Gay Marriage

Indiana, Religious Freedom, and the Constitution

Indiana is free to look the other way in the face of discrimination based on sexual orientation. But they are not free to encourage it or to make it lawful.

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The Indiana Religious Freedom Restoration Act of 2015 is constitutionally infirm and legally troublesome.

The circuitous constitutional route that brought about this statute began in 1990 when the Supreme Court ruled that the Free Exercise Clause of the First Amendment may not be used as a defense to violating the general laws of the land. In Employment Division v. Smith, a small group of Native Americans who had been fired from their jobs because drug tests revealed their use of peyote made applications for unemployment compensation, which the State of Oregon denied. They appealed and claimed that their use of peyote, a hallucinogenic drug, could not be the basis for firing them from their jobs because it was a sacrament in their religion. The court ruled that the adherents to this religion had the same obligation to obey the laws that prohibit the use of peyote as all persons do.

In response to that decision, and wanting to show an interest in an issue of constitutional liberty for a change, Congress enacted the federal Religious Freedom Restoration Act of 1993 (RFRA), a clumsy effort to overturn the Employment Division v. Smith ruling. That statute basically required the federal government and the states to permit the "my religion made me do it" defense wherever there was an arguable claim that a general law of the land conflicted with a genuine religious practice or belief. The statute also mandated an exacting due process standard, called strict scrutiny, that the courts are to apply to the states' enforcement of their laws when addressing an alleged clash between a general law applicable to everyone and a free exercise of religion claim.

Four years later, when the Roman Catholic Archbishop of San Antonio, Texas, claimed the protection of RFRA to justify an exemption to a local zoning law so that an old church could be expanded, and lost, he appealed, and the case made its way to the Supreme Court. In Boerne v. Flores (1997), the court found RFRA to be unconstitutional. It ruled that Congress had effectively redefined the meaning of the Free Exercise Clause and mandated the judicial standards to be used when assessing claims made under it, and that that definition and mandate are not properly Congress' to make. Because Congress' powers under the Fourteenth Amendment are limited to remedying state failures to protect fundamental liberties and do not extend to defining the meaning or parameters of constitutional provisions, the court invalidated RFRA.

Thus, it is clear that one may not violate any law, state or federal, and escape the consequences of that violation on the basis that one's religious views compelled the disobedience. Were this not the case, then nothing would prevent animal sacrifice, the use of mind-altering drugs, and even racial or gender or national origin discrimination in public accommodations and housing—all allegedly based on one's claimed religious views. The federal Civil Rights Act of 1964 prohibits discrimination in housing and public accommodations based upon race, gender, religion, beliefs, or national origin, and quite properly permits no religious-based defense.

In response to the invalidation of RFRA, many states enacted their own form of RFRA, and most states added sexual orientation to the litany of prohibited bases for discrimination in public accommodations and housing. Indiana has not added the prohibition on discrimination based on sexual orientation; yet its own RFRA statute, signed into law last week, provides a "my religion made me do it" defense to allegations of discrimination based on sexual orientation. Hence the belief and fear that the Indiana statute is an affirmative attempt to provide a lawful basis for such discrimination. Such an attempt would surely run afoul of the Supreme Court's invalidation of a Colorado constitutional provision that purported to do the same in Romer v. Evans (1996).

The legal issues attendant upon the judicial enforcement of this Indiana statute are enormously complex. They would amount to judges determining the centrality and sincerity of a person's claimed religious practices to the core teachings of his religion. This type of determination by judges could only come about by an inquiry unknown in American jurisprudence ("Is this really taught by your church?" "Do you really believe this?" "How is your refusal to sell goods or services to this person central to your religious beliefs?") and prohibited by the Free Exercise Clause, which the courts have held bars such judicial inquiries.

In the days before the federal Civil Rights Act of 1964, the late Sen. Barry Goldwater offered a neutral, non-racist common-law argument based on morality and property rights against that landmark legislation. He articulated the view that a seller of goods or services or real estate has a natural right to decide to whom he wishes to sell, free from government commands. Goldwater paraphrased Thomas Jefferson, who argued that the only moral commercial transaction is one truly voluntary on the part of the buyer and the seller. That argument has an attractive leave-me-alone appeal to it; yet, the public policy of the nation since 1964 has unambiguously rejected it. Today in America, if you operate a public accommodation or deal in real estate, you cannot choose your customers; they choose you. This Indiana statute is arguably an effort to bring back the pre-1964 days with respect to sexual orientation.

Because discrimination based on sexual orientation is not prohibited by the Civil Rights Act of 1964, Indiana and all other states are free to prohibit it or to look the other way in the face of it. But they are not free to encourage it or to make it lawful.

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  1. “… free to prohibit it or to look the other way in the face of it. But they are not free to encourage it or to make it lawful.”

    Wait, they’re free to make it illegal, but not to make it legal?

    1. No, I don’t get it either.

      1. I think Napolitano’s way off on this one. At least in his explanation. He might have a pretty strong case that you can’t make it legal for some people to discriminate. But, if so, he should focus on that argument.

    2. I’m trying to understand it here, and here’s the part I don’t get;

      So it’s the Supreme Court’s opinion (and the Judge’s, apparently) that Congress can pass laws restricting people, but they can’t go back later and ease those restrictions (of their own laws) on Constitutional grounds… because it’s the Supreme Court’s job to interpret the Constitution?

      So if Congress passed an Assault Weapons Ban, and then went back a year later and claimed that the SKS is exempted from the ban because the Second Amendment applies to weapons without readily detachable magazines, it would be Napolitano’s opinion that Congress doesn’t get to make that distinction?

      I can has confuse.

      1. I believe the issue he raises is a law that, directly or indirectly, redefines meanings from the constitution/bill of rights.

        1. That’s how the original RFRA was struck down, but how does that affect the present issue, i.e. that of discrimination cases under a state law?

      2. The one good point in all this is that RFRA-type statutes ultimately require the state to determine what a legitimate religious belief or practice is.

        I don’t think there’s any getting around that. And its a serious Establishment Clause issue.

        The rest of it is tripe.

    3. I think I get what he’s saying, but it still doesn’t make sense. Who would have standing in a suit to strike such a thing down? Who would be harmed by its provisions and would have a case in court where it mattered? Someone who failed to convince a judge that hir religious practice was sincere or relevant? How would it help that person to strike down the provision that allowed hir to raise the defense at all? A plaintiff who lost an antidiscrimination case because of such a defense? What constitutional right of that person would’ve been violated?

    4. The Judge isn’t clear, but I think he meant they can’t make it legal in light of Romer v. Evans (rational basis review of laws in view of the Equal Protection Clause).

      1. Don’t be a sophist. EP turns on whether the category/behavior/trait is outside one’s volition. A sophist would try to say EP means don’t discriminate against me because I drive a pickup truck and you’d rather I drive a Volvo. But that’s not EP.

  2. Adding more on the table is this article I saw on American Thinker http://www.americanthinker.com…..cause.html

  3. Goldwater paraphrased Thomas Jefferson, who argued that the only moral commercial transaction is one truly voluntary on the part of the buyer and the seller. That argument has an attractive leave-me-alone appeal to it; yet, the public policy of the nation since 1964 has unambiguously rejected it.

