Religious Freedom Indeed.
I’ve really been out of sorts the last day or so ever since Governor Pence signed into law the right for businesses to discriminate based on religious beliefs. Frankly, it’s upset me more than I expected it would (and that’s saying something, because I was deeply bothered by the bills prospect).
Look, I’m not naive enough to think Indiana is a blue state; nor do I fail to realize that there are hateful people in the world. I’m also aware that there are a shocking number of people who confuse a person’s right to worship with some fictional right to persecute others. I see evidence everyday of people who willfully maintain a rose-colored ignorance of the potential impacts of a position just because a bullet pointed summary dripping with politically-spun propaganda sounds on the surface to be inline with some more general party position or dogmatic belief. I get it.
But there are things I don’t get.
I don’t get how in this country … even in a ‘red state’ … elected officials and public servants can (along party lines) enact a law whose origins and intentions are so clearly designed to ensure that business can discriminate against other citizens whose religious beliefs don’t match their own. Religious Freedom Act indeed.
I’ve heard the very frustrating claims (based in either willful ignorance or lies) that critics of this law simply haven’t read it. Let me be clear: I have read it. All of it. I’m also fairly well practiced in reading legal documents. (I am not a lawyer.)
It’s an awful law … it’s designed explicitly to permit social discrimination – outside of religious contexts – so long as the oppressor claims his discrimination is part of his religious practice. “Oh … well then carry on, by all means.”
The core of the bill (I’m using the language of the bill as it’s not yet been added to title 34 of the Indiana Code website yet) boils down to section 8(a) which reads:
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
Above section 8 is a bunch of definitions and scoping statements, and below section 8 are qualifications under which the government can indeed ‘substantially burden a person’s exercise of religion’ (which requires a very heavy burden on the state). Go read it yourself – but remember in legal documents the devil is in the definitions and cross references of sub-points in alternate paragraphs.
Lets examine Sec 8 with that mind.
First, you might be wondering “what is ‘a rule of general applicability’”? It’s rather hard to explain (because the case history is complex), but basically it has to do with the difference between laws that may impact free speech or religious practice vs. laws that directly attempt to regulate those activities. As an example consider a law that outlaws animal sacrifice vs a law that criminalizes animal cruelty. The latter doesn’t attempt to regulate religious practice but could arguably impact it. The principle of general applicability parallels equal protection jurisprudence; to require laws to be generally applicable corresponds to the requirement of equal treatment under the law.
What this means is that if an act argued to be protected by this law is found to be discriminatory, no action to end or remedy the discrimination can be enforced so long as the persecutor claims the act to be somehow related to their exercise of religion.
‘Person’ is defined in the document as any natural individual (a human being), an organization (churches, clubs, etc), companies and corporations, and basically anyone or anything that can be sued (as it relates to the civil court).
Here’s the real kicker, I think, … section 5:
Sec. 5. As used in this chapter, "exercise of religion" includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
In other words … it doesn’t matter what it is. A discriminatory act for example. The discrimination NEEDN’T be compelled by the religious beliefs, NOR need it even be central to religious beliefs or systems in order to be protected. So long as the discrimination is claimed in some nebulous way to relate to religious belief (as defined by the persecutor, not the religious doctrine itself), the persecutor is protected from any endeavor to end or otherwise remedy the discrimination. Religious leaders and scholars themselves may affirm fervently that the discrimination is neither compelled by nor central to their religion … but that doesn’t matter. The bigots get to decide who can sit at the lunch counter all over again.
“Really,” you ask “we could be back in a ‘lunch counter’ situation again?” The law allows the government to intervene and protect where it has a compelling interest to do so. There are some federally protected classes (based on things like race, gender, etc) for which the government would have a compelling interest to protect from discrimination. Sexual orientation (for example) is NOT currently one of those protected classes – so yes … get ready for the “No Queers Here” signs.
This law doesn’t “restore religious freedom” – it codifies the ability of people to persecute others based on their own religious beliefs, and says that the government is not allowed to protect individuals from that discrimination so long as the discrimination is done in the name of religion. This law doesn’t “restore religious freedom” – unless you believe religious freedom was lost due to America’s historical refusal to codify the ability for members of one religion to persecute others … in which case I invite you to find your nearest Jr. High School and retake a basic civics or American history class.
So … for all of you “willful rose-colored ignorance” types, let me address the thought that’s now bubbling up to the surface of your mind: “Oh come on,“ you say, “just because something could be used as a tool for discrimination, that doesn’t mean it will be.”
To that I offer two thoughts:
- What exactly is the admittance fee to the perfect world you live in?
- Given the fact that the law could (and will) be used to justify discrimination, and given that a federal protection against government interference in religious practice already exists … there must have been some other serious problem that this law was meant to fix. Some great injustice – so egregious that its remediation warranted the risk of abuse this additional law now presents.
So … what “problem” was this law trying to fix? What had to be remedied? Here’s the simple basic facts:
- This laws origin stems from a case where a business wanted to refuse service to a homosexual couple. Period.
- The lobbyist working to get this bill passed proudly bragged that this was in response to losing the the effort to outlaw same-sex marriage.
- Pence (and the authors of this law) knew very well what is and isn’t a protected class, and Pence had stated explicitly that including sexual orientation as a protected class was not on the agenda.
- This bill was authored in order to allow for businesses to target members of the LGBT community. Period.
Mike Pence is lying to you. This law is purely and solely designed to ensure that discrimination is allowed in this country so long as the oppressor claims to be doing so in the name of religion. It was created and passed as an attack on the LGBT community, but it’s far reaching nature impacts everyone.
Don’t like The Gays? Indiana is the place for you! See a guy holding another guys hand in your store – kick them out! Feel spiritually bothered by …. people shorter than 6’2″? Feel free to exclude them from services here. Religious Freedom Act indeed.
… sigh …
You know … I recently got into a rather serious disagreement with a very good friend because I felt he was too frequently ripping on Indiana and Hoosiers based on what I felt were largely unjust stereotypes. The passage of this law reinforces every negative stereotype Indiana and Hoosiers suffer under; that we are a backwater, socially insulated, ignorant group of bible-beating hicks who don’t understand the larger world we live in.
I still don’t believe that. I see the outrage over this law. I see it in my fellow hoosiers. The disgust HOOSIERS feel over this is very real … but the bottom line is that this law passed in Indiana. It’s a shame and an embarrassment. It is a backwater, socially insulated, ignorant act by a government which came to pass not because hoosiers are stupid hicks, but thanks to a party line majority action which serves a hate-based political game at the expense of the people. It supports discrimination, and it harms the image of our state and our populace. It makes it harder for state, national, and international companies and industries to have faith that they can live and work here.
Mike Pence and every single person who voted for this bill is a DISGRACE to Indiana and to hoosiers. We should vote every single one of them out of office. Every. Single. One.
So very well written, Dave. Like I said, this has left me speechless (an almost impossible task ). My blood is boiling.
Well done nephew! I have been looking for a thorough, concise and very smart answer to counter the squirming lies of the esteemed Governor of Indiana. But I didn’t think I would find it from a guy whose diapers I have changed! I’m very impressed.
Excellent. It baffles me that this even comes up as an issue in 2015. I agree that this is an embarrassment not only to our state but our country as a whole.
Dave, this is an intelligent and very well written statement. I am very proud of what you did, and I suggest you run for governor!