news/poli ... /70539772/
SECTION1.IC34-13-9 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:
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.


http://www.npr.org/2015/04/01/396871391 ... her-states
It's the most extreme state law I've ever seen. It doesn't say at the top, a bill to direct courts to allow discrimination, but it does almost everything else. It has a section that says that protection of religious freedom is the highest interest in Arkansas law, which means there's no interest in a civil rights statute that could overcome a religious objection. ~~Garrett Epps who teaches law at the University of Baltimore

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Last edited by sardia on Fri Apr 03, 2015 12:34 am UTC, edited 2 times in total.

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Re: Indiana's "Religious Freedom" law

Postby KrytenKoro » Thu Apr 02, 2015 10:25 pm UTC

Thank you, sardia.
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Re: Indiana's "Religious Freedom" law

Postby TheGrammarBolshevik » Thu Apr 02, 2015 10:45 pm UTC

sardia, I don't know what you're asking me to do. You yourself quoted the summary of the bill, which says that a compelling government interest trumps religious freedom:
Provides that a state or local government action may not substantially burden a person's right to the exercise of religion unless it is demonstrated that applying the burden to the person's exercise of religion is: (1) essential to further a compelling governmental interest; and (2) the least restrictive means of furthering the compelling governmental interest.

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Re: Indiana's "Religious Freedom" law

Postby sardia » Fri Apr 03, 2015 12:22 am UTC

I'm asking you to bring a judge, law professor, or case to the table. Unless you're one of those above, you're interpretation is worthless.

BTW, I updated the link to include the full text. The original was too clean.

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Re: Indiana's "Religious Freedom" law

Postby TheGrammarBolshevik » Fri Apr 03, 2015 12:53 am UTC

Sorry, why are you copying and pasting the text of the law if you won't accept the text of the law as evidence for what the law says?

I'll tell you what. Since I won't accept a law professor's remarks about a bill in Arkansas as decisive evidence about the contents of a law in Indiana, and you won't accept the contents of a law in Indiana as decisive evidence about the contents of a law in Indiana, we can let other people reading and participating in this thread read the law for themselves, and make a choice. On the one hand, they could take what some law professor has said about an Arkansas bill as decisive evidence for a claim that you've made about a law in Indiana. On the other hand, they could note that the text of the Indiana law (and, for that matter, the Arkansas bill) in fact says nothing about religious freedom being most important concern, but rather places explicit limitations on the legal significance of religious freedom, which I have quoted in some places above. In that case they could conclude that it is false to say that the law "raises the importance of religious freedom by saying it is more important than any other concern."

Then we can split the rest of the discussion along party lines. If people accept that a law professor talking about a bill in Arkansas settles the contents of a law in Indiana, then you can appeal to what a law professor said about a bill in Arkansas to try to persuade those people of further claims about the law in Indiana. If people accept that the contents of a law in Indiana settle the contents of a law in Indiana, then I can appeal to the contents of a law in Indiana to try persuade those people of further claims about the law in Indiana. We may not be able to persuade each other, but we can at least make some progress with those people with whom we each have common ground.

Does that sound fair?
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Re: Indiana's "Religious Freedom" law

Postby KrytenKoro » Fri Apr 03, 2015 1:43 am UTC

TheGrammarBolshevik wrote:Sorry, why are you copying and pasting the text of the law if you won't accept the text of the law as evidence for what the law says?

I'll tell you what. Since I won't accept a law professor's remarks about a bill in Arkansas as decisive evidence about the contents of a law in Indiana, and you won't accept the contents of a law in Indiana as decisive evidence about the contents of a law in Indiana, we can let other people reading and participating in this thread read the law for themselves, and make a choice. On the one hand, they could take what some law professor has said about an Arkansas bill as decisive evidence for a claim that you've made about a law in Indiana. On the other hand, they could note that the text of the Indiana law (and, for that matter, the Arkansas bill) in fact says nothing about religious freedom being most important concern, but rather places explicit limitations on the legal significance of religious freedom, which I have quoted in some places above. In that case they could conclude that it is false to say that the law "raises the importance of religious freedom by saying it is more important than any other concern."