    Who needs rights when you have public policy…

    1. Exactly. Individual rights are inalienable and enduring when our system functions properly. When qualified by or converted to public policy, those diminished rights are on thin ice.

    2. “…Thomas Jefferson, who argued that the only moral commercial transaction is one truly voluntary on the part of the buyer and the seller…”

      Sage words.

      1. Your tu quoque is duly noted.

  4. Were this not the case, then nothing would prevent animal sacrifice, the use of mind-altering drugs, and even racial or gender or national origin discrimination in public accommodations and housing?all allegedly based on one’s claimed religious views.

    The tenets of my religion clearly mandate that dogs and cats live together.

    1. MASS HYSTERIA!

    2. I have more often seen instances of dogs and cats getting along in real life than I have of them fighting. So I don’t see where the problem lies with that.

    3. I guess the Judge is just fine with ignoring the free association issue. And apparently he also buys into the “public accommodation” fiction as well.

    4. Because being forced to participate in something you religiously object to, like a gay wedding, is the same as animal sacrifice. I think maybe the judge isn’t being entirely objective in his analysis here.

      1. Wait!!! Animal sacrifice is illegal? Since when? Please tell me i can still use orphans to sweep out my HVAC systems!

        1. Who cares about animals? Tlaloc won’t bring the rains to california because they haven’t offered up children in sacrifice.

          1. Anyone got some spare orphans?

            1. Passover begins tomorrow. Don’t forget to smear lamb’s blood on your doors so WTF doesn’t get your own kids by mistake.

            2. I’ve got a couple whose performance in monocle polishing has been substandard.

        2. What’s the difference between animal sacrifice and butchering for food?

          1. Not much. It reminds me of an episode of Buffy The Vampire Slayer where Buffy laments that she won’t have a Thanksgiving that year, and the ex-demon chick says “That’s too bad, I love a ritual sacrifice”. When the others object she says “To commemorate an event you kill and eat an animal…that’s a ritual sacrifice. With pie.”

          2. The intent behind the killing, duh. Don’t be an obsequious jerkface.

        3. It’s not illegal if you do it as a “crushing” video.

      2. If you are religiously objecting to gay wedding/marriage; then you are admitting that traditional marriage is an establishment of religion. Legally, I’m not sure you could argue both sides – that one limits your personal free exercise while the other must remain even though it is establishment.

    5. Your ideas intrigue me. Do you have a newsletter?

    6. OMGZ Animal sacrifice! This from a guy whose religion is fundamentally based on a HUMAN sacrifice.

    7. Join my religion!

      We have 52 saints. That means a guaranteed 3-day weekend all year long!!!!

      We don’t have a lot of fussy rules like so many other religions. Pretty much the only non-negotiable rule we have is tithing. As long as you give us our cut, we are good on just about anything else.

      And if you want some custom rules (like wearing flip flops in the office because of your religion) we can do that too. Sure it might take a bit more than just basic tithing to come up with a valid theological justification for whatever it is that you want, but I’m sure we can find one.

      1. LOL, are you the bass player for The Reverend Horton Heat? IIRC his name is Jimbo.

        1. No, but I love that song!

          I was called Jimbo way before I heard that song, but I play it for others all the time.

          https://www.youtube.com/watch?v=QocPtT-blXk

      2. I believe that’s a religion that fulfills the prophecy!

        Dare you speak its name?

  5. Since when is a private pizza joint a “public accomodation”? If they started a “No Homo Pizza Club” would that be alright? I get that the judge is arguing the legal aspects as they exist rather than the moral or ethical aspects, but all I’m seeing in this article is that the US has spent much of the past century whittling away at the rights protected by the Constitution.

    1. Since 1964, or whenever the relevant statutory language and legal precedent took effect. Probably later, now that I think about it. The feds had to litigate a couple cases and the judiciary had to adopt a sweeping new interpretation applying the notion to private businesses in direct contravention of the authors’ express promises. Just a guess.

      1. 1964 or so for the feds, but segregation itself was the state version of the public accommodation theory applied much earlier.

        1. This.

          Segregation was unconstitutional just like forced integration is unconstitutional when it comes to private property, freedom of association, and speech.

          Both are the state putting a gun to your head and saying “ACT THIS WAY OR ELSE”.

          I’m kind of disappointed that Napolitano didn’t bring up this issue, as this is the libertarian stance.

          This issue also shows to me how the mainstream media is a corrupt wing of the Democratic Party. Sometimes I begin to think maybe that idea is just in the heads of paranoid Republicans, then issues like this arise and I see how incredibly accurate that assessment is.

  6. That argument has an attractive leave-me-alone appeal to it; yet, the public policy of the nation since 1964 has unambiguously rejected it.

    Well, Judge Napolitano, “public policy” since 2001 has “unambiguously rejected” the notion that suspected terrists are exempt from constitutional protections. But, at least there, you have the good sense to recognize that it doesn’t trump people’s natural rights. It’s a shame you can’t apply that incisive reasoning unambiguously.

  7. “…you cannot choose your customers; they choose you.”

    I guess there are businesses out there that are happy to have less than all the customers they can find. I’ve just never worked for one.

    If all the federal and state public accommodation law were repealed today, would we really go back to segregated or denied services to customers ‘not like us’? The trillions in non-coerced international trade seem to indicate otherwise.

    1. And the segregated or denied services were mostly the result of Jim Crow LAWS, passed by the government to force everyone to go along so the bigots didn’t have to worry about competing with non-bigots.

      1. “Repealing public accommodation laws will lead to Jim Crow!” –proggy hysteria, probably

        1. Absolutely, they always overlook the fact that Jim Crow was implemented by government laws, not by people being free to do as they pleased.

          1. As with all things pertaining to progressive ideology, “Jim Crow” is just another shibboleth in their arsenal of arguments. There’s no granular conception of what it was or how it worked, just the understanding that they can lob it into arguments to advance their unstated but undeniable premise. Everything private must be rendered the purview of the public.

          2. Yep. Proggies claim that government ended segregation while ignoring that government mandated it, just as they claim that government ended slavery while ignoring that government enforced it.

            1. Everyone wants to believe they’d have been abolitionists, but if there’s a group less likely to have supported unqualified abolition, modern progressivism gives it a run for its money. These are a people so thoroughly obsessed with expanding the power of the feds at the expense of every other human endeavor that the notion of limiting its say in the slave trade would have been a heresy of their day. I have no doubt that a modern progressive would push to end the institution, in name of not in actuality, but would have insisted on a circuitous route and byzantine rules and regulations, none of which would ever sunset. We’d still have chattel slavery today and progressives would rabidly defend the necessity of it.

              1. Ha, yeah. When the proggies wail about states refusing to enforce federal laws and how awful that is, I like to ask them “you mean like the Fugitive Slave Act?”

          3. That’s because progressives are just incapable of grasping the distinction between government and private entities in general. How else could they come up with a phrase like “Robin Hood tax” with zero recognition of the irony?

            This occurred to me a few years ago just after the Citizens United decision. More than once, I heard prog friends link it to the Kelo v. New London case, as if both were part of some concerted right-wing attack. When I reminded them it was the justices who ruled against the City of New London who also ruled against the FEC, it just confused them. They could not see the consistency between the two.

