Indiana Religious Freedom Law

Parent Cafe
1

Can we - not getting political here - discuss the Indiana religious freedom law? I confess I’ve only followed part of it and there’s a lot of conflicting info online.

Does it enable people to discriminate against specific people for no reason other than sexual orientation (I won’t bake a cake, even one that just says happy birthday, for a gay person – which seems similar to - I won’t seat black people at my lunch counter or I won’t rent to blacks)

Or does it have to do with not being forced to participate in content (it’s not that I won’t bake a cake for a gay person if you come in my store - but I won’t bake a cake that celebrates a same-sex marriage - similar to how I won’t bake a cake that has a swastika on it, or I won’t do marketing for a tobacco company).

I’m interested particularly in the lawyers here explaining the issues to me. I really appreciate the lawyers on here esp those who specialize in constitutional law and interpretations. Hoping this can remain non-political - just trying to understand the issue, not take sides on whether it’s good or bad per se.

2

I am not sure it matters what the law does because the public seems to have spoken and the economic market place is going to be negatively impacted unless they make clear that no one group was targeted.

Seems the business people of Indiana think the law is clear in its intent.

3

The law differs from other laws in 2 ways but the main one is this part of Section 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.” Other laws don’t include the last clause beginning with regardless. (I’ve read only 1, the one in Texas, has similar language and the other 18 don’t.) Without that clause, it clearly requires some action by the government to require a business to act against its religious conscience. With the clause, it may mean a business can decide on its own that its religious scruples will be “substantially burdened” and may assert that if sued for discrimination.

This said, I’m not sure the law says what it may say. I know I’m being ambiguous but the law is clearly about action by some government entity and the right of a business to assert a religious defense against that imposition. I’d say the law is more a complete mess than a clear invitation to businesses to discriminate. And that said, it could certainly be read in the worst possible way: you decide not to serve customers you think are gay - any business at all - and you get sued and you assert as a defense this religious freedom argument. You get there by bootstrapping Section 8, which says that “a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability” so if a business gets sued and the state tries to intervene then the idea that service is discriminatory is “a rule of general applicability”. I’m not sure how it applies if the government doesn’t get involved because the statute is bluntly about a religious objection to government imposed rules.

My guess is that some of the people involved intended to create as big a hole as possible, one that does allow private businesses to discriminate and avoid legal judgements, but that others may well have thought this law was just about a religious exemption claim against government rules.

4

This isn’t helping. I’m asking to go back to square one and take it from the top.

Do I have a right to discriminate against specific people? (I won’t sell my cakes to gay people, or to Jews, or blacks, or whatever) If so, what basis am I “allowed” to use to discriminate against them?

Do I have a right to tailor my business to not offer certain things? (I will sell a cake to a gay person, but I won’t sell one that says “Happy gay marriage” on the front - I won’t sell that to a straight person either, so it’s the content, not the person)

5

http://www.theatlantic.com/politics/archive/2015/03/what-makes-indianas-religious-freedom-law-different/388997/

6

From the Atlantic article:

So you would have the right to discriminate against certain people if your religion allowed it. The law makes it difficult for anyone to sue you for that discrimination. Content and person.

7

So a corporation could decide something was against its (corporate) religion, without it even being strictly aligned with a particular church?

What if there’s a Rastafarian corporation?

8

I don’t understand how this Indiana law got passed. It seems to make it legal for folks to discriminate in terms of providing services to others.

I applaud my state (CT) for being the first to prohibit state funded travel to Indiana. And I applaud the larger businesses who are standing up and being counted.

I just don’t understand how this happened in a country that is supposedly anti-discrimination.

9
10

It’s really been amazing to me to watch civil rights for LGBTQ people expand and expand, especially after Prop 8 seemed like such a set back only 7 years or so ago. This Indiana thing is like the death throes of a cockroach.

11

“So you would have the right to discriminate against certain people if your religion allowed it.”

So is the relevant question - if I refuse to bake the cake saying “Happy gay marriage”, is that discrimination against people or is that my choice to run the business the way I want to? (For example, it’s not “discrimination” if I own a Christian bookstore and choose not to sell the Koran; it’s not “discrimination” if I own a paper company and refuse to sell paper to a porn magazine publisher, right?)

