Politics

[IrishLax]

I think I was pretty clear how it was relevant when I mentioned that he wouldn't have been able to pursue his work if his suppliers and government had the right to discriminate against him. You conveniently left that out of the portion you quoted.

I'll break it down further. If his local government gave his suppliers the right to stop all deliveries. I know you love using this same worn out photographer of a gay wedding scenario, but that is not as common as service companies using suppliers. If Sysco and US Foods (they own 3/4 of the food distribution market) decided they wanted to take a religious stance and refuse delivery to any gay owned business. How would those businesses even stay alive?

Maybe I'm misunderstand this, but isn't what I bolded completely implausible and wouldn't stand up in court? Don't you have to show how exactly the action (selling foods to a business) unreasonably burdens a specific religious belief? That's not possible in the above.

 

[woolybug25]

Maybe I'm misunderstand this, but isn't what I bolded completely implausible and wouldn't stand up in court? Don't you have to show how exactly the action (selling foods to a business) unreasonably burdens a specific religious belief? That's not possible in the above.

How wouldn't it? They just have to show a reasonable belief that the restaurant served gay couples for events they do not religiously agree with (ie wedding reception, adoption meetings over lunch, etc). The burden of proof lies with the person being discriminated, not the entity denying service.

 

[IrishLax]

How wouldn't it? They just have to show a reasonable belief that the restaurant served gay couples for events they do not religiously agree with (ie wedding reception, adoption meetings over lunch, etc). The burden of proof lies with the person being discriminated, not the entity denying service.

That's incorrect. It lies with the person trying to exercise the law. And courts have been consistently stringent on it's interpretation.

So for starters, everywhere in the country that doesn't have a local law that makes sexual orientation a protected class these hypothetical companies could already be doing what you're hypothetically suggesting. They don't, because no major business would operate that way, but that's besides the point.

Now, if they randomly decided to adopt terrible business practices and violate non-discrimination laws in some places on account of religious beliefs citing a RFRA... it would be those companies trying to utilize the RFRA that would have the burden of proof.

Again, I understand where everyone is coming from on this law and I mostly agree, but a lot of the doomsday scenarios don't really add up... and for most of the country laws like this don't change the status quo at all because sexual orientation isn't a protected class so people/businesses are already free to discriminate as much as they want. And they don't.

 

[woolybug25]

That's incorrect. It lies with the person trying to exercise the law. And courts have been consistently stringent on it's interpretation.

So for starters, everywhere in the country that doesn't have a local law that makes sexual orientation a protected class these hypothetical companies could already be doing what you're hypothetically suggesting. They don't, because no major business would operate that way, but that's besides the point.

Now, if they randomly decided to adopt terrible business practices and violate non-discrimination laws in some places on account of religious beliefs citing a RFRA... it would be those companies trying to utilize the RFRA that would have the burden of proof.

Again, I understand where everyone is coming from on this law and I mostly agree, but a lot of the doomsday scenarios don't really add up... and for most of the country laws like this don't change the status quo at all because sexual orientation isn't a protected class so people/businesses are already free to discriminate as much as they want. And they don't.

I'm sorry, but I don't agree with this. If Sysco decided to not deliver to gay-owned restaurants and cited the RFRA as their reasoning, that would be that. If restaurants had a problem with it, they would need to dispute it through the court of law. There is no reference in the law that forms need to be filled out, or anything filed with the state in order to take advantage of it on the front end. You simply discriminate and if the person has issue, it's their burden to prove that the company/person does not have the necessary prerequisites for the law.

Sure, sexual orientation isn't a protected class (which I also disagree with, but that's another subject) but there is a big difference between "not having protections" and "state sponsored discrimination". One is simply an error of apathy and the other is a direct permission. Big difference.

 

[ND NYC]

can someone summarize the issues, key players, facts on this whole Indiana law, pence, ncaa for me.

out of pocket when this all broke...

no italics.

 

[IrishLax]

I'm sorry, but I don't agree with this. If Sysco decided to not deliver to gay-owned restaurants and cited the RFRA as their reasoning, that would be that. If restaurants had a problem with it, they would need to dispute it through the court of law.

Yes but:
1) Sysco could already legally do this regardless of a RFRA in most places in this country, and they don't, so it's a far-fetched hypothetical virtually meritless of discussion.
2) Even is Sysco did it, the only places where the RFRA would apply would be in ones where it's trying to supersede an existing local law that protects sexual orientation.
3) Given the scenario in #2, the company sues under the existing law of protection -- not the RFRA -- and then Sysco would have the "burden of proof" to justify their actions under the RFRA. There is no onus on the plaintiff in this scenario, the burden of proof under a RFRA is always on the one attempting to utilize that law as legal justification to get around another rule/law. It's an affirmative defense only.

There is no reference in the law that forms need to be filled out, or anything filed with the state in order to take advantage of it on the front end. You simply discriminate and if the person has issue, it's their burden to prove that the company/person does not have the necessary prerequisites for the law.

Sure, sexual orientation isn't a protected class (which I also disagree with, but that's another subject) but there is a big difference between "not having protections" and "state sponsored discrimination". One is simply an error of apathy and the other is a direct permission. Big difference.