      2. “Jim Crow LAWS…” Ya passed by conservative state governments, not the evil liberal federal govt—thank god for that fucking big government. Conservatives (and so-called “Libertarians” were just fine with that kind of “big government”, and somehow the “Marketplace” didn’t work—hmmm, you’d think all of those brave market-oriented whites in the south would have had the political power to change those laws. Or maybe Occam’s razor) they are simply racists.

    2. I have worked for a number of businesses that have structured things so they do not have to deal with particular clients, because the clients have been so difficult to deal with that their business is unprofitable and generally more trouble then it was worth.

    3. I have worked for a number of businesses that have structured things so they do not have to deal with particular clients, because the clients have been so difficult to deal with that their business is unprofitable and generally more trouble then it was worth.

      1. Heh, heh. I have a friend who runs a roofing company. One of the ways they stay busy in the winter is by shoveling snow off roofs. They run into a handful of people who bitch & complain about their bills and the time it takes to do the job. Oddly, when those people call the next year, the company is always “too busy” to work on their roofs.

        1. Eh, they can complain as long as they pay the bill. If they keep paying the bill I’ll keep taking their business.

      2. Back when Memphis was host to the Church of God in Christ (COGIC) national convention, the local businesses were so robbed blind that many restaurants simply closed for the entire week, and the hotels had to jack the rates up to insane levels just to cover the costs of the items that were stolen. Towels tend to walk off anyway, but these church goers would steal the comforters off the beds and pictures off the walls.

    4. I guess there are businesses out there that are happy to have less than all the customers they can find. I’ve just never worked for one.

      Businesses do that all the time — when said customers are costing money rather than giving the business profits. Going out of business entirely is an extreme version of firing said customers.

      Now, turning away profitable customers because of moral qualms about the ickiness of the customer’s views — rarer.

      1. There are customers who are not worth the time or effort. And there are customers who present a risk to the business, whether it be credit, legal, reputation, or otherwise. Sometimes it’s just best to say no.

    5. That’s one of the thing about this ridiculous panic that I find very tiresome. The owners of a little pizza shop are getting death threats because they answered a reporter’s hypothetical question about a non-existent gay couple having an imaginary wedding. Which proves, apparently, that gays are being lynched from coast to coast.

      1. That and the fact that the owner said they’d serve the gay couple if they walked in and ordered a pizza. They just didn’t want to cater their wedding.

        So worse case scenario, the gays in IN would only have to go hungry on their wedding day. Any other day, they could get a slice of pizza no problem.

        1. I’m fascinated by the idea that any woman, straight or lesbian, or gay man would ever hire a pizza place to cater their wedding reception.

          1. What if they’re gay Rastafarians with the munchies?

      2. It makes me wonder how many organizations the “reporter” contacted before he-she found someone who would make his-her story.

        1. Good question, I bet (s)he was really working the phones.

          “Cutts the butcher.”

          “Yeah, do you serve gays?”

          “Sure, if you provide the meat, I’ll prepare and serve it.”

          [click]

    6. If all the federal and state public accommodation law were repealed today, would we really go back to segregated or denied services to customers ‘not like us’?

      If we are being honest with ourselves, we have to admit that there probably would be some limited examples of discriminatory businesses on the basis of race, religion, sexual orientation, etc. It would probably be rare and I doubt those businesses could ever thrive, let alone expand to anything other than a very local level, but there are probably enough sympathizers in certain places to keep such businesses afloat out of a sense of solidarity. At least for a little while. But give it a generation, and my guess is they would effectively vanish completely.

      1. The smaller the community, the more likely this to happen and the more pernicious its effect. A handful of homophobic, antisemetic, anti-immigrant, anti-(some definable class of persons) in a city of millions is not likely to create hardship or worse.

        In a town measured in the hundreds or low thousands, quite the opposite. And as most people don’t like to rock the boat, they tend to go along with the behavior as, well, “not me!”

        1. In a town measured in the hundreds or low thousands, quite the opposite. And as most people don’t like to rock the boat, they tend to go along with the behavior as, well, “not me!”

          The reverse is more likely. In towns that small, businesses can’t afford to turn away customers and the owners are more likely to personally know the people coming into the store.

          1. Now, if people were only free to move to more congenial communities, this might not be a problem. . . .

    7. In Soviet Russia, customer choose you.

    8. “…you cannot choose your customers; they choose you”

      Bullshit.

      Many, many businesses turn away potential customers for all kinds of reasons. Just in my field, I have had an RFP for electronic medical records returned because my hospital wasn’t big enough, didn’t fit their profile. I don’t know a single physician who doesn’t filter new patients and turn some away for a variety of reasons.

      1. I’ve had this experience plenty of times as a researcher. I want to put together some new setup that requires some component from some company. Since it’s a proof of concept sort of thing, I’m only going to be ordering one from said company and it’s likely to be a custom design. Other customers may be ordering thousands of something the company can churn out with no development effort. Many companies will decide it’s just not worth it to spend the time and money to cater to my needs since I’m such a low-volume, pain-in-the-ass customer. Fortunately, there are few products/services provided by only a single firm.

    9. Business pretty much always choose their customers based on the price of their goods.

  8. “Do you really believe this?” “How is your refusal to sell goods or services to this person central to your religious beliefs?”

    “Believe’s got nothing to do with it.”

  9. The federal Civil Rights Act of 1964 prohibits discrimination in housing and public accommodations based upon race, gender, religion, beliefs, or national origin, and quite properly permits no religious-based defense.

    So, you have to accomodate someone regardless of their beliefs, but you can’t refuse based on your beliefs. Do I have that right?

    1. I’m still not past the part where a private business is regarded as a public accomodation. Shouldn’t that be a reference to something owned and/or operated by a government entity?

      1. Ah, UCS, you don’t understand. Bigots are icky (and I will stipulate that they are, in fact, icky). Therefore, private business should be regarded as a public accommodation because STFU, bigot!

      2. Agreed!

        “public accommodation” is apparently rather unfortunate legal term which does not mean what the it says, but seems related to “public house” (or “pub”).

        It seems there are three classes of places: “government owned “, “private places open to the public” and “private”. Any legal scholars out there to clarify this one?

        1. IANAL, but ‘public accommodation’ is just a bullshit term the government made up to justify reaching into private transactions and private property to cancel out the concept of free association.

          1. IAAL and and completely agree with your assessment, WTF.

            Lessons learned:

            1) You don’t need to go six figures in the whole to have common sense
            2) Law school, not for lack of trying, is incapable of depriving students of said common sense if they are predisposed to keeping it

      3. I’m still not past the part where a private business is regarded as a public accomodation.

        There is no private property. We only rent it from the people we pay property taxes to. If they say it’s public, then it’s public. They own it.

        1. Not to mention that the only reason you can do business is because you obtained a “business license” from the government, therefore whatever business you do is “public business” and falls under the control of the government.

          1. Free to ask permission and obey orders.

        2. There is no private property. We only rent it from the people we pay property taxes to.

          Rule number one of property law: you possess land at the concession of the sovereign.

          1. The first document in any chain of title is a grant from the sovereign.

            Some of the old ones are really cool – handwritten, signed by a Governor-General, that kind of thing.