Then we can split the rest of the discussion along party lines. If people accept that a law professor talking about a bill in Arkansas settles the contents of a law in Indiana, then you can appeal to what a law professor said about a bill in Arkansas to try to persuade those people of further claims about the law in Indiana. If people accept that the contents of a law in Indiana settle the contents of a law in Indiana, then I can appeal to the contents of a law in Indiana to try persuade those people of further claims about the law in Indiana. We may not be able to persuade each other, but we can at least make some progress with those people with whom we each have common ground.

Does that sound fair?

Wait, so you're saying that refusing to lend credence to an expert opinion on how an identical law would work is equivalent to refusing to lend credence to a layman's opinion, neglecting legal context, on how the law would work?
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Re: Indiana's "Religious Freedom" law

Postby TheGrammarBolshevik » Fri Apr 03, 2015 1:52 am UTC

I'm not asking you to listen to a layman's opinion. I'm asking you to actually read the law and see if it says what sardia says that it says. It's not like the thing is written in Klingon.

And, let's be clear, the laws are not identical. That is why I don't put much weight on what a law professor says about the text of an Arkansas bill when I am trying to figure out the text of an Indiana law.
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Re: Indiana's "Religious Freedom" law

Postby idonno » Fri Apr 03, 2015 4:19 am UTC

I have been lured out of lurking to respond to this. I am not a lawyer and do not work for a law firm but my line of work does often involve reading, interpreting, and applying certain parts of Indiana legal code so while I'm far from a master I wouldn't consider myself a novice at this.

While Sardia's interpretation is over the top. I believe the reference is to "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."
This does place this bill as an override on all other bills that do not specifically exclude it. That means this bill is as of now applied to all current law and therefore the "highest interest". It could and most likely will change as time goes on.
However as TheGrammarBolshevik pointed out, the bill itself clearly does not place religion as the "highest interest" because it has this overriding exception "(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;" which places compelling government interests above religious freedoms. I hate statements like this because "compelling government interest" isn't exactly a clear and decisive metric for someone to measure their compliance with a law.

I would like to point out that the barbs of this bill aren't exactly one sided. For example, suppose a trans person asserts both their specific gender and a religious conviction against using the other genders restrooms. Unless a compelling interest can be demonstrated public restrooms in all government buildings have to accommodate this belief and they can pass no laws forcing private entities to violate this belief. I believe this would prevent legal prosecution for violations in private establishments since the bill forbids the government to restrict this exercise of religious freedom (they could pass a bull specifically excluding this clause but that would be a change to current law and current law can always change to screw a specific side over). I believe an establishment is still free to discriminate and throw out those who break its rules.

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Re: Indiana's "Religious Freedom" law

Postby KnightExemplar » Fri Apr 03, 2015 2:40 pm UTC

KrytenKoro wrote:Wait, so you're saying that refusing to lend credence to an expert opinion on how an identical law would work is equivalent to refusing to lend credence to a layman's opinion, neglecting legal context, on how the law would work?


Its not an identical law. Even IF the text were the same (which it isn't), then the judges in Indiana would interpret the corner cases of the law differently than a judge in Arkansas. We have the law right here, in this topic. So lets discuss the Indiana law.
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Re: Indiana's "Religious Freedom" law

Postby KrytenKoro » Fri Apr 03, 2015 2:50 pm UTC

idonno wrote:However as TheGrammarBolshevik pointed out, the bill itself clearly does not place religion as the "highest interest" because it has this overriding exception "(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;" which places compelling government interests above religious freedoms. I hate statements like this because "compelling government interest" isn't exactly a clear and decisive metric for someone to measure their compliance with a law.

A lay reading of that section, to me, seems like the government would have had to explicitly justify why a specific burden is the least burdensome way to ensure non-discrimination in order for it to be applicable, which would suggest to me that the government would have to spend a lot of time actually stating that so-and-so practice was not okay before it could actually be punished. There may already be plenty of precedent to deal with this, so is this interpretation at all accurate?

Even the new, non-discrimination language of the bill sounds like it excludes churches and religious institutions from being included in the "no discrimination language", which seems to mean that a church soup kitchen could legally refuse to serve an LGBT homeless person.