I don't understand this binary. Every person/company in this country is allowed to discriminate based on anything that isn't protected by non-discrimination laws. A law that says "you don't have to do something if it's against your religion" does literally nothing to affect someone's ability or inclination to discriminate against an unprotected class.

 

[NDgradstudent]

I think I was pretty clear how it was relevant when I mentioned that he wouldn't have been able to pursue his work if his suppliers and government had the right to discriminate against him. You conveniently left that out of the portion you quoted.

I'll break it down further. If his local government gave his suppliers the right to stop all deliveries. I know you love using this same worn out photographer of a gay wedding scenario, but that is not as common as service companies using suppliers. If Sysco and US Foods (they own 3/4 of the food distribution market) decided they wanted to take a religious stance and refuse delivery to any gay owned business. How would those businesses even stay alive?

I use the photographer at a gay wedding scenario because actual people, Jonathan and Elaine Huguenin, were fined around $6,000 by the state of New Mexico for refusing to photograph a gay wedding ceremony. You speculate about suppliers not delivering to gay people: has this ever actually happened? Do you really think that every supplier in the country would turn down money from somebody who wants their products? We are talking at most about an incredibly tiny minority of such suppliers. There are so many other suppliers available to provide whatever product the gay business owner wants. Just like with the New Mexico case, however, the purpose is not to meet a need but to make a point: anybody who holds the orthodox Christian view of sexuality and marriage is wicked and must be punished by the state.

If one supplier does not deliver items to a gay business owner, the business owner can get them from somewhere else. Nobody is put it prison or fined or put out of business; the gay business owner is perhaps inconvenienced. If some Christian (or gay, or whatever) business owner is forced to violate their conscience, they are more than inconvenienced, in my view. They are punished by the state. The reason that the gay business owner should accept that some supplier, however wrongly, should be allowed refuse to provide him with items (again, when has this ever actually happened?) is that if he has a religious objection to serving someone else, he can invoke the RFRA, too.

 

[IrishLax]

can someone summarize the issues, key players, facts on this whole Indiana law, pence, ncaa for me.

out of pocket when this all broke...

no italics.

1) Indiana passed a religious freedom law that is similar to many existing laws, including a Federal law.
2) One key difference is that it explicitly applies to not just individuals (whose religious rights make sense to protect) but corporations.
3) This has lead a lot of people to decry the law as allowing companies to discriminate and claim "religion" as the reason.
4) The main people up in arms are the LGBT community, because they see laws like this as a way for companies to discriminate against gays, etc.
4A) A big issue is that sexual orientation isn't a Federally protected class, so in many places they can be legally discriminated against regardless of any laws like this. However, there are many states as well as localities with laws that protect sexual orientation, and in those places this law is 100% applicable.
4B) Most people in an attempt to illustrate why this law is bad have come up with hypothetical examples that either completely implausible or otherwise flawed such that about 80% of the discussion on this topic isn't about the law itself it's about how it may/may not be applied.
5) The Indiana lawmakers say that it's not a discrimination law but more intended to protect employers/corporations from potential obligations (i.e. Obamacare contraceptive) where the obligations would be against sincerely held religious beliefs.

 

[Cackalacky]

Yes but:
1) Sysco could already legally do this regardless of a RFRA in most places in this country, and they don't, so it's a far-fetched hypothetical virtually meritless of discussion.
2) Even is Sysco did it, the only places where the RFRA would apply would be in ones where it's trying to supersede an existing local law that protects sexual orientation.
3) Given the scenario in #2, the company sues under the existing law of protection -- not the RFRA -- and then Sysco would have the "burden of proof" to justify their actions under the RFRA. There is no onus on the plaintiff in this scenario, the burden of proof under a RFRA is always on the one attempting to utilize that law as legal justification to get around another rule/law. It's an affirmative defense only.



I don't understand this binary. Every person/company in this country is allowed to discriminate based on anything that isn't protected by non-discrimination laws. A law that says "you don't have to do something if it's against your religion" does literally nothing to affect someone's ability or inclination to discriminate against an unprotected class.

Except that as I understand it, the new Indiana language, which is different from other state and federal RFRAs provides LEGAL PROTECTION for Sysco (or whomever) from these lawsuits if they claim to choose it as a DEFENSE. It basically legalizes what may or may not have been common practices as you state. The burden of proof now lies with the prosecuting side to prove discrimination, which is very hard to do.

 

[IrishLax]

I use the photographer at a gay wedding scenario because actual people, Jonathan and Elaine Huguenin, were fined around $6,000 by the state of New Mexico for refusing to photograph a gay wedding ceremony. You speculate about suppliers not delivering to gay people: has this ever actually happened? Do you really think that every supplier in the country would turn down money from somebody who wants their products? We are talking at most about an incredibly tiny minority of such suppliers. There are so many other suppliers available to provide whatever product the gay business owner wants. Just like with the New Mexico case, however, the purpose is not to meet a need but to make a point: anybody who holds the orthodox Christian view of sexuality and marriage is wicked and must be punished by the state.