      4. According to FindLaw.com, the following is the definition of “public accommodation”: “Generally speaking, it may help to think of public accommodations as most (but not all) businesses or buildings that are open to (or offer services to) the general public.”

        1. This.

          I wonder if the original poster is confused by the fact that Public Storage is a private company, too.

      5. Has nothing to do with the ownership of the business. Has everything to do with the operation and legal basis of Jim Crow laws.

        All the ‘separate accommodations’ that were the basis of tens of thousands of municipal/state ordinances, zoning, licensing requirements, tradition, habit, bigotry, KKK intimidation were explicitly renamed ‘public accommodations’ – and discrimination/segregation was now prohibited and thus a legal basis was created for blacks (or the federal govt on their behalf if KKK/WCC/SovCom intimidation was occurring) to challenge and break Jim Crow laws under the 14th Amendment.

  10. Since when is a private pizza joint a “public accomodation”?

    With respect to public accommodation laws, which are inherently opposed to any semblance of respect for private property, it is. I take the pov that no business is any more a “public” accommodation than my private residence is. Private property is private.

    1. As long as you don’t smoke a cigarette in it, rent out a room for a few days, or have your kids watch you play GTA.

    2. Can random people off the street legally walk into your private residence uninvited and hang out in the parlor as long as nobody shows up to tell them to leave?

      1. If I decide to allow that, then yes. If I do not wish it so, then no. What is your point?

      2. You could always say “Hey, this is a private residence, man.” Didn’t work too well for the Dude, but worth a shot.

      3. The “parlor”? What is this, 1870s England? Does your house have a drawing room as well, and a scullery, and a fainting room for the ladies?

        (just goofin’ around with you, in case you didn’t pick up on it)

    3. Koko/Rebel, Koko, this is the legal definition from the statutes–not a literal definition. Indiana’s law reads as follows:

      “public accommodation” means an establishment that caters or offers services, facilities, or goods to the general public.

  11. I knew this article was gonna be a problem when I didn’t see a bunch of questions.

  12. April Fools!

    Right?

    1. It has to be. It’s an article claiming to be by Andrew Napolitano written entirely in declarative sentences.

  13. i’m considering having all of my swine butchered at halal and kosher meat markets now.

    1. Public accommodation! They have no right to refuse services to you based on a religious objection, after all.

  14. A court having to rule on what violates free exercise is a violation of free exercise? That seems to render the clause moot. Another part of the Bill of Rights that is just an inkblot .

    1. And this, sadly, coming from a guy who I thought took the Constitution and the Bill of Rights seriously.

      1. Yeah, I guess he forgot about the constitutional ban on involuntary servitude and the entire freedom of association. Both of which are violated by the “anti-discrimination” laws he is referencing. The only group that must not discriminate is the government… sad part is they do the most discrimination around.

        1. I seriously think that Christian photographers and bakers ought to just keep a gun under the counter, loaded with blanks, and hand it to gay customers when they ask for service for their wedding. When the gay customer asks why you handed them the gun, simply say: “You have the choice of pointing the gun at me and pulling the trigger to force to serve them, and in doing so violate my beliefs, or you could sue me for discrimination and make the government point the gun at me instead. It is effectively the same thing to me, therefore we might as well settle this here rather than in court.” See how quick they run out of the building. Hell, crazy works for Muslims, why not give it a shot?

    2. In Judge Naps defense (on this point), the argument goes like this: “A court attempting to rule on a dispute based in the Free Exercise Clause requires the asking of questions and making of determinations as to the validity of the religion at issue. Doing so, by necessity, is a substantial interference in the free exercise of religion.” I would go one further and say that, when judge’s start picking and choosing what components of a religion are “valid” or which followers “validly hold to” such beliefs, they are coming dangerous close to violating the Establishment Clause as well (if a judicial authority is going to issue edicts that essentially reform a belief system and determine who validly follows such beliefs – all under government imprimatur – you’ve essentially “established” a religion).

      I’d much rather see judicial review of religious issues be limited to instances in which the State inhibits the free exercise of or establishes a religion, or when an individual commits some act of violence, fraud or deceit upon another person’s body or property and then tries to use religion as a shield.

      But my way doesn’t let the government tell you what to do in every aspect of your life so there’s fuckall chance of it happening.

      1. It’s not the validity of the religion that the courts question, it’s the claim by the defendant that he or she is a faithful practitioner of that religion.

        Say an employer refuses to provide Birth Control insurance, claiming it violates his Catholic religion, but it is discovered that he hasn’t been to Mass in 10 years, is living with a woman who is not his wife and with whom he is sexually active, and was recently seen stuffing himself with hamburgers on Good Friday. That’s not a ruling against Catholicism, it’s a ruling against his claim to be a practicing Catholic.

        1. It just means he needs more practice to get it right.

        2. You think the government has a right to rule on the validity of someone’s religious faith? Wow.

        3. When a court rules that a law requiring stores to be closed on Sunday is more important than a Jew’s decision to observe the Sabbath on Saturday and then work on his own property the day after, the government has definitely made a decision as to the validity of the religion.

  15. No one NEEDS free association. Do I have that about right?

    1. Absolutely.

      If you needed free association the government would provide it.

      1. Along with the appropriate ration card.

  16. a small group of Native Americans who had been fired from their jobs because drug tests revealed their use of peyote made applications for unemployment compensation, which the State of Oregon denied

    Is there any awful thing the War on Drugs can’t do?

  17. You know who else passed laws that were constitutionally suspect…

    1. FDR?

    2. Andrew Jackson?

    3. Pol Pot?

  18. I am completely shocked that the Judge would be so ambivalent toward the doctrine of “public accommodation”. It’s hard to tell – did he go so far as to support the idea?

    No matter how troubling, nor how unpopular, the only principled position is that anti-discrimination laws, to the extent that they constrain private behavior, are wrong. They violate the foundation of individual liberty: the rights of free association and property. They prevent people from living according to their conscience. They violate the NAP. They are indefensible and immoral.

    We must not wilt in the face of the sneering condescension we get when we present this principled position. When I present these ideas to people in a calm and respectful way, they usually come around to understanding, if not agreeing, this point of view. It lets them realize that there is another side to this debate and it’s not all knuckle-dragging bigots against good guys on white horses. It might even make them think.

    1. Re: FreeRadical,

      It’s hard to tell – did he go so far as to support the idea?

      I don’t think he is, F. He is clearly stating the fact that “public accommodation”is the current legal argument to support anti-discrimination laws when these conflict with the 1st and 4th Amendment. He is merely pointing out that legislating workarounds like the ones we’re discussing present a constitutional problem since, in effect, they purport to allow citizens to defend their violations of laws based on subjective arguments like “that is what I believe”, instead of simply fighting to repeal laws that are clearly unjust.

      What he does then is emphasize the importance of principled concepts like the sanctity of private property rights and the futility of those workarounds based on irrelevant consideratuons like religious beliefs. It is his estimation (as it is mine) that the war against statism cannot be won through these political games designed to pander to one or another groyp. Either politicians get on board with defending the universality of natural rights or they should just do nothing.

      1. OM, well put and I agree.

      2. So a partial pushback of public accomodation laws is worse that a complete one?

        Is that not a prime example of the perfect being the enemy of the good?

