Gay Marriage

Indiana's So-Called 'Right to Discriminate' Law Appears Very Similar to Existing Federal Law

No, SB101 will not result in public safety workers refusing to do their jobs.

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Cake is supposed to bring us all together, not tear us apart!
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Here's the meat of Indiana's recently passed (soon likely to be signed) Senate Bill 101:

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.  

(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates  that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling  governmental interest.

I want to point out this wording first because it is pretty much the same as the already existing federal Religious Freedom Restoration Act (RFRA). The existing RFRA applies only to the federal government and federal laws (efforts to apply federal rules to the states were struck down by the Supreme Court).

Here's how opponents of SB101 are describing what it does:

[T]he Human Rights Campaign (HRC) is sounding the alarm on a bill under consideration in Indianapolis. Senate Bill 101 … is part of a wave of anti-LGBT legislation emerging across the country that threatens to undermine all existing state civil rights law, unleash a wave of litigation, and damage the economic climate and reputation of the states in which they are being considered.

S.B. 101, entitled the "Religious Freedom Restoration Act," empowers individuals to sue the government over any policy that they believe infringes on their personal religious beliefs. If passed, the law could empower police officers to refuse to patrol the areas around synagogues or mosques, allow doctors to withhold medically-necessary information from their patients, or expose the LGBT community to a wave of new forms of discrimination.

In Indiana, local employers including Eli Lilly & Co. and Cummins have spoken out against S.B. 101, arguing that the bill is bad for business. Similar legislation has been opposed in other states by other major companies including Wal-Mart and Apple out of concern that they undermine existing civil rights law and deeply harm the business climate of states in which they are passed.

"Religious freedom is critically important, that's why it's enshrined in our constitution and state and federal law," said HRC Legal Director Sarah Warbelow. "But bills like S.B. 101 open a can of worms—they empower any individual to pick and choose which laws they want to follow and which laws they don't, and they expose countless Hoosiers to new and pernicious forms of everyday discrimination."

So is Warbelow not aware that this state-level law actually mimics the federal version that she notes is "enshrined" in federal law? And is she aware that any Indiana officer trying to sue to keep from patrolling synagogues and mosques would possibly lose under section 8b? The National LGBTQ Task Force breathlessly described SB101 as the "nation's most anti-LGBTQ law," again despite the fact that similar laws exist in several states and in the federal government.

I understand that HRC and other gay groups oppose the law as a matter of principle against anti-gay discrimination. I get it, even if I don't share their fears that businesses are just raring for an excuse to turn gay people away and don't believe in these restrictions to freedom of association. I object to their attempt to characterize this as some sort of new thing. These state level laws are happening because the federal RFRA doesn't apply to the states and—well, yes—there are businesses out there who don't want to acknowledge gay marriages by providing goods and services. I'm not going to pretend that they're not and that their desires are not a driving force behind these laws. But it's disingenuous and dishonest to completely ignore the extremely important caveats that keep the law from threatening public safety. If you want to make the case for wedding cakes, then make the case for wedding cakes. If you want to make the case for antidiscrimination laws, make the case for them. But leave the fearmongering about police and firefighters refusing to do their jobs out of it.

Several states have had laws or regulations similar to these that have been in place for some time. During the Hobby Lobby case (which depended in part on that federal RFRA) Eugene Volokh put together a map showing how different states enshrine levels of religious freedom as they intersect with government policies. Note that according to Volokh's map, Indiana's constitution and courts already seem to require strict scrutiny whenever the law abridges religious freedom.

And a final libertarian caveat that I tend to forget when writing about this topic: It's fundamentally unfair that people who are religious get additional opportunities to assert their freedom of association rights that others do not. Imagine if section 8b said the government couldn't "substantially burden a person's exercise of free association" except in cases where there's a compelling government interest?

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  1. OT: Liberal of the week proposing banning all guns. Always from the left, almost never from the right. They really hate that amendment, huh?

    http://www.pennlive.com/opinio….._guns.html

    *sigh*… maybe I’ll go buy 1000 more rounds of 5.56…

    1. Re: Monty Crisco,

      Always from the left, almost never from the right. They really hate that amendment, huh?

      Almost all the arguments against personal ownership of firearms are not based on insurmountable issues like school safety and the like. You can argue that you can have both safety and gun ownership, successfully. The little red Marxians are NOT interested, however, in solutions of that kind but on outright bans, for a simple and very disturbing reason which they do not elucidate but is nonetheless clear enough:

      YOU CANNOT IMPOSE YOUR FAVORITE SOCIAL ENGINEERING PLANS ON AN ARMED POPULATION.