There are a lot of legal concepts, and I’m asking for the lawyers to go slowly and start from the beginning.

12

I don’t know all that much about the content , but I doubt this thread will be able to not get dragged into the political aspect.
The comments I have heard from both sides liken it to being forced to sit at the " back of the bus ", to being compared to laws that Clinton signed into law in 1993.

13

I’ve been confused about this for days and would love someone to explain it to me. And after listening to the Governor try to explain it I’m just more confused. How is it not discrimination to be allowed to not serve certain people if you don’t want to? He point blank refused to answer George Stephanopoulos when asked that question repeatedly. Every time George asked “would this law allow them to refuse to serve someone”, the Governor answered “that’s not what the law is about” but refused to explain just what the law WAS about. I don’t think this is about politics, it’s about understanding what they are hoping to accomplish if not being allowed to refuse service to someone they don’t like.

And what changes to this law that they are considering could possibly make it okay? It either allows people to discriminate or it doesn’t.

14

Well said Greenwitch!

For the life of me I cannot figure out why legislatures keep stepping in this ****.

They are already scrambling to find a fix because of the backlash (conventions canceling. Bands canceling concerts, etc. )

15

“For example, it’s not “discrimination” if I own a Christian bookstore and choose not to sell the Koran; it’s not “discrimination” if I own a paper company and refuse to sell paper to a porn magazine publisher, right?”

I think those are two different ideas at work. A Christian bookstore can decline to stock the Koran but what they cannot do is refuse to sell bibles to, well, anyone regardless of religion. With the paper company, if they sell paper to the general public, I would think a porn mag would be included in the general public.

Not a lawyer. Clearly.

16

That’s why I keep asking for the LAWYERS to come in and explain the issues here, instead of all the “I’m just not sure” posts upthread by the non-lawyers. I’m asking nicely :slight_smile:

17

@hunt? @hanna? @jhs?

18

@AttorneyMother‌ ? @nottelling‌ ?

19

Pizzagirl. Your questions sound like a law school exam. :slight_smile:

Also, just so you know, I find the law offensive, but that is not legally binding. It does remind me of a situation 20+ years ago when I was shopping for my wedding dress. The boutique owner said that she had to close her store one day so that a man could come in and try on a wedding dress. She wasn’t thrilled, but I think she relented because she could not resist a sale. Anyway…

I’m certainly not an expert in this area of law. But, here’s how I’d start.

Caveat: I haven’t read the IN statute and have no interest in doing so. But one would start there and look at the legislative history to see what “intent” Indiana lawmakers claim as basis for the exercise of their legislative power. Legislative power originates from the state constitution, so that’s the starting place to see where there might be some basis for a challenge to the law.

My immediate and very general thoughts:

(1) A private businessperson has the right to do anything with his property unless the commercial activity is in contravention of some law. We have free enterprise unless there is a prohibition (big can of worms which we’ll leave closed for now). “I own a shop. I cannot be forced to do what is against my beliefs.” We know the law prohibits me from refusing service to people on the basis of race (violation of Federal equal protection laws). But I can refuse service to people if they come in shirtless or shoeless (permitted by local health and safety laws).

(2) If my business practice is offensive to some interest, and there is enough public support, a law gets passed. Let’s call that another “prohibition.” So, I refuse to bake a cake for you that celebrates something I do not agree with religiously. I claim I am expressing my religious beliefs. Does that fly? Indiana says yes.

(3) Is that a state law (a) in violation of the U.S. Constitution, i.e., it violates some fundamental right of others that is also or already protected (free speech, privacy rights, equal protection, etc.) or (b) that runs afoul of Federal preemptive prohibitions (like regulations of accommodations because Congress can regulate interstate commerce)?

I hope the ACLU starts looking into the law.

But, for now, try economic sanctions.

20

Remember another cake case several years ago? A grocery store refused to write “Happy Birthday Adolf Hitler” on a birthday cake. The parents were neo-Nazis and that was the kids’ name. I don’t know if a lawsuit was filed or not but there was considerable publicity about it.

I don’t see how decorating a cake is really an endorsement of anything. It’s writing what the customer wants not the cake decorator’s beliefs.