    2. Here is a problem I often run in to with people:

      They accept that there is no logical counter to my libertarian arguments on such issues. When I make an excellent point, they cede the argument by not continuing with it, but they still retain their beliefs because FEELZ.

      So frustrating.

  19. Question: Has Judge N. transformed from a principled defender of the Constitution to an attention whore trying to sell his books, or was he just an attention whore all along and we didn’t notice at first?

  20. ***OT Alert? POETRY SLAM? ***

    PSSST! Pass it on! Gwen puts out!
    (She would make a good hooker for the King’s DEA agents in Columbia!)

    Hump me, Dump me,
    Sit on my stick,
    Hump me, Dump me,
    Call me a prick,
    And all the King’s horses,
    And all the King’s men,
    Are ready to take on,
    Where I left off with Gwen!

  21. The compromise we ought to have, which is probably not what we will end up with, is that general discrimination against gays would be unlawful, but conscientious objections for specific symbolic or religious acts are permitted. So a grocery store or a restauraunt could not refuse to serve gays in general, but a wedding photographer with a moral objection to gay marriage could refuse to shoot a gay wedding.

    I suspect that a LOT of people out there are getting confused in assuming that this issue is about certian people wanting to refuse to serve gays entirely. But that’s simply not the case. We’re dealing with a small number of people who have moral objection to bay marriage specifically. There are ZERO cases going through the courts of people denying non-marriage-related services to gay people.

    1. Re: HazelMeade,

      The compromise we ought to have, which is probably not what we will end up with, is that general discrimination against gays would be unlawful, but conscientious objections for specific symbolic or religious acts are permitted.

      Do you know what has happened to conscientious objectors in the past?

      And why is it that one has to justify one’s objection? If I don’t want to serve someone, I would simply say “because I don’t want to”. How is the other person going to prove discrimination?

      1. Agreed.

        Without some indication of significant burden to the customer as well as the merchant, making the law state that a merchant cannot deny a gay man service only opens the merchant up to the potential for unwitting transgressions against the law.

        The late night gas station attendant says wild gesticulation and flippant hand gestures made him nervous, the flaming homosexual who just wanted a hoho.

        I’ve seen plenty of prison tattoos that would definitely fall across the line of good taste as well as religious symbolism. As long as the guy doesn’t have a GSW and I’m not tossing him out of the ER or refusing to sell him the last bottle of water in the Sahara, I should be free to interpret it either way.

        1. Grr…. edit button…

          The late night gas station attendant says wild gesticulation and flippant hand gestures made him nervous, the flaming homosexual who just wanted a hoho, says he’s a homophobe.

    2. Hi HazelMeade,

      I agree with you 100%, as well as with most of the commentary here that says the IDEAL solution would be total freedom of buyers and sellers alike, so long as they do not advertise one way and sell in the opposite way (that’s fraud). Yes, you are right, we have to compromise; Libertarians are too few. Narrowly drawn exceptions as you mention would be a good compromise. And you are again correct in saying, it’s not likely to go down that way.
      WHY will it not go down that way? The special interests called politicians, judges, and lawyers don’t like it that way? They LOVE big flowery words and grand ideas and VAGUE laws, so they can muck around! Worse yet, “compelling state interests” is not vague enough to give them enough wiggle room and fighting room and legal-charges-to-you-and-me room; they have to add to it, “Are your religious beliefs “sincerely held””? ? Judges now claim the power to read my mind, and see if my beliefs are sincere, or not! I sincerely believe that the lot of them are a bunch of arrogant power pigs!

    3. I suspect that a LOT of people out there are getting confused in assuming that this issue is about certian people wanting to refuse to serve gays entirely. But that’s simply not the case. We’re dealing with a small number of people who have moral objection to bay marriage specifically.

      I agree with you that it’s not. But, honestly, so what if it were? It’s their property. It’s their labor. Where the hell do people get the idea that somehow or another it’s their right to decide how others’ property may be disposed of.

  22. I’m pretty sure Boerne v. Flores did not hold the RFRA unconstitutional. It merely said that the federal RFRA was inapplicable to the states (the argument being that the 1A protects a minimum level, and RFRA protects more than that, and the incorporation of the 1A by the 14A enforces only the minimum protection on the states).

    Which is, of course, why states were motivated to enact state-level RFRAs.

    Claiming that the RFRA is constitutionally infirm is dubious at best and dishonest at worst.

    1. Yeah, the federal RFRA still applies to the feds.

  23. Napolitano is angry because he thinks Abraham Lincoln supported RFRA.

  24. Bear in mind that there are other laws, besides RFRA, which provide religious exemptions.

    So, let’s require that conscientious objectors stay in the Army instead of getting discharged. Let’s have conscientious objector applicants for naturalization promise to bear arms for the United States. Let’s subject the Amish to Social Security taxes. Let’s abolish the implied ministerial exemption in the Civil Rights Act so that the feds can punish religious groups who discriminate in selecting their clergy. Let’s force religious employers to hire people of other religions.

    These are all examples of existing exemptions which would have to be eliminated under Napolitano’s principles.

  25. RFRA is not unconstitutional. Federal RFRA is just not applicable to the States.

  26. Even Scalia’s opinion in Employment Decision, which overturned Justice Brennan’s Sherbert test in saying that it was not required by the Constitution, did not say that the Sherbert test could not be established by law. I struggle to see how a balancing test for free expression is unconstitutional. Indeed, it’s certainly the case that RFRAs have always lost the balancing test against non-discrimination laws, but that surely doesn’t mean that they or the test itself is unallowable.

    It simply means that the free expression part will tend to lose, as it always has, against these laws, but not against other laws where the compelling interest is lacking.

    1. On stronger ground when noting that the law would not have its support among conservatives if it weren’t useful to members of their own coalition, but I don’t think I’d oppose other civil liberties just because awful groups use them too.

      1. You mean if a muslim owner made all women wear hijabs and tried to use RFRA when christian women objected that all hell would be breaking loose? Color me shocked.

        1. No. The women, esp. in IN, would choose to shop elsewhere. Apple, Eli Lilly, Cummins, Salesforce, and the state of CT wouldn’t weigh in on the issue. Mike Pence wouldn’t even think about rewriting the law to include homosexuals *and* christians as protected from all other religions.

          The only way a Muslim shop owner in IN could loose similar amounts of hell would require stonings or dismemberment.

    2. I struggle to see how a balancing test for free expression is unconstitutional.

      Because your right to free expression is unconditional, not dependent on some government functionary finding that, on balance, you can do what you want.

  27. Wow this is so wrong. City of Boerne v. Flores invalidated federal RFRA applied to states. It didn’t say anything about states enacting their own RFRAs. That is WHY states enacted RFRA. And Romer v. Evans has nothing to do with the constitutionality of Indiana RFRA. Romer dealt with the specific exclusion of homosexuals from antidiscrimination ordinances.

    I would expect a former judge to have an idea what he’s talking about…

    1. Re: Ames jainchill,

      City of Boerne v. Flores invalidated federal RFRA applied to states.

      You’re missing the point. Napolitano’s mention of Boerne v Flores serves to show the futility of passing these laws that purport to protect a person’s justification for violating a statute if these statutes violate the constitution. He is criticizing these laws because they avoid the issue completely, which is property rights.