If one supplier does not deliver items to a gay business owner, the business owner can get them from somewhere else. Nobody is put it prison or fined or put out of business; the gay business owner is perhaps inconvenienced. If some Christian (or gay, or whatever) business owner is forced to violate their conscience, they are more than inconvenienced, in my view. They are punished by the state. The reason that the gay business owner should accept that some supplier, however wrongly, should be allowed refuse to provide him with items (again, when has this ever actually happened?) is that if he has a religious objection to serving someone else, he can invoke the RFRA, too.

This. IMO, people need to discuss more of the real (either the language of the law or plausible situations affecting sole-proprietor or otherwise privately owned business) instead of the outlandish. It's completely implausible to think a publicly traded corporation could ever use this law, or that this law could be used for rampant macro-scale mass discrimination.

 

[Emcee77]

I'm sorry, but I don't agree with this. If Sysco decided to not deliver to gay-owned restaurants and cited the RFRA as their reasoning, that would be that. If restaurants had a problem with it, they would need to dispute it through the court of law. There is no reference in the law that forms need to be filled out, or anything filed with the state in order to take advantage of it on the front end. You simply discriminate and if the person has issue, it's their burden to prove that the company/person does not have the necessary prerequisites for the law.

Sure, sexual orientation isn't a protected class (which I also disagree with, but that's another subject) but there is a big difference between "not having protections" and "state sponsored discrimination". One is simply an error of apathy and the other is a direct permission. Big difference.

That's incorrect. It lies with the person trying to exercise the law. And courts have been consistently stringent on it's interpretation.

So for starters, everywhere in the country that doesn't have a local law that makes sexual orientation a protected class these hypothetical companies could already be doing what you're hypothetically suggesting. They don't, because no major business would operate that way, but that's besides the point.

Now, if they randomly decided to adopt terrible business practices and violate non-discrimination laws in some places on account of religious beliefs citing a RFRA... it would be those companies trying to utilize the RFRA that would have the burden of proof.

Again, I understand where everyone is coming from on this law and I mostly agree, but a lot of the doomsday scenarios don't really add up... and for most of the country laws like this don't change the status quo at all because sexual orientation isn't a protected class so people/businesses are already free to discriminate as much as they want. And they don't.

Thanks for the hypothetical, wooly. I love this debate and I think this shows the problem with this law: we just don't know how an Indiana court would interpret it.

They way I think it would work is basically as follows: Sysco stops delivering to Bill's Barbecue because it catered a gay wedding.

As Lax pointed out, there is no law in IN specifically prohibiting sexual-orientation discrimination (UNLIKE in New Mexico ... critical distinction from the NM photog case). It still seems to me that Bill's Barbecue would have some legal cause of action against Sysco for doing this, but I'm not really sure what it is. Let's assume there is one, and Bill's uses it to sue Sysco.

Sysco cites the Indiana RFRA as a defense, saying that it stopped selling to Bill's because it knew its products would be used in gay weddings and being forced to supply a restaurant that catered gay weddings would substantially burden its exercise of religion.

Here's where it starts to get tricky. The statute says:

"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 (2) is the least restrictive means of furthering that compelling governmental interest."

This language was developed for the older versions of the RFRA which only applied to government action, not private action. However, the Indiana RFRA, by its own terms, can be used as a defense in a private lawsuit. It might be that, under the Indiana RFRA, the Indiana court deciding the case is a "government entity" to which the statute applies (the definition of government entity is vague). So it seems to me that, once Sysco invokes RFRA as a defense ("Judicial imposition of the remedy Bill's Barbecue seeks in this case would substantially burden Sysco's exercise of religion, in violation of RFRA!"),** Bill's must explain to the court's satisfaction that, by granting the relief it seeks, the court would NOT violate RFRA because the court's action is narrowly tailored (i.e., there is no less restrictive alternative) to a compelling state interest.

I have no idea what the outcome of that analysis would be (especially because I am not sure what the underlying cause of action is). Some judges would probably say that preventing discrimination is a compelling state interest, and there is no less restrictive alternative than preventing Sysco from discriminating. Other courts might say that there is no compelling state interest served by forcing Sysco to sell to Bill's in violation of its religious beliefs; Sysco should have the right to do business or not with whomever it pleases.

This is why the law is scary to gay people and gay rights advocates. In the particular political climate of a state like Indiana, in the wake of the Hobby Lobby decision, we just don't know how the Indiana RFRA would be interpreted. It's not exactly a license to discriminate, but it may embolden people to discriminate.

**Under last summer's Hobby Lobby case, courts won't get into whether an action really "substantially burdens" religion or whether the impact on the believer is too weak or "attenuated", as lawyers say, to substantially burden his exercise of religion. We sort of take a sincere religious believer at his word on that.

 

[IrishLax]

Except that as I understand it, the new Indiana language, which is different from other state and federal RFRAs provides LEGAL PROTECTION for Sysco (or whomever) from these lawsuits if they claim to choose it as a DEFENSE. It basically legalizes what may or may not have been common practices as you state. The burden of proof now lies with the prosecuting side to prove discrimination, which is very hard to do.

