Thank you, AtrorneyMother! And sorry for bringing back the painful memories of those law school exams. 
My bosses always shiver when reminded about them (they have not taken chrystallography and quantum chemistry, I guess. )
@TatinG
I see it this way. You come into my bakery asking for a cake decoration I find offensive, I can turn you down. I’m a private business owner. Doesn’t matter if it is because I don’t want to do it for a neo-Nazi or a gay couple. IN law tries to bolsters my protection if it happens to be ALSO because I claim it’s based on my religion because the law claims that it is protecting my right to exercise my religion.
I really don’t want to read the IN statute to see what it says.
For those interested, here it is:
https://iga.in.gov/legislative/2015/bills/senate/568#digest-heading
How is this different from the sign “We reserve the right to refuse service to anyone” in restaurants (at least in California)?
Yes. Economic sanctions. It’s a shame that this is happening to everyone, when there are some who do not support this new legislation at all.
I believe Indiana is going to take a hard hit economically from this…a hard lesson to learn.
Didn’t something similar happen in Arizona? The convention industry took a huge hit for a few years.
“You come into my bakery asking for a cake decoration I find offensive, I can turn you down. I’m a private business owner. Doesn’t matter if it is because I don’t want to do it for a neo-Nazi or a gay couple.”
Thanks - I’m trying to get into the distinction between “I don’t want to serve YOU because of who YOU are” (gay, black, whatever) and “I don’t want to use my business talents to create / promote something I don’t approve of.”
And I’m trying to understand why religion gets a special card as opposed to “something I strongly believe.” If (theoretically) I strongly believe that gay marriage is a bad thing, why is it more “special” if I say that’s my religious belief versus just a belief I hold strongly?
I think that the law is disingenuous and tries to take advantage of a protected right (freedom of my right to exercise my religion) as a shield against a practice might otherwise be unlawful (discrimination against sexual orientation).
@BunsenBurner
If only this were law school and an academic discussion. TBH, there are many instances when someone comes in and says, “I don’t like this” and lawyers have to start approaching the problem like they are back in law school, i.e., start actually analyzing things from scratch. I’m very rusty in these areas.
Hi – Interesting question. Still at the office preparing for hearing tomorrow; will read all this and weigh in when I get a chance.
The IN law is based on a Federal law:
One of the firms I worked for as a summer associate did pro bono work on the Native American case involving peyote. It’s a small world.
The ACLU already has said the law on its face is constitutional. Kind of impossible to say otherwise given a federal law with nearly identical language.
The question that is relevant is how is this law any different than the federal law - the Religious Freedom Restoration Act of 1993, if any. The IN law seems simply to be a restatement of the federal law to make the statue part of IN state law.
This is the relevant part of the IN law that I see:
The above from the IN law seems to be pretty much same as the Religious Freedom Restoration Act of 1993.
This really seems like a fabricated social discussion about what IN passed, not legal one, because the current federal law already affirms the IN law’s language, and the Supreme Court reaffirmed the federal law from 1993 in the Hobby Lobby case, i.e., the Supreme Court in Hobby Lobby reaffirmed the same language, as in the IN law.
This article, already posted by @prefect, does a pretty good job explaining how the Indiana law is different from the 1993 federal law.
@awcntdb
You have obviously given a great deal of thought to this matter. However, I’m not sure why you think that an analysis of the / a law should be divorced from its social context. It’s a rhetorical question, not aimed in particular at you, but you brought it up.
I haven’t read the whole thread, or studied the Indiana law, or thought abt all the different circumstances the relatively similar federal law would apply to after the S. Ct.'s Hobby Lobby decision, which basically held that a federal reg requiring employers to cover contraceptives under certain circumstances could not be applied against corporations that claimed a sincerely held religious belief against contraceptives. The decision was a sea change in the law (a corp can have religious beliefs?) and its implications are not clear. However, I thought it would be useful to provide answers to a few of PG’s questions, which may have already been snswered. (Im too tired to wade thru this whole thread.)
- Discrimination against certain protected classes of people is illegal in "public accommodations," ie private businesses open to the public, and in employment, housing and other arenas. This is a matter of statute, not constitutional law. (The constitution prevents discrimination by government actors).
- First question that PG's question poses is whether federal or state statutes prohibit discrimination against the particular class of people at issue. Federal law prohibits discrim on the basis of race, sex and other protected classes. In employment context, EEOC has interpreted those laws to prohibit discrim on basis of sexual orientation or transgendered status as discrim on the basis of sex. Im not sure what the status of court challenges to the EEOC's conclusions on this point are. Many states expressly bar discrim on the basis of sexual orientation in employment or public accommodations.
- If not banned by law, you are free to discrim against whomever you want. You can discriminate against ugly people, for example (so long as you dont run afoul of protection for disabled, etc.)