      1. It should be “if these [religious justification] laws”, not “if these statutes.”

      2. “In Boerne v. Flores (1997), the court found RFRA to be unconstitutional. . . . Thus, it is clear that one may not violate any law, state or federal, and escape the consequences of that violation on the basis that one’s religious views compelled the disobedience.”

        It’s quite clear what Napolitano is saying here: that religious exemptions by statute are unconstitutional. That is so utterly wrong. These laws are absolutely NOT futile. Again, Flores ONLY invalidated federal RFRA as applied to states. Federal RFRA can bind federal law, and state RFRAs can bind state law. It’s quite simple.

      3. And what do you mean about property rights? I agree that people should be free associate regardless of religious objections or any other objection. But that doesn’t mean that Napolitano isn’t wrong about the constitutionality of RFRA (at least in the real world).

  28. There are many misstatements in this piece, and it’s surprising, considering the source.

    The RFRA was not “invalidated.” If it had been, then Hobby Lobby could not have been decided the way it was. The Court only found that it didn’t apply to the states. It didn’t invalidate the whole law.

    A legislature, including Congress, surely can pass a law regarding the implementation of its own laws, with no Constitutional problems. “No law shall be construed to mean . . . ” Why wouldn’t a state have the authority to restrict its own laws if it considers them burdensome on a fundamental right?

    1. “There are many misstatements in this piece…”

      In addition, he’s wrong that the Indiana RFRA would permit anyone to successfully evade any anti-discrimination laws.

  29. What is “constitutionally infirm” is the idea that the federal government can force private parties to associate with each other against their will. Freedom of religion means that the government doesn’t discriminate based on religion; equal protection means that the government doesn’t discriminate based on arbitrary attributes. Neither of those regulate private conduct.

    Now, I’ll grant that there were good intentions behind the Civil Rights Act; I’ll even grant that it is possible that it achieved some good (although people have argued that discrimination would probably have disappeared faster without it). But the CRA was an exception. At this point, anti-discrimination acts are hardly necessary anymore and should be abolished. Most of the critics of the RFRA say that “it is bad for businesses to discriminate”. Well, if it is, that itself is an admission that anti-discrimination laws are not needed.

    However, having said that, if anti-discrimination laws are dropped for some groups, they need to be dropped for all groups. It would be a grave injustice to keep anti-discrimination laws based on religions and not have them based on sexual orientation, given the kind of persecution homosexuals have suffered at the hand of churches historically.

    Proponents of the RFRA are largely hypocrites and bigots; proponents of anti-discrimination laws are destructive of our liberties. Both sides are getting it wrong.

    1. Because the left wants 100% compliance.

      If the goal is to have EVERYONE to access goods and services without any substantial burdens, it’s not necessary to have 100% participation from the vendors. In most cases it will be easy to identify and avoid those who discriminate.

      Either the progs don’t realize this, or don’t care because they believe that anyone who thinks differently from them is a fucking moron who should be sued out of business.

      1. Your analysis of the left is correct. But the social conservatives are just as hypocritical: they want special legal protections for “religion” (by which they mean socially conservative Christianity), and they want the state to make life difficult for people and groups they disapprove of. Both the left and the right are trying to engage in social engineering, they simply differ on the details.

        1. Spoken like a progressive who thinks he favors liberty.

  30. This Indiana statute is arguably an effort to bring back the pre-1964 days with respect to
    sexual orientation.

    What the HOLY Fuck!?!

    The ’64 CRA (nor those before it) makes any distinction regarding sexual orientation. Any protection it does offer with respect to protections for sexual orientation are largely between (state) employers and employees and didn’t exist prior to 1979. Moreover, the RFRA has no specific language against sexual orientation. You are literally arguing pure intentions without any semblance of any letter of any law.

    So, Indiana passes a law protecting it’s states freedoms. The Judge finds the law unconstitutional, not because of any violation of actual constitutional right, but based on his inferences about an act that has, literally, nothing to do with the law. Thanks for shitting on the libertarian moment and wiping your ass with the Constitution “Judge”.

  31. I totally understand that doing drugs and saying “it’s my religion that requires it” not being specifically covered by law. (the case supporting legalization of drugs aside, I should say)

    What I don’t understand is this. I run a business. Let’s say I bake cakes, because this actually happened.
    1. I don’t want to sell you a cake because you won’t pay my price.
    2. I don’t want to sell you a cake ‘just because’. I won’t say why, maybe I just don’t like letting you buy my cakes.
    3. I don’t want to sell you a cake because you’re gay/black/white/Jewish/Catholic/Republican/etc.

    Why could #3 prohibited by law, while #1 and #2 are not?

    Freedom of association requires I should have the right to sell my goods and services to anyone I’d like for any reason I choose to disclose or not disclose.

    If I’d prefer to not serve gays, and I put a sign on my business that stipulates this, that offends some people, but it doesn’t impact anyone directly. A commercial transaction is simply an associative act.

    Now, as a reasonable person, and me being who I am, I’d boycott said business. I find discrimination to be a massive problem ethically. I think people who run their businesses this way to be idiots. On the other hand, if they want to run their business that way, who am I (who are any of us) to say they are not allowed to?

    1. Civil Rights Act of 1964 is the answer. I am sure you believe in the ‘Rule of Law’ generally, as a society we decided in 1964 that race, color, religion, sex, or national origin needed to be classes of people protected from discrimination in Public Accommodations and Housing, so businesses, schools, clubs, churches, libraries etc…. Why? Well, it was an attempt at protecting minorities from being excluded from society at large by the majority. This has been the law of the land. I guess you could say a random act of discrimination by one person on whatever basis probably won’t affect the discriminated, but if a large group of people chose to discriminate for the same reason like Race or Sex, then this can really affect the opportunities and quality of life of the minority. So historically this are classes of people that have experienced systematic discrimination. That’s the difference.

      1. I am sure you believe in the ‘Rule of Law’ generally, as a society we decided in 1964 that race, color, religion, sex, or national origin needed to be classes of people protected from discrimination in Public Accommodations and Housing, so businesses, schools, clubs, churches, libraries etc.

        The CRA has two separate components: one forces government to treat everybody equally, the other forces private businesses to treat everybody equally. Is there any evidence that forcing private businesses to treat everybody equally has actually had a positive effect? It doesn’t look like it has worked as intended.

        but if a large group of people chose to discriminate for the same reason like Race or Sex, then this can really affect the opportunities and quality of life of the minority. So historically this are classes of people that have experienced systematic discrimination.

        Historically, numerous minority groups have experienced such discrimination by mainstream American society, and the struggle to overcome it has generally been part of becoming a successful part of the American mainstream. The CRA was an attempt to legislatively short-circuit that struggle, and unlike all the minorities that preceded them, African Americans are still as poorly off relative to mainstream society as they were in the 60’s.