      That’s it. That’s the WHOLE reason little red Marxians hate guns. It is not because they’re afraid of them – no, they love it when it is the State that wields them. They cannot stomach a population that will not meekly accept their grand designs.

      1. I’ve known many people on the left who see no distinction between self defense and vigilante justice. They see no circumstance under which a citizen can legitimately use force. Only the government can legitimately use force, and all force by the government is legitimate. Because of this they do not want anyone other than government to have guns.

        You’re right in that social engineers do not want an armed population, but that’s not the sole reason why people on the left want to take away our guns.

        1. Does make putting us all in camps easier…

          And left proggie policies ALWAYS end in camps….

        2. Re: sarcasmic,

          I’ve known many people on the left who see no distinction between self defense and vigilante justice.

          That’s just an excuse, a convenient equivocation. If you ask them if a victim of a rape in progress suddenly becomes a vigilante the moment she shoots her aggressor, you will know they’re not sincere in the least.

          1. I have posed that exact question, and the answer I got was an emphatic affirmative. She’s supposed to submit and then call the cops when it’s over, because any use of force by someone other than a government agent is wrong.

            1. They’re bullshitting you.

              1. They seemed sincere at the time.

                1. Re: sarcasmic,

                  They seemed sincere at the time.

                  They weren’t. Ask yourself if their position is reasonable or tenable. If it was one of them, wouldn’t any of them pick up a weapon to defend their lives? What human being wouldn’t? Obviously, they’re bullshitting you so they don’t have to state the true purpose of the bans: to leave the population defenseless against their designs.

                  1. The premise is that only government can legitimately use force, and all government force is justified. Thus self defense is taking justice into your own hands, which is no different than vigilante justice. The logic is sound, though the premise is false.

      2. No need to get so narrowly excited.

        Progressives simply hate individualism. The greater good of society is their mantra, and that requires suppression of individual desires.

        Self-defense, driving your own car to work, owning your own house on your own plot of land, choosing your own foods, all those emphasize individuals without concern for the greater good, and therefore are evil.

        1. Re: Scarecrow Repair,

          Progressives simply hate individualism.

          You may hate a certain philosophy but that does not translate to wanting to ban things. There is a purpose behind such a policy, not simple hatred for a thing. That purpose, I contend, is to have a defenseless population upon which to mold, by force if necessary, a new society.

          1. Yes, because they hate individualism. It very necessarily follows that they must ban anything which lets individuals stand out from society.

            That’s their entire purpose, to squelch individualism. They hate the very idea that people do thinks on their own.

      3. YOU CANNOT IMPOSE YOUR FAVORITE SOCIAL ENGINEERING PLANS ON AN ARMED POPULATION.

        I have no doubt that that’s part of their psychological makeup, but do you think that’s a conscience thought for most lefties? Confiscation of guns will certainly lead to state tyranny, but is that really what they believe and strive for or is it simply an end product of their misplaced solutions?

        I suspect they are simply stupid and incapable grasping second and third order consequences rather than evil.

        Regardless, the result is the same.

  2. I want to point out this wording first because it is pretty much the same as the already existing federal Religious Freedom Restoration Act (RFRA)

    Which the Federal government fails not in obeying to a T and…

    … WHAT ARE YOU GUYS LAUGHING AT?

  3. Imagine if section 8b said the government couldn’t “substantially burden a person’s exercise of free association” except in cases where there’s a compelling government interest?

    Mmmmm… *smiles, with eyes shut*

    *wakes up and realizes this is not the case…scowls*

    1. Imagine if section 8b said the government couldn’t “substantially burden a person’s exercise of free association” except even in cases where there’s a compelling government interest?

      NOW, I’m smiling.

  4. I understand that HRC and other gay groups oppose the law as a matter of principle against anti-gay discrimination

    As a matter of “principle”?

    What principle is there behind “I want your stuff so give it to me, now!”?

    It’s fundamentally unfair that people who are religious get additional opportunities to assert their freedom of association rights that others do not.

    The fair thing is that everybody enjoys their right to freely associate and freely contract with whoever they wish – the libertarian position.

    The fair thing is that everybody forks out their goods or services to me regardless of their wishes – the little red Marxian position.

    Which do you think is favored by the little red Marxians in the government, academia and the media, huh?