OK then I might be wrong on this, but I think we're saying the same thing. Maybe not. That's what I meant when I said it can be used as "affirmative defense"... in that scenario, the burden of proof is still on Sysco to justify the use of the law.

They can't hypothetically, say "BLAH BLAH BLAH RFRA PROVE ME WRONG" they have to say "I'm exercising my rights under the RFRA because ... is against our sincerely held religious beliefs of ... "

And the whole thing is ridiculous because there is absolutely no way that a publicly traded company could use the law. A public entity cannot have "sincerely held religious beliefs", in direct contrast to say the photographers in New Mexico.

 

[NDgradstudent]

can someone summarize the issues, key players, facts on this whole Indiana law, pence, ncaa for me.

out of pocket when this all broke...

no italics.

I can give you the facts, but in the interest of disclosure you can probably tell by my other posts I strongly support the new law.

Prior to 1963, the Supreme Court rarely granted religious exemptions to generally applicable laws. This was in part because up until 1940, it was only though to apply to the federal government and not to the states, but usually the states were the ones "burdening" religious practice. In 1878, for example, the Court held that Congress could consistent with the Free Exercise Clause forbid polygamy in the Utah territory. There were very few other federal Free Exercise claims in this period.

In 1963, in Sherbert v. Verner, the Court held that even generally applicable laws that incidentally burden religious exercise could violate the Free Exercise Clause. The case concerned a Seventh-Day Adventist who was unwilling to work on Saturday, fired, and then denied unemployment benefits. The Court held that she must receive the benefits and introduced the "Sherbert test": the government can only substantially burden religious practice if the burden (1) pursues a compelling government interest and (2) is the least restrictive means of achieving that interest. As a result of this test, many religious claimants won cases in the 1960s and 70s.

Many conservatives, particularly originalists, believed that the test was not an accurate interpretation of the Free Exercise Clause. In 1990, in a case called Employment Division v. Smith, the Court held that there was no constitutional obligation for states to grant exemptions from generally applicable laws. The Sherbert test was thus discarded.

Congress did not like this ruling, and so passed the federal Religious Freedom Restoration Act (RFRA) in 1993. This attempted to re-instate the Sherbert test: Congress was saying that federal laws needed to pass a very high bar if they burdened a person's religious practice. RFRA was sponsored by Ted Kennedy and Orrin Hatch; it passed 97-3 in the Senate and by voice vote in the House. It was relatively uncontroversial. In 1997, the Court held that RFRA could not apply to states and localities, but only to the federal government. Many states subsequently passed their own RFRAs.

So flash forward to last week. Indiana passes its own RFRA, said to be radically different from the federal RFRA and other state RFRAs. Actually reading the law reveals it is basically the same as the other RFRAs. Some object that Indiana’s RFRA protects "corporations," but a perusal of the Dictionary Act suggests that the federal RFRA does too (only two Justices dissented on this point in the Hobby Lobby decision). "Person" is defined to include corporations in federal law, unless a particular statute defines it differently for purposes of that statute. The federal RFRA does not define "person" differently (this is all explained in the Hobby Lobby opinion). Some object that Indiana’s law provides a defense against a private discrimination suit, while the federal RFRA is said not to do so. In fact, there is disagreement about whether or not the federal RFRA provides such a defense: four of the six circuits to confront the question have said that it does. Finally, some people have said that RFRAs in other states, such as Illinois or Connecticut, do not really matter because these states include “sexual orientation” in their anti-discrimination laws. In reply, note that in none of the states that both have RFRAs and forbid discrimination on the basis of sexual orientation is the state's RFRA inapplicable to its anti-discrimination law, so the RFRA can still be used as a defense (not an immunity, simply a defense) from discrimination claims. Indiana does not include sexual orientation in its anti-discrimination law, but some local ordinances, including South Bend, do. There is no question that the RFRA will provide a defense against some claims under anti-discrimination law, but again a defense is not the same as an immunity. Nor does this make Indiana's RFRA different from those in other states.

 

[Emcee77]

And the whole thing is ridiculous because there is absolutely no way that a publicly traded company could use the law. A public entity cannot have "sincerely held religious beliefs", in direct contrast to say the photographers in New Mexico.

I have to point out that the bolded is not at all clear under Hobby Lobby.

However, I agree with you that wooly's Sysco hypothetical is incredibly unlikely, just from a practical perspective. A company like Sysco would not be likely to do that, and if a particular branch manager "went rogue," his bosses would step in before any litigation reached a verdict.

Still, I think it's a good hypothetical just to show why people are alarmed by the law.

 

[IrishLax]

I have to point out that the bolded is not at all clear under Hobby Lobby.

However, I agree with you that wooly's Sysco hypothetical is incredibly unlikely, just from a practical perspective. A company like Sysco would not be likely to do that, and if a particular branch manager "went rogue," his bosses would step in before any litigation reached a verdict.

Still, I think it's a good hypothetical just to show why people are alarmed by the law.

Hobby Lobby ain't publicly traded, homie. And that was a huge factor in the ruling.

 

[Cackalacky]

OK then I might be wrong on this, but I think we're saying the same thing. Maybe not. That's what I meant when I said it can be used as "affirmative defense"... in that scenario, the burden of proof is still on Sysco to justify the use of the law.

