I believe those other states laws and the federal law are not the same.
“The problem with this statement is that, well, it’s false. That becomes clear when you read and compare those tedious state statutes. If you do that, you will find that the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.”
And:
“The new Indiana statute also contains this odd language: “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.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.”
I just heard on Morning Joe that 19 of the 20 States with similar laws that the law does not apply to a for profit business. So only SC is similar to Indiana.
So the argument that 20 States have similar laws is valid if you do not consider other laws those States have protecting LGBT’s or that the exemption of for profit businesses does not mean much.
Laws are not based on your opinion, but are based on what is written. Here is a link to the full text of the law. Please feel free to point out exactly where it mentions, implies, or even states LGBT.
I do see this as a fabricated, sheeple-driven discussion that gets people riled up, but really has nothing behind it at all. Great fund-raising tool, but no legal story here.
That was the entire point of the First Amendment - government cannot consider anything of the sort regarding religious beliefs. If government could consider, however remotely, then there would be effectively no First Amendment.
To me, this is a very interesting situation, because it involves the conflict of two very important principles: (1) the desire to prohibit discrimination in public accommodations and (2) the desire to protect the free exercise of religion. I don’t think we should pretend that these aren’t in conflict (for example) when the fundamentalist Christian wedding photographer is asked to work a same-sex wedding. And it’s an issue of viewpoint–from the point of view of the couple getting married, the photographer’s refusal is discrimination based on sexual orientation, while from the point of view of the photographer, his participation involves implied sanction of beliefs he doesn’t share. It’s an issue because there continue to be different points of view about same-sex marriage. If you picked more extreme examples of either point of view, the result would be more obvious. Thus, few of us would support a photographer who didn’t want to work at a wedding between a black man and a white woman, even if he belonged to a religion that believes that’s a sin. On the other hand, few of us would think that a photographer should be required to work at an Aryan Nation wedding that will include Nazi regalia. (I think PizzaGirl’s questions pick up on this tension.)
I confess I’m a bit squeamish about anti-discrimination laws in the first place. They definitely restrict the liberty of business owners, homeowners, etc. I think they have to be looked at very closely. They involve a bit of legal sleight of hand I typically don’t like–labeling something a privilege (in this case, the privilege of operating a place of public accommodation) in order to restrict a right, such as the right of free association. As I think I’ve made clear on other threads, part of having civil liberties means understanding that you can’t outlaw everything that’s bad.
So as to avoid reading the “tediously” drafted statutes, read the Atlantic article excerpt and the NYT reporting. Note the analysis of legal experts quoted in the Times article and the re evaluation by the ACLU of its position in favor of the 1993 Federal statute:
The IN law takes advantage of the Hobby Lobby ruling, which took the 1993 Federal statute and extended the right to exercise religious beliefs to a legal entity (corporation) because of how a corporation can reflect its owner’s religious beliefs, in essence. First Amendment right now covers a corporation (sounds like an extension of Citizens United).
IN expands this “right” to an even broader class of entities and institutes procedural protection for businesses that may want to take advantage of the statute so they have its protections.
The SCOTUS extended the right of religious expression to the actions of corporations. IN and other states saw the opening.
How does this happen? Societal context driven by push back against expanding gay rights and marriage equality.
If this were about something in the Tax Code, one might liken the IN statute to the expansion of a loophole.
See especially pp. 5-7 for the discussion of the differences between this law and the federal law. Together with the Atlantic article, I think this letter makes clear that nobody can continue to argue in good faith that this law is essentially the same as others, and that it’s only “sheeple” who care about it. An attitude I find incredibly and personally insulting. If either I or my son lived or even visited Indiana, we would both be personally at risk from this law; him more than me. (Because it’s far more likely, based on both our experiences, that someone would see him and perceive him to be gay, than that someone would see me and perceive me to be trans.) He’s already been looking at maps to figure out how he could drive to Chicago, or further west, without going through Indiana. And he’s not “sheeple.”
I’m far less concerned, by the way, about the danger of not being served by a business, and far more concerned about an EMS worker or hospital employee or even a physician refusing to treat people they perceive as gay or transgender for religious reasons (given the primacy afforded to “religious liberty” over competing concerns), or a pharmacist refusing to fill an essential prescription for the same reason, when there might not be anyone else readily available to do so. People have died because of such refusals (look up Tyra Hunter), and laws like this could not only increase the likelihood of such occurrences, but make them free of consequence for the person refusing to perform their job. Forget the nonsense about bakers.
Umm, no, it’s a lot more complicated than that. The main point of the religion clauses of the First Amendment was to preclude the federal government both from (a) establishing an official religion, like the Church of England in England, Roman Catholicism in Spain, France, and Austria (at the time), the Russian Orthodox Church in Russia, or Islam in the Caliphate (the Establishment Clause), and (b) doing that covertly by forbidding or penalizing disfavored religious practices, even without making the majority religion official (the Free Exercise Clause). At the time the Bill of Rights was adopted, I believe several of the states had established religions – Anglicanism in Maryland, Congregationalism in Massachusetts.