    2. It was in a way a sacrifice of individual liberty, the right to discriminate against people based on color, race, religion, sex, or national origin in your business or any organization open to the public was made illegal. If you look at it in a different way, it was a way to force people to do business with one another, to integrate in the realm of business. Or a way to force people to put differences aside and do business with one another. Certainly libertarian might object to the means, if you’re a strict, NAP kind of libertarian. If you’re more of a consequentialist libertarian you can probably be OK with the law if you look at the outcome, that it possibly accelerated the integration and acceptance of different minorities by the mainstream, by forcing interaction with them. In a way we made it illegal to judge whether or not to do business with a person based on superficial characteristics, prejudices etc. As a Naturalized American I look at the diversity in this country and it’s just amazing, it really is a miracle that such different peoples can live under the rule of one law and live in a relative stable, peaceful, free, and prosperous country.

      1. If you’re more of a consequentialist libertarian you can probably be OK with the law if you look at the outcome, that it possibly accelerated the integration and acceptance of different minorities by the mainstream, by forcing interaction with them.

        Except, if you actually look at the real world, it failed to do that. African Americans were making steady progress before the CRA, and with the CRA, all of that stalled or got worse again. On the other hand, numerous minorities managed to integrate and prosper in mainstream US society prior to the CRA. The problem with the CRA is that, while well intentioned, it didn’t work.

        But instead of admitting defeat, progressives escalated to affirmative action programs. When those didn’t work and made things even worse, they invented ever more bizarre theories about culture and hidden biases and structural problems and whatnot.

  32. 1. It seems that the argument is that Indiana Law should include a public accommodation protection for gays. This would get rid of the risk, right? The risk of people attempting to use the RFRA for general discrimination of gays and refusal to serve them.

    2. The reason the 1993 RFRA was struck down was because Congress exceeded its powers:

    “Because Congress’ powers under the Fourteenth Amendment are limited to remedying state failures to protect fundamental liberties and do not extend to defining the meaning or parameters of constitutional provisions, the court invalidated RFRA.”

    3. If 2 is the case. Are state RFRA laws that make gays a protected class unconstitutional? Not sure the difference between states doing it VS congress, legally speaking. Is it unconstitutional for states to do what Congress did, redefine the meaning of the “Free Exercise Clause”.

    4. Since Civil Rights Act 1964 does not protect gays, what would happen without the RFRA if a Wedding Photographer turns down a gay wedding and the gay sues for discrimination, does the gay person have legal grounds?

    Just read the news and Indiana Law will include protections for gays. I guess this is good?

    1. I guess this is good?

      Regarding point 1. No, this automatically places the burden of proof on the accused. A homosexual can claim discrimination without cost or basis and the onus is on the merchant to disprove the accusation, legally. The IN RFRA is implied/ostensibly a defense against such claims. IMO, if there is to be public accommodation, there must be some demonstration of disproportionate substantial burden and/or lack of free-market. A baker turning down a gay wedding is not a substantial burden if the homosexuals can simply walk next door to an equivalent baker or pick up the phone and call a baker down the street.

      However, this opens up the government to greater involvement in what constitutes a public accommodation and complex balances of substantial burden. Given their fucking up of said balance and (unchecked) public accommodations is/was the impetus for the law in the first place, I’m loathe to grant greater differentiating powers.

      1. I agree with you that on the narrow issue of a wedding photographer refusing a gay wedding is not substantial burden, and I hope we can find a legal way to balance this issue with the larger discrimination concern. However the point raised by Napolitano is that as the law stood without the protection for gays could be used in a broader way, so people could site religious reasons for refusing to serve gays period, right? Whether this is the intent of the law or not. How do you prevent a religious town from having the freedom to put sings saying we don’t serve gays? Are we creating more legal problems in attempting to solve a narrow situation? Or how do you prevent opening the flood gates of people citing religious exemptions from all kinds of things. I guess the judge would then say that doesn’t fall under Free Exercise of Religion because………..And he got into the PRACTICAL complication of Judicial Interpretation and the problems with that. So it definately introduces challenges. I mean this are tough issues, and it seems so hard to cut it in just the right way so that we have PERFECT justice.

  33. The next time SCOTUS hears a case on one of these religious freedom laws I’m sure it will clear up the ambiguity in the 1964 CRA with regard to sexual preference and gender identity by explicitly including them as protected groups.

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  35. I started with my online business I earn $58 every 15 minutes. It sounds unbelievable but you wont forgive yourself if you don’t check it out.
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  36. Isn’t it discrimination to even set a price for goods or services? If I want to buy a cake, but I can’t pay the asking price, then isn’t the baker actually only really serving a certain section of society and essentially discriminating against the poor? Aren’t price tags basically just tiny “You must earn this much in order to shop here” signs? If government can force business owners to accommodate everyone, then why can’t it compel them to barter with customers so everyone has an equal opportunity to the goods and services of said business?

    1. Dear Abby? Am I in the right place?!?!?

      Dear Abby, Dear Abby,
      My life is a mess,
      Bill Clinton stained my dress,
      I can’t get it off my hairy chest,
      ‘Cause my boyfriend’s a pest,
      I can’t talk of my sexual past,
      ‘Cause he gets all aghast!

      And Abby, my boyfriend and I have been “seeing” each other for 41 years!
      Now our home state will let us get gay-married, we’re a itchin’ to go get us a hitchin’!
      But boyfriend INSISTS on us getting gay-married in churches that don’t want us, by preachers that hate us, and get photoed by people that can’t stand us, and on and on and on!
      I think it’s ’cause his pet Hamster Huey and his Gooey Kabloooey rejected him in the 5th grade, and he’s NEVER gotten over it!
      Abbey, PLEASE don’t tell us to get therapy, we can’t afford it! We COULD afford it, but he gives all of our money to politicians who say they are a gonna fix all of this mess with more laws!
      So Abbey? Besides therapy, what can I do to help my boyfriend settle for getting gay-married by people who like gays?

      Love and Smooches, Dude B. Gay

      1. More specifically, that is, Dude B. Gay Butt Not Happy

  37. This editorial column by Andrew Napolitano is very disappointing as it appears many of the commentators to the article have a better grasp of law than he does.

    Contrary to a primary assumed premise in the column, people are not likely to be successful if they try to use the Indiana RFRA to evade an anti-discrimination law because the Indiana RFRA permits the imposition of government laws that pass strict scrutiny.

    1. Which is a big pile of cow flop because “strict scrutiny”, like so many other phrases, means whatever the judge(s) says / say it means, so good luck with that!

      They are not making ministers gay-marry people when it is against the minister’s religion, right? Simple solution for wedding photographers for example, then, is to declare themselves Ministers of The Holy Church Of Wedding-Photo Sacraments… Brother Maynard, Bring Forth The Holy Camera Please… On the Count of Three, Take the Holy Photo… And the counting of the count shall be three…

  38. Much as I hate them, I’m really hoping that Westboro Baptist Church will make a concerted effort to locate as many gay caterers, planners, photographers, and florists etc. as they can and “force” them to participate in a number of “God Hates Fags”-themed weddings.

    After all, the CRA of 1964 explicitly includes religion as a “do not discriminate” protected class, while it leaves out sexual preference.

    Perhaps then a few of them might realize how being compelled to participate in activities that are anathema to one’s personal beliefs (religious or other) is not a good thing.

    And really, just how many vendors would start discriminating (in the CRA sense, not in the generic “pick and chose” sense) even if it was 100% legal to do so?