They can't hypothetically, say "BLAH BLAH BLAH RFRA PROVE ME WRONG" they have to say "I'm exercising my rights under the RFRA because ... is against our sincerely held religious beliefs of ... "

And the whole thing is ridiculous because there is absolutely no way that a publicly traded company could use the law. A public entity cannot have "sincerely held religious beliefs", in direct contrast to say the photographers in New Mexico.

Right... we are probably saying the same thing. This law is more apt to be an issue with smaller, local companies that are not privately traded who have a much more narrow client base and can take these "moral stances" with their local clientele without significant loss to their revenue stream.

 

[Emcee77]

Hobby Lobby ain't publicly traded, homie. And that was a huge factor in the ruling.

Yes, but for that reason the court didn't have to decide whether a publicly traded company can have sincere religious beliefs, and it did not decide that. I suppose I disagree that it was "a huge factor" in the ruling. The court simply declined to decide whether the ruling would apply to a publicly traded corporation.

But if a large closely held corporation like Hobby Lobby can have religious beliefs, it makes little sense to say that a large publicly traded corporation, owned principally by a few people, can't. Just as an example off the top of my head, I know from my work experience that the insurer CNA is a publicly traded corporation but it's principally owned by a small group of people. Why should it be treated differently from Hobby Lobby? The distinction makes no sense.

In the context of the IN RFRA debate, the Indiana law defines a "person," in part, as:

(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

So it seems that, to take my example of CNA, under RFRA, CNA could refuse to issue a CGL policy to a wedding venue that performed gay weddings, and RFRA would apply as long as the individuals in "control and substantial ownership" have sincere religious beliefs that are substantially burdened. What does that even mean? So if the president is the only person whose religious beliefs are burdened, and he owns 10% of the company, is that "control and substantial ownership"?

If you are trying to say that Hobby Lobby doesn't apply, I would disagree. I mean, it doesn't apply directly, obviously, but it is clearly relevant and would clearly inform a court's analysis of the issue.

 

[ND NYC]

thx LAX and NDgradstudent for the summaries.

much appreciated!

 

[Whiskeyjack]

I have no idea what the outcome of that analysis would be (especially because I am not sure what the underlying cause of action is). Some judges would probably say that preventing discrimination is a compelling state interest, and there is no less restrictive alternative than preventing Sysco from discriminating. Other courts might say that there is no compelling state interest served by forcing Sysco to sell to Bill's in violation of its religious beliefs; Sysco should have the right to do business or not with whomever it pleases.

Based on RFRA precedence, here's my understanding of the test that would be used:

• Is this a substantial burden on the person's/ business' sincere religious beliefs? This is where consistency becomes relevant. If a restaurant owned by Catholics has no problem catering a divorce party or the reception for a 2nd marriage, but they balk at serving a gay marriage, then a court could easily decline to apply the RFRA because the burden is apparently not substantial.
• Is a compelling governmental interest at stake here? Ensuring that all citizens have sufficient access to public accommodations will almost always be considered so.
• Is judicial compulsion the least restrictive means available to further that interest? This is where alternatives are relevant. If there are many other businesses willing and able to accommodate the plaintiff, then the case for compulsion is weak. But if the business in question is the only provider in town, then an appeal to RFRA is likely to be denied.

Part of the problem here is that Indiana's law is a direct reaction to Elane Photography v. Willot, which is a very poorly reasoned case. The lesbian couple at issue actively sought out the Huguenins to "test" whether fundamentalist Christians would be willing to shoot a (newly legalized) gay wedding, despite having many other options. And the New Mexico Supreme Court broke with the precedent established by virtually every other RFRA state and declined to apply its own RFRA on a technicality (because "the government [wasn't] a party.")

The Huguenins were targeted by gay rights activists and then denied protection under a clearly relevant state statute. Indiana sought to ensure that couldn't happen in the Hoosier State. But instead of reporting on the law in light of its obvious lineage, or how it might be amended to provide reciprocal protections for dissenting gay proprietors, virtually every one commenting on it has made absurd comparisons to Jim Crow.

 

[IrishLax]

Yes, but for that reason the court didn't have to decide whether a publicly traded company can have sincere religious beliefs, and it did not decide that.

Further, if a large closely held corporation like Hobby Lobby can have religious beliefs, it makes little sense to say that a large publicly traded corporation, owned principally by a few people, can't.

IMO, and I could be wrong, but I don't think this is true. I'm fairly certain that publicly traded companies by virtue of having "liquidity" of ownership cannot claim to have religious beliefs... because whose beliefs would they be? I'm not talking about s-corps with stock that is held by a small amount of people, I'm talking about true public entities. Even if those entities are 99% owned by couple people with staunch beliefs... my understanding is that the 1% that can change hands at any time undermines that. At least when discussing the Hobby Lobby case with lawyer people I remember that being a sticking point.

For example, Notre Dame can have religious beliefs... as can Georgetown, Brandeis, and Liberty. But a public school like Purdue could never even attempt to utilize a law like the Indiana RFRA, regardless of the composition of the board of trustees was or who the president of the university is at the time.

