Senator Kruse’s SB 101 passed out of committee and is now eligible for second reading. It has been designated “religious freedom restoration.” It seems to track the federal law with the same name but generally, as the synopsis says, it:
Prohibits a governmental entity from substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the governmental entity can demonstrate that the burden: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering the compelling governmental interest.
“Substantial burden” is not defined, nor, for that matter, is “religion.” However, “exercise of religion” is defined as “any exercise of religion,whether or not compelled by, or central to, a system of religious belief.”
First of all, this kind of broad and ill-defined language is a huge headache for government. A person doesn’t want to follow the law and says it substantially burdens his religion. Now what? You might just have to take his word for it — his religious belief, as the statute points out, doesn’t have to be part of any kind of organized system — nor does the objectionable regulation have to be central to the person’s religion.
I’m not religious but I’m not going to sneer at those who are. I recognize that plenty of good, thoughtful people have sincere religious beliefs. I will, however, observe that this legislation gives religious beliefs a preferred status above other sorts of beliefs that are just as sincerely held. If I object to an ordinance for sincere but secular reasons, those are just the breaks of being a citizen. I don’t see the compelling policy reasons for the General Assembly to make this distinction.
It’s called “feeding the beast” or the Reichwing Christians who fear the geh and the tin-foil hat Tea Partytarians needed for a Pence-run Gov’t support. Totally ridiculous and just as poorly written as the Marriage Discrimination Amendment that got sidelined in time to keep us from totally becoming Mississippi, even though they tried sooooo hard.
magormissabib (@magormissabi) says
Whats going on here is that sodomites are trying to force everyone to approve and even to participate in their mockery of holy matrimony / abomination called gay marriage. Its not enough for them that it is indeed legal now for them to do so but they are now going to ferret out any who do not approve and try and use the law to punish them. You can push people so far and they will eventually push back. The corrupt government of america says you can marry, then go do it but dont come knocking on my door and demand that I say its all good and get involved.
Compelling reason for the legislature to make the policy distinction? Well, the First Amendment to the U.S. Constitution protects free exercise of religion, not free exercise of conscience. Indiana’s Bill of Rights, though, forbids laws that “interfere with the rights of conscience.” I predict that expansion to rights of conscience would produce much more headache than tracking RFRA, as folks would try to make a laughingstock of it.
Doug Masson says
But why go beyond the First Amendment with this new legislation?
Another way for the right wing to ‘break’ government, then campaign on the premise that ‘government is broken.’ (?)
As I understand it there are a number of religiously affiliated colleges that are all over this because they want government funds for ‘training’ programs but want to pick and choose only people religiously connected to them to receive the ‘training’ and funds for it. What specifically are these people being ‘trained’ for? What is the ‘training’? Do we have a right to know what ‘program’ they are specifically talking about? One is IWU in Marion. I’m just curious about that if my tax money did not previously go to it, but now it will?
Paul K. Ogden says
Doug, all Indiana’s Religious Freedom Restoration Act does is restore the Sherbert test, requiring a compelling interest for laws that infringe on religious liberty, for interpreting the Free Exercise Clause, a test the courts employed from 1963 to 1990. There are tons of case law applying this standard and interpreting the language. When the Supreme Court threw out the Sherbert test in 1990 in the Employment Division v. Smith case in favor of a much lower standard (laws of general applicability can infringe on religious freedom), conservatives and liberal groups, including the ACLU, were outraged and joined together in coalition to support the reinstatement of the Sherbert test by congressional enactment. A bill was introduced by then Rep. Schumer (D-NY) in the House. It passed UNANIMOUSLY in the House and 97-3 in the Senate. It was signed into law by President Bill Clinton in 1993. In 1997, the Supreme Court found that the federal RFRA could not apply to the states for federalism reasons and left it up to states to adopt their own. Twenty states have done so, including states run by Democrats. There is nothing in the slightest bit unique or unprecedented about Indiana’s RFRA which merely reflects the federal one and the one adopted by 20 other states. Indiana needs to adopt the law because if the state doesn’t the much lower standard employed in Employment Division applies.
Paul, then you agree that businesses will be allowed to discriminate against those they feel are not sufficiently morally correct? The unwed mother, the gay couple, the religionist from a different faith background, the atheist?
Am I a victim of discrimination if a Jewish restaurant will not sell me ham or an Indian restaurant will not sell me beef?
No, you are not. Just as bakeries are not practicing discrimination for not making a penis shaped cake, assuming they don’t make obscene cakes as part of their product line. Companies are more than welcome decide what to sell. A Jewish restaurant would be practicing discrimination if they choose not to sell you a pastrami on rye simply because you were a Christian, but I think you know this because you committed a pretty obvious logical fallacy.
Jason Tracy says
Where do you draw the line with creative businesses, though?
Can a photographer who has done nothing but opposite-sex weddings be sued for refusing to take pictures at a same-sex wedding?