The issue of whether the Free Exercise Clause provided a defense to generally applicable state laws that were not directed at suppressing a minority religion, but that might have that effect – e.g., making peyote illegal clearly suppressed the practice of any Native American religion whose rites required peyote use – didn’t even begin to come up until about a century after its enactment. In the first major case, the Supreme Court held that federal law making bigamy a crime in federal territories could be enforced against devout Mormon men who believed they were commanded to have multiple wives. Dicta in the case suggested that the court would treat human sacrifice the same way. That was, in effect, the first “law of general applicability” case, although it was phrased in terms of a distinction between conduct and belief: the government could prohibit conduct, but it could not burden belief.
The question of sincerity of purported religious belief really came to the fore with the issue of conscientious objectors under the 20th Century wartime drafts, which of course carried over to the Vietnam War. You can bet government considered sincerity: the Selective Service System had a whole bureaucracy to do just that. But the Constitutional law issues were muddled by the fact that all modern draft legislation had statutory exemptions for objection based on religious belief. Roughly a century ago, the Supreme Court held that such exemptions were not required by the Constitution; it would probably reach a different conclusion now. But sincerity of belief has been a potential issue in many situations, prominent among them tax protesters and drug defendants. In addition to the relatively well-known Rastafarians and the Native American New American Church, not to mention the Amish, there are any number of much, much smaller and newer religious groups, some with only a few members, whose tenets practically command recreational drug use or prohibit the filing of tax returns (and often little else). Courts tread very lightly in those areas, but they definitely consider sincerity of belief a requirement, and I believe it is a requirement under laws like the Indiana law as well. As a practical matter, when people take actions clearly not in their best commercial interest – such as turning away business – sincerity of belief is rarely a serious issue, as opposed to situations like drug use or tax payment.
Where the courts have held that they will not inquire into the sincerity or validity of beliefs is cases involving church schisms, and disputes over church property involving competing groups who also disagree – or say they disagree – about church doctrine.
In general, the courts, and especially the Supreme Court, have never been especially expansive in interpreting the Free Exercise Clause. In addition to drug and tax cases, the Supreme Court held in 1985 that the Air Force could prohibit an Orthodox Jew from wearing a yarmulke while on duty (the soldier in question was a doctor practicing in a military hospital), even though it and other armed services had effectively permitted yarmulkes for decades previously. Congress has been much more solicitous of religious freedom than the Supreme Court. So most freedom of religion cases – including, recently, Hobby Lobby – are actually cases about statutory interpretation (with constitutional principles in the background), not cases about the Constitution. The federal Religious Freedom Restoration Act was explicitly adopted to undo the effect of the Supreme Court’s holdings in the yarmulke and peyote cases as regards federal law, and in theory the state statutes do the same thing for state laws.
I’m trying to think of a situation in which most people might support how this law works. Maybe a store that sells prayer shawls and phylacteries to observant Jews. The store owners believe (and I’m making up this part) that because these items are specially blessed, they may only be sold to practicing Jews, and only to men. So a non-Jewish person enters the store and is denied the right to buy one of these items. That person then brings a discrimination suit against the store under the state’s anti-discrimination law. The Indiana law would allow the store to raise its religious views as a defense.
Now I very well know that this is not what the Indiana law is trying to address. This why I have no problem with people who want to boycott Indiana over this. But from a legal standpoint, I’m not sure I see what’s wrong with the law.
An opinion piece in today’s LA Times points out that in the 20 year history of RFRA in various states, none has ever been used to defend against a case involving discrimination against gays.
Neither side makes me comfortable. I don’t like to see anyone being discriminated against. On the other hand, I don’t like seeing mom and pop bakeries being put out of business after being sued for not providing a wedding cake based on a sincerely held religious belief. This happened to a woman in Oregon.
It’s ironic that in protesting a law against refusing to do business with some people, others are now refusing to do business with an entire state.
“An opinion piece in today’s LA Times points out that in the 20 year history of RFRA in various states, none has ever been used to defend against a case involving discrimination against gays.”
Again, the Indiana law differs in at least two ways from the Fed law and 19 of the 20 states which have passed this legislation. Only South Carolina’s is the same as Indiana’s.
Imo, if the baker doesn’t want to bake a wedding cake for a gay couple - the baker can and has the right to stop baking all wedding cakes - but doesn’t have the right to not bake cakes only for same sex couples.
And how is the act of baking and selling a wedding cake to a gay couple going against a person’s religious beliefs? The baker is not going to turn gay by baking the cake or be forced to be gay married or to attend the gay marriage ceremony or even forced to take a bit of the cake that a gay person is going to eat! Oh, and the ingredients in cakes made for hetero marriages and gay marriages are exactly the same.