Just as an example off the top of my head, I know from my work experience that the insurer CNA is a publicly traded corporation but it's principally owned by a small group of people. Why should it be treated differently from Hobby Lobby? The distinction makes no sense.

Because CNA itself is 90% owned by a holding company and there's the other 10% to consider.

In the context of the IN RFRA debate, the Indiana law defines a "person," in part, as:

(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

So it seems that, to take my example of CNA, under RFRA, CNA could refuse to issue a CGL policy to a wedding venue that performed gay weddings, and RFRA would apply as long as the individuals in "control and substantial ownership" have sincere religious beliefs that are substantially burdened. What does that even mean? So if the president is the only person whose religious beliefs are burdened, and he owns 10% of the company, is that "control and substantial ownership"?

Well, shit. Now I get to the end and I think I'm wrong and you're right. Because "substantial ownership interest" is pretty vague. Woups.

Still don't think CNA works, because the "substantial ownership" seems to be a holding company and not an individual(s), but I definitely didn't read the law correctly.

 

[Whiskeyjack]

On the last page, I linked to an article from a celibate Catholic lesbian writer that I have great respect for. Here's an article she just published titled "Three Very Small Thoughts About (the Debate Over) Indiana's RFRA":

1. Cooking is an art, cakes are art, compelled creation of beauty is compelled speech. I feel like the denial that cakery is/should be expressive, that food bears meaning, is somehow Gnostic and class-biased (or sexist? if your grandma could do it, it must not be art?), but maybe that’s self-parody on my part. Anyway beauty + meaning, to me, pretty clearly = art. And photography is even more obviously art, right?

2. Still… I wonder how different this debate would look if more gay people felt confident that Christians know how common discrimination, harassment, and violence are in our lives. I mean I didn’t really know this myself for a long time. I was very sheltered. The past few years, in which I’ve gotten to know lots of gay people from different backgrounds (mostly Christian, mostly celibate, it turns out this doesn’t protect you–not that any of my friends asked it to), have been eye-opening for me.

And quite often I find straight people are even more surprised than I was to hear about the frequency and sordid creativity of anti-gay acts. I hope I’m remembering this right, but at a retreat I was at, the leader asked how many of the non-straight participants had either experienced violence as a result of sexual orientation ourselves, or had close friends who had experienced this violence. And I think all of us had. (Close friends, in my case.) And the straight people were shocked. When I tell this story now, people’s eyes widen–I mean, straight people’s eyes widen.

There are all kinds of little facts like this: Most of my celibate gay Christian friends have had therapists blame their parents for their orientation (regardless of what the kid said) and insist that they must be uncomfortable in their gender. Many of them have lost or been denied jobs in Christian institutions explicitly because they’re gay/same-sex attracted, even though they upheld that institution’s sexual ethic and sought to live by it. My friends who work with homeless youth have said that kids who have been thrown out of their homes will say, “Well, my parents are Christians,” as if that’s an obvious explanation for parental rejection. We have a sharply bifurcated culture, where like Glee is on tv and Tim Cook is a gazillionaire, and yet countless kids are being harassed, berated, and thrown out of their homes for being gay.

I am not convinced most straight people know that stuff, and think it’s awful. I am definitely not convinced that most gay people trust that our heterosexual brethren know and reject that stuff. That’s some of what you’re hearing in the “slippery slope” arguments, Can they refuse to carry us in the ambulance? Can they kick our family out of the restaurant?

3. Since that Christianity Today piece about attending gay weddings, I’ve thought about what the options are for people who can’t in good conscience attend a wedding. If I had a friend who was getting married in a way I really couldn’t attend, I think I’d ask questions like, “I honestly can’t do this, as a matter of faith, but could I come to your reception?” Or I’d try to come over beforehand and bring a gift. What can you support, in another person’s life? Could you offer to babysit their kids, or ask them to babysit yours? Could you encourage them to lean on you for help in every practical way you can offer? I don’t suggest these things because I think they would “work,” as a matter of PR or even witness, but because I think they would help “conscientious objectors” become, also, servants.

In the case of wedding vendors, what would this incorporation of servanthood look like? Could someone say, “I can’t receive payment for a gay wedding event, but I will do it for free”? Could they say, “I can’t take your photos for this specific event, because I can’t honor what my faith forbids, but I can give you five free sessions”? What if we took Matt 5:41 as a key text here, and asked how we could “go the extra mile” with someone?

I, uh, don’t know the answer to these questions. I don’t blame specific vendors for not coming up with them under pressure. Also there are probably much better ways of living out servanthood which I haven’t thought of. (“I can bake you a cake with Leviticus 18:22 on it!” does not count.) But I wonder if this approach could shift how both churches and individual Christians related to people they have to turn down for any reason.

Final thought: I know Indiana’s law is not about wedding cakes! But I have no thoughts on the other issues which better-informed people have not already stated.

I can't speak for others in this thread, but my reaction to this controversy has largely been defined by: (1) my perception that there are serious unprecedented threats to religious freedom in America; and (2) the fact I have never discriminated against a gay person, and have never seen or heard of others doing so in Christ's name. But reading the above gives me serious pause, and at least helps me understand the visceral reaction from many in the LGBT community.