I would like to point out that the barbs of this bill aren't exactly one sided. For example, suppose a trans person asserts both their specific gender and a religious conviction against using the other genders restrooms. Unless a compelling interest can be demonstrated public restrooms in all government buildings have to accommodate this belief and they can pass no laws forcing private entities to violate this belief. I believe this would prevent legal prosecution for violations in private establishments since the bill forbids the government to restrict this exercise of religious freedom (they could pass a bull specifically excluding this clause but that would be a change to current law and current law can always change to screw a specific side over). I believe an establishment is still free to discriminate and throw out those who break its rules.

If the establishment is still free to throw out those who break its rules, how exactly would the trans person be able to assert their right to use the other gender's restroom? Government buildings, sure, but those are not everywhere and when you gotta go, you gotta go.

Its not an identical law. Even IF the text were the same (which it isn't), then the judges in Indiana would interpret the corner cases of the law differently than a judge in Arkansas. We have the law right here, in this topic. So lets discuss the Indiana law.

Plenty of portions of the law are identical in function, at least as far as our lay opinions would be able to interpret.

I just don't get why a few very minor changes in wording and context are able to justify completely disregarding any guidance by an expert opinion, in favor of interpreting the law however we feel like without any of the context. It would seem to me that "get an expert opinion that is focused even more on this context" would be the preferable option.
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Re: Indiana's "Religious Freedom" law

Postby Tirian » Fri Apr 03, 2015 3:58 pm UTC

KrytenKoro wrote:Even the new, non-discrimination language of the bill sounds like it excludes churches and religious institutions from being included in the "no discrimination language", which seems to mean that a church soup kitchen could legally refuse to serve an LGBT homeless person.


This is pretty standard language, and it seems appropriate to me. Without it, you could have women suing in civilian court for the right to be ordained as Catholic priests. As progressive as that would be, it is utterly unconstitutional.

And yes, it means that other people's charity can be dispensed in a manner that doesn't meet your approval.

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Re: Indiana's "Religious Freedom" law

Postby idonno » Fri Apr 03, 2015 6:15 pm UTC

KrytenKoro wrote:A lay reading of that section, to me, seems like the government would have had to explicitly justify why a specific burden is the least burdensome way to ensure non-discrimination in order for it to be applicable, which would suggest to me that the government would have to spend a lot of time actually stating that so-and-so practice was not okay before it could actually be punished. There may already be plenty of precedent to deal with this, so is this interpretation at all accurate?


" 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:" would indicate that both parties are presenting a legal argument after the fact so while a court case would probably require a lot of work in order to prove the government interest. laws can certainly be enforced under that language until someone litigates it. I'm guessing the effort required and the outcome reached would be pretty judge dependent (I did mention that I don't like laws with such unclear measures). The work I do isn't likely to ever involve litigation so I wouldn't trust my interpretation of how the litigation would function as anything greater than a layman's interpretation.

KrytenKoro wrote:If the establishment is still free to throw out those who break its rules, how exactly would the trans person be able to assert their right to use the other gender's restroom? Government buildings, sure, but those are not everywhere and when you gotta go, you gotta go.
I doubt that anyone is going to want to throw someone out in the midst of using the toilet and not facing legal consequences after the fact seems like a major boon. School situations are probably where this would be the most impactful though. I personally feel like a school situation is a much bigger deal because as adults people have much more ability to adjust their behavior (it might suck but we can do it) whereas a child is forced to be on school grounds for a significant percentage of their time without any recourse whatsoever. I'm not saying that this would actually wind up being more positive than negative but it isn't all one sided and actual repercussions are hard to get a handle on. In general something like this is going to help minorities more than majorities because society already conforms more to the majorities desire so it is really an issue of whether or not the impact of the asshole minorities usage of this law outweighs the impact of the oppressed minorities usage.

KrytenKoro wrote:Its not an identical law. Even IF the text were the same (which it isn't), then the judges in Indiana would interpret the corner cases of the law differently than a judge in Arkansas. We have the law right here, in this topic. So lets discuss the Indiana law.
It also is modifying Indiana legal code and subject to interpretation under Indiana's constitution and with relation to Indiana's current legal code. This is different from Arkansas legal code and constitution which means it is possible that identical judges could find differently for a case based on the state they are presiding in.


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