  5. “Religious freedom is critically important…”

    But we don’t want you actually exercising that right. That’s not what we meant!

  6. [T]he Human Rights Campaign (HRC) is sounding the alarm on a bill under consideration in Indianapolis. Senate Bill 101 ? is part of a wave of anti-LGBT legislation emerging across the country that threatens to undermine all existing state civil rights law, unleash a wave of litigation, and damage the economic climate and reputation of the states in which they are being considered.

    S.B. 101, entitled the “Religious Freedom Restoration Act,” empowers individuals to sue the government over any policy that they believe infringes on their personal religious beliefs. If passed, the law could empower police officers to refuse to patrol the areas around synagogues or mosques, allow doctors to withhold medically-necessary information from their patients, or expose the LGBT community to a wave of new forms of discrimination.

    Treading this ‘society will crumble’/’the law will become intolerably complicated’ ground as a pro-gay argument, rather than anti-gay, doesn’t make it any more effective. Especially since, as a libertarian, I didn’t buy the whole ‘without cops on every corner society will crumble’ argument to begin with.

  7. “damage the economic climate and reputation of the states in which they are being considered”

    Yes, because the reputation of Indiana will just spontaneously decline, it’s not that the guy making that statement is going to be working full-time to make sure Indiana’s reputation is trashed.

  8. I wonder where this sort of article was when Arizona and Arkansas were considering their RFRAs and private-property-protection bills? But in those instances, Reason writers were like “eww, icky homophobia, we can’t support property rights in these circumstances!”

  9. “And a final libertarian caveat that I tend to forget when writing about this topic: It’s fundamentally unfair that people who are religious get additional opportunities to assert their freedom of association rights that others do not.”

    To which there are two obvious replies:

    (1) It’s not like the “fundies” and “bleevers” want everyone else to be forced to make gay cakes. They don’t want this forced on *anyone,* but they’re happy to get whatever protections they can in the meantime.

    (2) The First Amendment singles out “free exercise of religion” as a specifically-protected right. Of course, you could say that freedom of association is a 9th Amendment right, and I bet many SoCons would agree. But while waiting for the 9th Amendment to be enforced, they don’t want to surrender the rights they have.

    1. Freedom of association is in the First Amendment–it’s covered in the right of the people to peacably assemble.

  10. How can you acknowledge homosexual “marriage” when no such thing exists?
    It is like saying a daisy is now a rose and shall be treated as such.
    Marriage is between a man and a woman – period.

    1. “Marriage is between a man and a woman – period.”
      Look at my thumb. Gee you’re dumb!

  11. Freunds, Fellow Hoo?iers and Freidom Fighters:
    A Californicator just upped the ante putting a “Kill the Sodomites” measure forward. Are you really going to let the Left Coast of Sodomy and Gaymorrah show you up? If you think freedom is safe by just refusing service, you are wrong. They will sneak in anyway camouflaging themselves as real human beings who look exactly like your family, fellow church members and neighbors — geegolly, that’s what they are for cry sakes!

    They will punish you for standing up for freedom, by refusing business with our Great State and our Great Race. Stand up for yourselves, Hoosiers!

    They’re here; they’re queer; and they’re *already* marrying your boyfriends and your daddy! It is a fact that our Blessed Capital has more gays than Sodom Francisco — and don’t even get me started on the dainty flower of Bloomington, home of our Blessed University, the best in the US and entire world! I went there once — and God have mercy on me, and us all — I [gasp] learned something! But, I repent and rebuke knowledge and the passage of time in Religion’s name! [We did agree to call this “religion”, right?]

    It’s time to restore our great state to what God and our Theist Forefathers intended — just like Free and Christian Germany needed to be restored.

    “Freedom” of “Religion” for once, ?R for all (real people only)!

    http://incorrigiblycorey.blogs…..ators.html

  12. Amen, Amen, Amen!!!!

  13. “I object to their attempt to characterize this as some sort of new thing.”
    Not new, perhaps, but dangerous, given how the bill’s sponsors characterize it:
    http://thinkprogress.org/lgbt/…..criminate/
    “It’s not just LGBT advocates who think it’s a pro-discrimination bill; its own proponents admit it. Micah Clark of the American Family Association explained to The Indianapolis Star that the bill would allow small businesses to refuse services to same-sex couples and also that it would allow adoption agencies to refuse to place children with same-sex couples. The Indiana Family Institute made an end-of-year fundraising pitch that promoted the legislation, noting examples of small businesses who were facing discrimination complaints from same-sex couples.”

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