Lakhota
Diamond Member
- Jul 14, 2011
- 166,546
- 90,887
The new statute's defenders claim it simply mirrors existing federal rules, but it contains two provisions that put new obstacles in the path of equality.
The Indiana statute has two features the federal RFRAâand most state RFRAsâdo not. First, the Indiana law explicitly allows any for-profit business to assert a right to âthe free exercise of religion.â The federal RFRA doesnât contain such language, and neither does any of the state RFRAs except South Carolinaâs; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.
The new Indiana statute also contains this odd language: âA 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.â (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.
What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has âfree exerciseâ rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last yearâs decision in Burwell v. Hobby Lobby Stores, in which the Courtâs five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employeesâ statutory right to contraceptive coverage.
Second, the Indiana statute explicitly makes a businessâs âfree exerciseâ right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, thereâs a lot of evidence that the new wave of âreligious freedomâ legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the coupleâs wedding. New Mexico law bars discrimination in âpublic accommodationsâ on the basis of sexual orientation. The studio said that New Mexicoâs RFRA nonetheless barred the suit; but the stateâs Supreme Court held that the RFRA did not apply âbecause the government is not a party.â
Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision. Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down.
So, letâs review the evidence: by the Weekly Standardâsdefinition, thereâs ânothing significantâ about this law that differs from the federal one, and other state onesâexcept that it has been carefully written to make clear that 1) businesses can use it against 2) civil-rights suits brought by individuals.
Of all the state âreligious freedomâ laws I have read, this new statute hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people. True, there is no actual language that says, All businesses wishing to discriminate in employment, housing, and public accommodations on the basis of sexual orientation, please check this âreligious objectionâ box. But, as Henry David Thoreau once wrote, âSome circumstantial evidence is very strong, as when you find a trout in the milk.â
Soâis the fuss over the Indiana law overblown?
No.
The statute shows every sign of having been carefully designed to put new obstacles in the path of equality; and it has been publicly sold with deceptive claims that it is ânothing new.â
Being required to serve those we dislike is a painful price to pay for the privilege of running a business; but the pain exclusion inflicts on its victims, and on society, are far worse than the discomfort the faithful may suffer at having to open their businesses to all.
As the story of Maurice Bessinger shows us, even dressed in liturgical garments, hateful discrimination is still a pig.
More: Indiana Religious Freedom Restoration Act Allows Private Businesses to Discriminate Against Employees Based on Sexual Orientation - The Atlantic
I hope this helps to make the differences clearer.
The Indiana statute has two features the federal RFRAâand most state RFRAsâdo not. First, the Indiana law explicitly allows any for-profit business to assert a right to âthe free exercise of religion.â The federal RFRA doesnât contain such language, and neither does any of the state RFRAs except South Carolinaâs; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.
The new Indiana statute also contains this odd language: âA 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.â (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.
What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has âfree exerciseâ rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last yearâs decision in Burwell v. Hobby Lobby Stores, in which the Courtâs five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employeesâ statutory right to contraceptive coverage.
Second, the Indiana statute explicitly makes a businessâs âfree exerciseâ right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, thereâs a lot of evidence that the new wave of âreligious freedomâ legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the coupleâs wedding. New Mexico law bars discrimination in âpublic accommodationsâ on the basis of sexual orientation. The studio said that New Mexicoâs RFRA nonetheless barred the suit; but the stateâs Supreme Court held that the RFRA did not apply âbecause the government is not a party.â
Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision. Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down.
So, letâs review the evidence: by the Weekly Standardâsdefinition, thereâs ânothing significantâ about this law that differs from the federal one, and other state onesâexcept that it has been carefully written to make clear that 1) businesses can use it against 2) civil-rights suits brought by individuals.
Of all the state âreligious freedomâ laws I have read, this new statute hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people. True, there is no actual language that says, All businesses wishing to discriminate in employment, housing, and public accommodations on the basis of sexual orientation, please check this âreligious objectionâ box. But, as Henry David Thoreau once wrote, âSome circumstantial evidence is very strong, as when you find a trout in the milk.â
Soâis the fuss over the Indiana law overblown?
No.
The statute shows every sign of having been carefully designed to put new obstacles in the path of equality; and it has been publicly sold with deceptive claims that it is ânothing new.â
Being required to serve those we dislike is a painful price to pay for the privilege of running a business; but the pain exclusion inflicts on its victims, and on society, are far worse than the discomfort the faithful may suffer at having to open their businesses to all.
As the story of Maurice Bessinger shows us, even dressed in liturgical garments, hateful discrimination is still a pig.
More: Indiana Religious Freedom Restoration Act Allows Private Businesses to Discriminate Against Employees Based on Sexual Orientation - The Atlantic
I hope this helps to make the differences clearer.