 

[Emcee77]

IMO, and I could be wrong, but I don't think this is true. I'm fairly certain that publicly traded companies by virtue of having "liquidity" of ownership cannot claim to have religious beliefs... because whose beliefs would they be? I'm not talking about s-corps with stock that is held by a small amount of people, I'm talking about true public entities. Even if those entities are 99% owned by couple people with staunch beliefs... my understanding is that the 1% that can change hands at any time undermines that. At least when discussing the Hobby Lobby case with lawyer people I remember that being a sticking point.

For example, Notre Dame can have religious beliefs... as can Georgetown, Brandeis, and Liberty. But a public school like Purdue could never even attempt to utilize a law like the Indiana RFRA, regardless of the composition of the board of trustees was or who the president of the university is at the time.



Because CNA itself is 90% owned by a holding company and there's the other 10% to consider.



Well, shit. Now I get to the end and I think I'm wrong and you're right. Because "substantial ownership interest" is pretty vague. Woups.

Still don't think CNA works, because the "substantial ownership" seems to be a holding company and not an individual(s), but I definitely didn't read the law correctly.

Well, I don't want to go off too far on a tangent; my point was just that, as it relates to this IN RFRA debate, we don't exactly know what distinctions a court might draw between publicly traded corporations and closely held ones. A court could absolutely agree with you. But it might not.

 

[connor_in]

This. IMO, people need to discuss more of the real (either the language of the law or plausible situations affecting sole-proprietor or otherwise privately owned business) instead of the outlandish. It's completely implausible to think a publicly traded corporation could ever use this law, or that this law could be used for rampant macro-scale mass discrimination.

I hear Chik-fil-a will no longer be serving redheaded patrons in the sate of Indiana

 

[connor_in]

Well, I don't want to go off too far on a tangent; my point was just that, as it relates to this IN RFRA debate, we don't exactly know what distinctions a court might draw between publicly traded corporations and closely held ones. A court could absolutely agree with you. But it might not.

So are you saying that they HAD to pass it to see what was in it?

:zthinking

 

[Cackalacky]

Based on RFRA precedence, here's my understanding of the test that would be used:

• Is this a substantial burden on the person's/ business' sincere religious beliefs? This is where consistency becomes relevant. If a restaurant owned by Catholics has no problem catering a divorce party or the reception for a 2nd marriage, but they balk at serving a gay marriage, then a court could easily decline to apply the RFRA because the burden is apparently not substantial.
• Is a compelling governmental interest at stake here? Ensuring that all citizens have sufficient access to public accommodations will almost always be considered so.
• Is judicial compulsion the least restrictive means available to further that interest? This is where alternatives are relevant. If there are many other businesses willing and able to accommodate the plaintiff, then the case for compulsion is weak. But if the business in question is the only provider in town, then an appeal to RFRA is likely to be denied.

Part of the problem here is that Indiana's law is a direct reaction to Elane Photography v. Willot, which is a very poorly reasoned case. The lesbian couple at issue actively sought out the Huguenins to "test" whether fundamentalist Christians would be willing to shoot a (newly legalized) gay wedding, despite having many other options. And the New Mexico Supreme Court broke with the precedent established by virtually every other RFRA state and declined to apply its own RFRA on a technicality (because "the government [wasn't] a party.")

The Huguenins were targeted by gay rights activists and then denied protection under a clearly relevant state statute. Indiana sought to ensure that couldn't happen in the Hoosier State. But instead of reporting on the law in light of its obvious lineage, or how it might be amended to provide reciprocal protections for dissenting gay proprietors, virtually every one commenting on it has made absurd comparisons to Jim Crow.

I have to say I disagree with the absurdity of the comparison to Jim Crow. In essence the same justifications, sources of bible passages, legal arguments, political arguments and a host of other similarities used to justify the segregation of a group of people are being replayed out in the RFRA laws. The Jim Crow laws didnt just keep black people segregated, but limited their access to many typical features of the American way of life.

One can claim that LGBT do not face the lynchings or harassment that blacks did and that is certainly true, but the Jim Crow laws were cultural based, society requested and state sanctioned to prevent the assimilation of a group of people into the mainstream society at that time, very much similar to the RFRA laws. The big thing that gets downplayed is the long term affect of the Jim Crow laws of a whole generation of people. I still see it in many people I deal with on a daily basis... and their children. Their fears, their concerns, their mental hoop jumping rationalizing their behaviors. Its not so much the law itself but the embodiment of it and the effects on another generation of fellow humans that is similar to Jim Crow.

So far, this is just the beginning until sexual orientation is protected.

 

[Whiskeyjack]

I have to say I disagree with the absurdity of the comparison to Jim Crow. In essence the same justifications, sources of bible passages, legal arguments, political arguments and a host of other similarities used to justify the segregation of a group of people are being replayed out in the RFRA laws. The Jim Crow laws didnt just keep black people segregated, but limited their access to many typical features of the American way of life.