- As a matter of constitutional law, your right to free exercise of religion does not trump laws of general applicability. (Ie native americans dont have constitutional right to use peyote).
- As a corrective to those free exercise decisions, congress passed religious freedom statute that basically said that the government cannot impose on a particular individual's right to exercise their religion unless the government entity has a compelling interest and the government action in question is the least restrictive means to accomplish that compelling interest.
- People thought this meant there might be an exception to laws of general applicability -- "no peyote' -- for bona fide religious practices.
- Hobby Lobby interpreted this law incredibly broadly, holding that certain corporations have a right to free exercise. Also, Hobby Lobby suggested that one person's religious views could trump another person's right to be free from discrim in some circumstances. That's the very controversial aspect of the decision.
- It is unclear what this means in some if the hypotheticals PG posed. I promise you that the law does not mean that diners can refuse to serve African Ams on the basis of some so-called religious belief. The government's interest in preventing such discrimination is OVERWHELMING and there is no less restrictive means available to protect that basic interest in human dignity.
- I would hope that the same reasoning would apply to discrim against gays, lesbians and transgendered people but that is not clear. It is not even clear whether discrim against LGBTQ people is illegal in all contexts (which, remember, is step one in the analysis).
- To the extent Indiana's law is broader than the federal religious freedom law, and to the extent it runs afoul of federal anti-discrim laws, it most likely would be preempted by federal law.
- Clarence Thomas thinks that the federal gov't doesn't have the power to regulate small mom and pop businesses in any event, and he would overturn most of modern federal legislation (and 80 years or so of constitutional law allowing such regulation). So, with this Court, the issues become infinitely complex.
PS I’m a lawyer but I don’t practice law in this area and I’m not up on all the recent anti-discrim laws or decisions. The above analysis is based mainly on osmosis.
The question whether you can refuse to write stuff on cakes is even more complicated.
- Assume law bars discrim against a protected class of people, and that the customer in question is a member of that protected class.
- Next question is, is refusing to write the message really discrimination, if you are otherwise willing to serve them? That would be a highly specific question of fact for a jury (probably).
- If refusing to write the message does run afoul of federal anti-discrim laws, next question is whether requiring you to write the message violates your free speech rights under First Amendment. If it does, resolving that conflict involves all sorts of complex questions.
- If forcing you to write the message does not violate the first amendment, and if your refusal to do so is based on a sincerely held religious belief, finally we'd get to the federal freedom of religion statute.
Do courts ever get into examining how ‘sincerely held’ a religious belief is, or even into what can be considered a religious belief?
@notteling Thanks for your explanations. Appreciate the context throughout.
In Section 10 of your Post #31, you are saying the IN law is broader because it applies to persons and businesses, not just government. Correct?
Re your Post #33, is not the below the types of religious freedom the IN law is trying to head off at the pass, so to speak?
- I am Christian baker, and a Muslim walks in and asks for a cake that says, "There is only one prophet, Mohammed, and only one holy book, the Koran." I do not believe that at all and refuse to write that as it against my faith to promote such a message that I see as blasphemous. Exercise of religious freedom or discrimination against Muslims?
- I am Muslim baker, and a Christian person comes in for a cake and asks me to put a picture of Mohammed on a cake, as a part of a party with cakes with faces of famous people on them. I do not believe in such representations of Mohammed, and I refuse. Exercise of religious freedom or discrimination against Christians?
I really wish we had honesty behind the justification for passing the statute. It was not for the Muslim baker no matter how much they try to put this problem back in the box. This was a statute passed against one group of people.
To fix it pass a law protecting the rights of LGBT people. But as the gov says that is not on his agenda.
I don’t shop at Hobby Lobby, and I can’t see any reason why I would go to Indiana or purchase anything made there.
I don’t understand the need for their law…at all.
“Didn’t something similar happen in Arizona? The convention industry took a huge hit for a few years.”
Their legislature passed the law but the Guv vetoed it because the backlash from major businesses and large conventions threatened to boycott. It was right before the Super Bowl in Phoenix, iirc.
In a way, I hope the legislature doesn’t amend the law. I think it will be a good lesson in how actions have consequences.
They can pretend all the want the law doesn’t mean what it says but they aren’t fooling anyone.
continuing with @awcntdb theme:
-
As a person of Jewish faith, I am now required/compelled to bake cakes with the wording “Jesus is the Way, the Truth and the Light.”
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As an atheist, I am now required/compelled to provide photography services for baptisms and confirmations.
Yeah, @tom1944, “the one group only” theory is nice, but the devil is in the details.
@thumper1 you’ll have to add way more states to your list: http://www.washingtonpost.com/blogs/the-fix/wp/2015/03/27/19-states-that-have-religious-freedom-laws-like-indianas-that-no-one-is-boycotting/
@sorghum, that is an alarming thought on so many levels.