  39. Shorter response:

    The Judge is wrong; you have freedom of association.

  40. Goldwater was absolutely right. Why are you taking Lyndon Johnson’s side over Goldwater’s? I don’t give a good goddamn if that’s what the people want – the Constitution and objective law says otherwise. Freedom of Association, Freedom of Contract.

  41. Exercise of Freedom of Association and Freedom of Contract have nothing to do with Civil Rights. “Civil” refers to the citizen’s relationship to the government, not those among private parties. All so-called anti-discrimination laws that enter the sphere of individual-to-individual relationships are contrary to the Constitution and to objective law. They are invalid.

    The Left in the end doesn’t even primarily care about ending “discrimination” – their organizing principle is to reinforce the government’s power to interfere in private relationships, especially economic ones. That’s what they’re all about. Which is why we should resist them across the board.

  42. SCOTUS struck down a portion of the federal RFRA as it applies to the states as an unconstitutional use of Congress’s enforcement powers.

    The validity of the RFRA as applied to federal law was not at issue in City of Boerne v. Flores. The RFRA was later upheld for federal law in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal.

    Thus a number of states determined to pass their own RFRA to provide the same protections and limitations that the federal RFRA could have provided had the SCOTUS (rightly, I think) not struck down that portion. I.e., the states were doing exactly what SCOTUS implied was their choice.

  43. In the end, this boils down to a fundamental question about balancing two constitutional rights that are placed in direct conflict by a law.

    Is a general secular-purpose law that requires someone to abandon their religious beliefs in order to operate a business discriminatory? Probably.

    Consider if a state or city decided that it had a compelling interest in ensuring that people ought to be able to avail themselves of a restaurant and thus passed a law requiring anyone operating a food service business must by law fully operate said business at least between the hours of 10 AM and 7PM, seven days a week, 365 days a year.

    A devout Jewish person clearly could not open and operate kosher deli under those terms. Chik-fil-a might simply close their stores in that state rather than open them on Sunday, let alone Christmas and Easter. The alternatives are to set aside their religious beliefs or not operating a business.

    What if a state law determined that since abortion rights are a fundamental constitutional and human right, that all licensed OBGYNs must perform abortion-related procedures on demand? Conscientious doctors would have no choice but to abandon their practices rather than perform the procedures.

  44. Under this law, the people using force to change someone’s behavior would not be the Christian, Muslim, or any other religious followers refusing some action. My advice is go elsewhere do not coerce people.

  45. Under this law, the people using force to change someone’s behavior would not be the Christian, Muslim, or any other religious followers refusing some action. My advice is go elsewhere do not coerce people.

  46. Under this law, the people using force to change someone’s behavior would not be the Christian, Muslim, or any other religious followers refusing some action. My advice is go elsewhere do not coerce people.

  47. So, I guess the judge supports the massive expansion of federal power under the commerce clause which the Supreme Court used to rule Title II (public accommodations) constitutional?

  48. The Judge is usually pretty good, I practiced law in NJ when he was on the App Div and he was well-regarded there and then. But he’s stretching things here, nobody’s encouraging discrimination against gays. Being gay is not a protected class. It’s a sexual choice. There’s no solid scientific proof of genetic origin, despite decades of gay scientists trying to prove it. There’s plenty of scientific study on childhood sexual trauma creating gay sexuality in adolescents and adults. But regardless of where it actually originates, being gay still is not a protected class because it’s not clearly beyond one’s choice, not like skin color or genetic gender.

    Wanting sympathy or empathy for gay sexuality will always fall on deaf ears outside an audience of gay men. It’s a bit childish. The only people whose sexual choice seems to matter in the great expanse of their waking hours are prostitutes and porn “actors”. I don’t care what gender you want to screw, and I don’t think you should care which gender I want to screw, either. It’s not about the screwing.

  49. For once I disagree with the good justice. I’m in line with the late Sen Goldwater’s take, and I believe the Public Accommodations section of the Civil Rights Act to be an overreach.

    Only government and monopolies (essentially public utilities) should be legally forbidden to discriminate. Everyone else should be free to discriminate to their heart’s content. Free markets will impose a harsh cost on discriminators and public opprobrium will marginalize the rest.

    1. Amen, I agree! Only other stipulation is, don’t be fibbing; that’s fraud. Don’t be putting up a sign that says, “All humans welcome here”, and then discriminate against me because I am an old human geezer. I haven’t met anyone yet who seriously disputes my human-ness.

  50. Napolitano apparently somehow missed the”Religious freedom” phrase in the law’s title.
    Apparently Christians can discriminate against their beliefs, but not psychotic gays.

  51. Liberals have about as much trouble COEXISTing with Christians as they do with unborn babies in their womb. There used to be more respect for people’s faith to the point where they wouldn’t even think of causing someone to go against the precepts of their faith – especially for something as inconsequential as a wedding cake.

  52. The only laws against discrimination should be ones preventing the state from doing it, ie prohibiting Jim Crow etc.. That is it.

    The state has no business telling private people who they can and cannot do business with. Indeed the state should not even have an opinion on it. And the state should also get out of the way and allow markets to work their magic, because a discriminating business is another businesses market opportunity.

  53. Because Congress’ powers under the Fourteenth Amendment are limited to remedying state failures to protect fundamental liberties

    But isn’t that exactly what RFRA was doing? They were protecting fundamental religious liberty.

    And if a law can’t overrule the constitution, how do provisions of the Civil Rights Act trump someone’s constitutionally granted freedom of both religion and free association?

  54. Although I hate the word usually, “collectively” this is the best bunch of comments ever.

    The quality of the analysis, the lack of personal attacks, and I’m sure not coincidentally, no appearances from Botard, Shreik, etc. have made this a pleasure to read top to bottom.

    A hearty (collective) FTW!

  55. How is your refusal to sell goods

  56. i respect religious rights. that said, there is a real and fundamental problem with discriminating against gays on religious grounds. just as straight people are born straight, gay people are born gay. not everyone understands or believes that, but i have known many gay people over the years and not one of them ever chose to be gay or changed how they felt at any point in their entire lives. straight people dont “choose” to be straight either. nature determines all of that by itself

    discriminating against something inborn that people cannot change about themselves is a basic civil rights violation. if you would not support discriminating against a race based on religious grounds, doing so against a particular orientation falls into the same category

    as much as i support religious freedom in the US, i will not support violation of any other basic civil rights in pursuit of that, and i will work to ensure that my fellow fully equal human beings are not treated unfairly because they were born to be romantically and physically attracted to the “wrong” gender

    1. You don’t prove “born this way” by feelings.

  57. As much as I believe in a person’s right to behave as they please so long as it does not harm others, I also believe that a private business has the right to refuse service to anyone for any reason. This is especially true if the business is operated out of your home.
    Even in rural communities, a person would be hard pressed to find a business that is a true monopoly and does not have competition. For every business that would deny service three more would be willing to provide that service. The free market would then reward or punish businesses according to public opinion of the establishment. If a business was seen as judgmental and abusive to members of the community, their business would suffer and they would be punished financially. People are not suffering any real harm by the refusal of a baker to bake their wedding cake or a florist to make their flower arrangements or the fact that they can’t rent this particular lodge for their wedding. There are plenty of other options available.

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