Refusing to sell a commodity is obviously discrimination, but there are many fields where you are almost participating in the activity as part of your business.
Why do you have the 2 weddings classified differently? It is the same activity. The photographer films weddings. I think that’s where I get lost in your argument. If you have a business that can be classified as accommodating the public then you can’t discriminate based on certain protected classes. If homosexuality is one of those protected classes then refusing to photograph their wedding is clearly discrimination. And a wedding photographer isn’t the same as a freelance photographer. Your paid participation is not necessarily an endorsement of the activities.
There is textual support in the Torah for segregation. I could claim (I wouldn’t but I could) that allowing both Jews and Christians in my restaurant contributes to integration and I would be a facilitator violating my religious rights.
Religious loopholes for for-profit businesses means you do not have an anti -discrimination statute.
Jason Tracy says
Why do you have the two cakes classified differently? A penis cake requires the same materials as a birthday cake.
If I’m requesting a phallic cake for a fertility celebration, and you refuse, are you not discriminating against my religion?
We agree that not serving beef at an Indian restaurant isn’t discrimination. I’m just playing devil’s advocate on your baking example, because it seems to be that you declared it OK for a baker to refuse making a cake it has the materials for on the grounds that it is obscene. That seems to be the same as a photographer refusing to take pictures of a wedding it feels is obscene.
I can limit the product mix I can sell. In other words, as a cake decorator I can choose not to carry cake toppers that depict 2 men and 2 women. The penis cake doesn’t have to be defined as obscene. It can simply be a cake style I don’t do. If Hobby Lobby only wants to sell Christian themed items, that’s not discrimination. This is where the logical fallacy of false equivalency comes into play. I don’t have to accommodate every shopper that comes through my door by having an equivalent item that matches their religious beliefs, or whatever protected class, but I do have to accommodate customers by selling what I do carry to whoever chooses to buy my products or services, or at least use non-protected class reasons for excluding patrons.
A wedding party that chooses to be naked is not a protected class, even if they are doing it for religious reasons, a photographer can choose not to photograph that wedding because they find it obscene. However, a mixed wedding party, black and white, is a protected class and a photographer couldn’t simply use miscegenation as justification not to photograph even if they honestly believe the Bible tells them the races shouldn’t mix.
The real question is, should homosexuality be a protected class?
Jason Tracy says
” It can simply be a cake style I don’t do.”
I’m still stuck on that.
Why can I say “That is a cake style I don’t do” but I can’t say “That is a wedding style I don’t do”?
Let me ask another way, leaving homosexuality to the side for a second.
What if I said “I only take pictures at Catholic and Lutheran weddings”? Is that allowed?
I think what Andrew is saying is that there is a distinct difference between what products and services a business provides and the people the business serves.
If it is such a basic and innocuous fix that should of happened 25 years ago why is it now being brought up by Kruse who is notorious for laws that advantage his Christian view of the world.
Should have not should of.
I am dolt.
Paul, be that as it may, that doesn’t answer my question which is to ask why, as a matter of public policy, religious beliefs should enjoy a privilege not extended to other sorts of sincerely held beliefs?
magormissabib (@magormissabi) says
Government has no compelling interest in forcing someone to participate in a mockery of marriage.b It is a complete farce that they need special protections as all empirical evidence that shows that there is zero discrimination against homosexuals in this country (or any history of being deprived of educational or economic opportunities) There are thousands of burinesss that will happily bake a cake or photograph your fake wedding etc.
You Know says
“Paul, be that as it may, that doesn’t answer my question which is to ask why, as a matter of public policy, religious beliefs should enjoy a privilege not extended to other sorts of sincerely held beliefs?”
Oh, Doug, you know the answer. Religion is a government that precedes the secular government, is superior to the secular government, and the secular government wouldn’t be erected or consented to if it conflicted with the religious government.
The freedom to worship is a natural right that well antecedes any secular government. The secular government is attempting to refrain from denying that natural right.
Sounds like that Sharia law some of the politicians are always going on about.
A number of years back I was actually in line behind a guy at Shapiro’s Deli, when there was one on 86th St, who walked up to the entrees and asked for a HAM sandwich. I’m still not sure he ‘got it’ when they told him they didn’t sell pork products.
Jason Tracy says
@Pila (new thread, that one was getting tiny!)
That’s where certain cases really get odd, when someone’s identity is part of the service performed.
I’m not saying, at all, that any businesses has the right to deny service based off of someone’s identity (age, race, gender, religion, or sexual orientation).
For example, if a homosexual father wanted to hire a photographer for his child’s hetrosexual wedding, the hetrosexual wedding photographer would have no grounds to refuse.
With photography and some other artistic services, there is a level of intimacy that comes with it. Zooming in on a homosexual embrace requires a certain level of comfort with that embrace, or the discomfort will show in the results of the photos. Bad photos make for a bad portfolio.