This law is nothing more than legal discrimination in the guise of religious freedom no matter how much it’s supporters say it is not.
An opinion piece in Huff Post boils things down further, namely:
The governor also says the law is exactly like all the other religious freedom laws that have been passed. He must know that this is not true, unless he can’t actually read English (which seems like a surprising attribute for a governor, but then again, it must also apply to all the people who claim to have compared the laws).
Yes, all the similar laws contain a version of the notion that the government can’t force a person to act against his or her faith unless the government is able to prove that exempting them would cause harm to the state. However, this Indiana law is broader than most, extending the notion to companies, societies or loose groups of people who all believe the same thing. But the big difference in wording is the Indiana law also says this person or society or group can refuse to do something even if the government isn’t involved. That combination of ingredients makes this the unicorn of Religious Freedom acts – you’ve never seen one before and you have to actually see this one to believe it.
This seems to me very different than 50 years ago when blacks couldn’t eat at so many cafes or check into so many motels that travel or eating out became almost impossible for them. The discrimination was that widespread that the anti-discrimination laws were necessary.
Is it really difficult to find a baker in Indiana that would do a wedding cake for a same sex marriage or commitment ceremony? I don’t know if Indiana permits same sex marriages as of now. Same for a florist or a photographer. Why wouldn’t gay couples just take their business elsewhere? Are some of these lawsuits against wedding photographers, bakers and florists just a political ploy to get headlines and put those with different beliefs out of business?
I don’t like intolerance. I prefer live and let live.
But I would like to bring in a new issue here – my son, who is a senior, is right now visiting Butler University, and Butler is among his top three choices. Since Butler has made clear they don’t support the law (and they like many businesses in Indianapolis have put up “This organization serves everyone” signs) what do others think is an appropriate response should he decide to go there? Especially because he’s considering Poly Sci as a major, I have suggested he write a letter of protest to the governor and to his future state congress people. Any thoughts?
I think PizzaGirl suggests a better way to address this kind of situation. I think it’s a good argument that people should not be forced to take actions that express views that they don’t agree with. But just letting people eat in your restaurant, or buy clothes in your store, or buy a wedding cake don’t do that. It gets more difficult when the service involves a message, however. I would never support punishing a baker who refused to make a cake with a swastika on it. If I take that position, I have trouble distinguishing it from a cake with two grooms on top, or one that says, “Congrats on coming out.” I’d have to think some more about services that require the provider to essentially participate in the activity in question (like a wedding photographer).
I would completely oppose any law that might suggest an EMT could refuse to treat a gay person for any ideological reasons, including religious reasons. If I were the judge, I would say that performing that service does not in any way constitute approval of anybody’s lifestyle.
“Is it really difficult to find a baker in Indiana that would do a wedding cake for a same sex marriage or commitment ceremony?”
Maybe, maybe not. But that is not the point. They should not have to look for a baker, or florist, or photographer who will do business with them.
If someone wants to have a business which is open to the public then they have the obligation, under public accommodation laws, to not discriminate. Gay people pay taxes which go towards plowing the roads and clearing the sidewalks these businesses are on, infrastructure paid for with public funds these businesses take advantage of, the support of the police and fire departments that these businesses depend on and many other public services all businesses use. They cannot have their cake and eat it, too.
@emilybee, if you were the judge, how would you rule on my hypothetical case of the Jewish store owner, who, for religious reasons, refused to sell a religious item to a non-Jewish person? Wouldn’t your arguments apply to that store owner as well?
Do you support gay couples purposely seeking out religous florists, photographers and bakers knowing that they will likely refuse them and then suing? The purpose being to make a political statement and/or put that person out of business. With all the bakers, florists and photographers out there, I suspect this is what is happening.
"And how is the act of baking and selling a wedding cake to a gay couple going against a person’s religious beliefs? The baker is not going to turn gay by baking the cake or be forced to be gay married or to attend the gay marriage ceremony or even forced to take a bit of the cake that a gay person is going to eat! "
Do you feel the same way about the baker (son of Holocaust survivors) being asked to put a swastika on the cake?
Where it gets murky is where there is some level of creativity / involvement, as Hunt suggests. I don’t think any of us would argue the pharmacy should be permitted to ring up Tylenol for whites but tell blacks they can’t buy it, for example. But there is no creativity / involvement - the Tylenol sits on the shelf.
If I run the Happy Family Bakery and soneone comes in and requests I make up a cake with a picture of male private parts on it, I can refuse to do so. I don’t even have to cite religious belief; I just don’t want to run a porn-cake store, right?
Likewise, do I as a small businessperson have the right to refuse business? I think I do. For example, you call my bakery and you want an order of 1000 cupcakes. I decide I simply don’t want an order that large, it stresses out my staff, I want to slow the business down and take a break, etc. I can say no, right? I don’t need to “justify” it to anybody. If it’s a bad business decision to turn down that order it’s still my right to make sub optimal business decisions, right?