One can claim that LGBT do not face the lynchings or harassment that blacks did and that is certainly true, but the Jim Crow laws were cultural based, society requested and state sanctioned to prevent the assimilation of a group of people into the mainstream society at that time, very much similar to the RFRA laws. The big thing that gets downplayed is the long term affect of the Jim Crow laws of a whole generation of people. I still see it in many people I deal with on a daily basis... and their children. Their fears, their concerns, their mental hoop jumping rationalizing their behaviors. Its not so much the law itself but the embodiment of it and the effects on another generation of fellow humans that is similar to Jim Crow.

So far, this is just the beginning until sexual orientation is protected.

In my view, Indiana's RFRA was primarily motivated by a desire to prevent Elane Photography v. Willot from happening in the Hoosier State. In other words, it seeks to give Christians a day in court prior to being forced to violate their sincerely held religious beliefs. That's all; and yet you think comparisons to the apartheid South are appropriate? As I've mentioned several times already, Jim Crow was so pervasive that most blacks were denied access to lots of basic public accommodations; and it was backed up by a campaign of racist terror. The LGBT community has never faced anything even remotely comparable to that in America.

This is a big reason why I'm so concerned about religious liberty. Like "state's rights", it's turning into a byword for bigotry. What's going to happen to the Catholic Church when one of its core doctrines is presumed to be nothing more than irrational animus toward gays?

 

[phgreek]

In my view, Indiana's RFRA was primarily motivated by a desire to prevent Elane Photography v. Willot from happening in the Hoosier State. In other words, it seeks to give Christians a day in court prior to being forced to violate their sincerely held religious beliefs. That's all; and yet you think comparisons to the apartheid South are appropriate? As I've mentioned several times already, Jim Crow was so pervasive that most blacks were denied access to lots of basic public accommodations; and it was backed up by a campaign of racist terror. The LGBT community has never faced anything even remotely comparable to that in America.

This is a big reason why I'm so concerned about religious liberty. Like "state's rights", it's turning into a byword for bigotry. What's going to happen to the Catholic Church when one of its core doctrines is presumed to be nothing more than irrational animus toward gays?

That was my thought...I thought I missed something based upon some of the comparisons I've seen.

 

[Irish#1]

Mike Pence has proven to be substantially less than his predecessor Daniels, who did an amazing job. Even though I have typically voted GOP, I have never voted for Pence for one reason.

His wife use to teach a couple of my kids in grade school. Back when he was trying to get into politics, he was running for a congressman's seat. It's back to school night and the wife and I headed to the grade school. Out in the parking lot a very large banner hung on the side of a bus asking to "Vote for Mike Pence". He's greeting people as they come in. I thought it was an inappropriate time to do this.

He's now talking about signing an amendment to the RFRA. Why would he do this is he believes in this so strongly, or why didn't he tell them to insert the proper language before it got to his desk?

He has aspirations of being President and signed the bill to gain the approval of the ultra-conservatives.

 

[Cackalacky]

In my view, Indiana's RFRA was primarily motivated by a desire to prevent Elane Photography v. Willot from happening in the Hoosier State. In other words, it seeks to give Christians a day in court prior to being forced to violate their sincerely held religious beliefs. That's all; and yet you think comparisons to the apartheid South are appropriate? As I've mentioned several times already, Jim Crow was so pervasive that most blacks were denied access to lots of basic public accommodations; and it was backed up by a campaign of racist terror. The LGBT community has never faced anything even remotely comparable to that in America.

This is a big reason why I'm so concerned about religious liberty. Like "state's rights", it's turning into a byword for bigotry. What's going to happen to the Catholic Church when one of its core doctrines is presumed to be nothing more than irrational animus toward gays?

Its not the violence...... Its the mentality. The same cultural justifications. The same rational. The same logic that supported the codified implementation of Jim Crow and justification of already extant behaviors. I didn't say appropriate, I meant apposite and relevant to the discussion because their very logical existence originates from similar thought process and cultural issues.

Again the state's rights argument for slavery... all justified for ECONOMIC and CULTURAL and RELIGIOUS reasons. It was a state's right to have slavery for these reasons. Similarly, a state's right to religious freedom is now codified on the basis of ECONOMIC and CULTURAL, and RELIGIOUS reasons. If you think it stops here I am not sure what to do to argue otherwise.The grounds on which Indiana's particular language is at one time the same as all other RFRAs but with the additional language, quite different. The reason for the additional language may be limited to the case you speak of but the RFRA laws in general are literally nothing more than the conceptual basis of JIM Crow laws more narrowly applied.

You said earlier that religion is by its nature exclusive and discriminatory. I agree. And in secular communities with secular laws, that is a tough path to tread, which is why in my earlier posts I stated that the concept of bigotry is a relatively new concept for even liberal societies and that religious people don't view their stance on various cultural phenomenon as bigotry where as in secular societies, it quite clearly is. How is this reconciled/ Who should reconcile it?.

 

[Whiskeyjack]

This is a big reason why I'm so concerned about religious liberty. Like "state's rights", it's turning into a byword for bigotry. What's going to happen to the Catholic Church when one of its core doctrines is presumed to be nothing more than irrational animus toward gays?

Right on cue, the newspaper of record is now putting "religious liberty" in scare quotes. It's not longer possible to discuss the concept unironically.