Going to another matter of identity, a caucasian photographer might refuse to take pictures of a dark-skinned wedding party, simply due to their own awareness of their lack of skill in properly managing the contrast of dark skin. It is a skill that takes practice, and there is nothing wrong with saying “I’m not going to do that because I don’t feel I’ll produce a product that is acceptable to me”.
Does the photographer have the right to refuse to produce a product they feel will not be up to their standards?
Would the photographer be out of line in asking the couple if they could do some practice sessions? Explain the reasoning behind the request. Wanting to give the customer his best work, also providing quality work for his/her portfolio? I do realize that this would not always be a reasonable request. Customer might be too busy, photographer might be otherwise booked.
Sen. Alting claims that since Sen Teddy Kennedy-MA supported the federal level RFRA that means that the state version can’t be used against gays. Not sure I agree with that logic, but then I think the state version is a wide-open invitation to mischief.
I have a question about the last graf of the law — the one that says “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.”
Let’s apply this to something that’s actually happened in the past — a pharmacist refusing to fill a prescription for Plan B or birth control, because it conflicts with their religious beliefs.
If I read this bill right, if the pharmacy owner has a policy that it won’t sell these products for religious reasons, that’s OK.
However, if the pharmacist is reprimanded or fired by the pharmacy owner for refusing to sell these products for religious reasons, that pharmacist does not have legal grounds to sue his or her employer for violating his or her religious freedom.
So am I reading it right that this is another law from the Indiana legislature that concentrates legal power in the hands of an employer? That “religious freedom” doesn’t extend to the employee at work? This seems like overkill, and a very badly written law, just to make sure a bakery owner doesn’t have to sell a cake to a same-sex couple getting married.
By the way, this law doesn’t seem to prevent, say, an inmate from suing on the grounds that the prison is violating his or her “religious freedom.” Am I right on that? So prisoners will have more rights under this law than employees?
Wouldn’t it be ironic if the only ones who benefit from this law are prisoners? Meanwhile, to keep the law, the governor has to throw all his supporters under the bus? LOL
(no legal training / just a curious indiana resident)
I thought that Indiana’s bill IS significantly different that the versions passed in other states in that it does NOT require the government to be a party to the conflict, while in the other states it does. There is a thinkprogress article from back in January that makes this assertion.
You don’t mention in it and Paul explicitly says that this is not the case – what are your thoughts? Can you help me understand? Thanks :)
Doug Masson says
I don’t think that’s accurate. The text pretty clearly refers to government action not being permitted to burden a person’s exercise of religion. Doesn’t say anything about non-governmental burdens on exercise of religion.
Doug, I found your blog while trying to look for answers to all of this. One of the things I have read several times is that what makes this different than the “18 other states that have the same law” is that many of those states (if not all?) have civil rights protections regarding sexual orientation. Indiana does not. So, if I understand correctly, I bi-racial couple would be protected under civil rights laws even if interracial marriage was against the business owners religious beliefs, where as the homosexual couple is not protected. Could you speak to this? Am I understanding that correctly?
Doug Masson says
I don’t know whether those other states do or don’t have protections for sexual orientation. (I imagine some do – don’t know if it’s most or all.) So, I’d analyze it this way:
1. No protection for sexual orientation. In this case, there is no government action to “burden” religion in the first place. So discrimination could take place with or without RFRA.
2. Protection for sexual orientation. In this case, RFRA doesn’t come into play until the individual (or company) runs afoul of the laws protecting against discrimination based on sexual orientation. If the person did run afoul of such laws, the person could say that their religious beliefs required the discrimination. At that point, the court would have to determine whether there was a compelling governmental interest in preventing discrimination based on sexual orientation. (Probably would). Then it would have to determine whether the governmental protection – as applied to the religious person – was the least restrictive means of advancing that compelling interest. And that’s where things would get interesting. I don’t know how it would shake out at that point.
magormissabib (@magormissabi) says
It is a mistake to add sexual orientation to the list of protected minorities: Maybe the United States Supreme Court is going to overturn centuries of law and decide that engaging in purposeful self-pronounced and unnecessarily-published sinful behavior is a basis for finding a protected class.(Vis-à-vis being born with an immutable trait, like race, gender, disability, a body that naturally ages, etc.)
Carlito Brigante says
Sexual preference is an immutable trait. Bigotry against LGBTs based upon religious mythology is merely a repeat of religious mythology used to persecute blacks in the Jim Crow era.
Carlito, sexual preference may be an immutable personal characteristic, but an immutable trait? Is there genetic evidence for this? I recall that during WWII, homosexuals really avoided that position, afraid they would play into Hitler’s hands, which they did anyway.
Carlito Brigante says
Stuart, there is some evidence of the gay gene, but nothing conclusive.
Thanks. I thought I was missing something…By the way, this whole Pence thing is better than the old SNL. Can’t wait for the next installment.