I asked you if someone had brought such a suit in Indiana last year, what kind of standards would the court have used to evaluate it then, and how are those standards different than the current ones?
You didn’t answer this question.
Instead, you asked me a question. I will answer it: the law does, of course, change things in Indiana. It prevents the government of Indiana from passing any laws that substantially burden religious exercise, unless the government of Indiana can demonstrate that such laws are narrowly tailored to serve a compelling government objective.
Prior to the RFRA, the government of Indiana was free to pass laws of general applicability, even if they burdened religious exercise, and needed only to justify their passage under the rational basis test. Subsequent to the RFRA’s passage, they would have to justify such a law as narrowly tailored to serve a compelling government objective.
OK, that’s your answer. Now, you tell me: if someone had brought such a suit in Indiana last year, what kind of standards would the court have used to evaluate it then, and how are those standards different than the current ones?
That’s not the way it works. The RFRA is about laws passed by the government. If businesses think that a law passed by the government is a substantial burden on them, then they can take it to court.
For example, right now gays are not a suspect class, so you can discriminate against them (RFRA or no RFRA) in Indiana. If the legislature passes a law saying businesses cannot discriminate against gays, then a business can go to court and claim an exemption on religious grounds.
Think of the Hobby Lobby case. Who went to court-- Hobby Lobby or their employees?
Fair question. It’s not different (in a pristine courtroom or at the attorney club over congnacs), but I think the passage of the law encourages many businesses to be discriminatory in the open.
I’m not naive enough to think the civil rights act changed everything, for instance. But at least the bigots knew they were breaking the law.
I don’t think we can just consider what happens in a hypothetical lawsuit. We’ve already seen people say they won’t serve gay pizza anymore, out loud and proud.
My question: If someone had brought such a suit in Indiana last year, what kind of standards would the court have used to evaluate it then, and how are those standards different than the current ones?
Your response: *Because last year RFRA was not part of Indiana law, and today it is.
If it doesn’t change anything, then why the hell was it passed? Why endure the statewide shitstorm over a law that has no practical effect?*
That response does not answer that question in any way, regardless of any desired degree of specificity. What standards would have been used? How are those standards different now that the new law exists? Your response does not in any way address those queries.
I guess that’s true, and thanks for the correction. But business owners are interpreting the law as meaning they can refuse service to whoever they want. It’s changing real-world actions.
If your objection to the law is that it sends a generic message, even though there is no actual objectionable legal effect, I cannot argue with you: that point was made earlier in the other thread by boytypenama, and I agree it is a valid point.
But my objection has been that the vocal criticism directed at the law has claimed that there would be deleterious legal effects, and credulous people such as CinnamonBabka are convinced that this claim is true, despite being unable to articulate why it’s true. (Hint: because it isn’t).
So I object to winning popular support by misrepresenting the factual aspects of the law. If opponents were to say, “I oppose this law because the mere passage of it encourages many businesses to be discriminatory in the open, even though the law does not change their legal position,” then I’d be fine.
And that’s my point. I can’t believe I have had to expend so much effort on a board supposedly interested in the fight against ignorance to get people to accept the factual aspects of this law.
Assuming I’m not completely out of context, wouldn’t this language apply to any civil proceeding as well? Because wedding cakes are the go-to example, lets say I paid a baker to bake me a wedding cake 3 months before my wedding, and when the baker goes to deliver the cake they find out it’s a gay wedding and refuse to give us that cake. I file a civil suit against the baker, I would think that RFRA gives them a defense against anything more than giving me a refund for my cake.
However, as I read the law, if a city council passes an ordinance saying landlords cannot discriminate against gay renters, a would-be renter could sue the landlord for discrimination, and then the landlord could attack the ordinance as part of his defense.
First of all: thank you for moderating your commentary with “…assuming I’m not completely out of context…” It changes your statements from confident assertions to genuine inquiries.
I have two responses. One is that in the majority of federal circuits to consider the question, the federal RFRA also gives the baker in a civil suit that same defense. So if we’re still talking about the claim that the Indiana RFRA is materially different from the federal version, this really isn’t a difference, since most federal circuits have inferred a similar civil defense from the federal law.
Here’s my second response: Indiana, like many states and the federal system, does not recognize gays as a protected class. So from a state law perspective, you wouldn’t have any grounds to sue the baker anyway, other than for breach of contract, I guess… the point being, the RFRA didn’t give any new grounds to sue.
Now, there’s more to the story, and this is the difference between telling you only the true facts that help my case, and telling you all the true facts. Even though Indiana state law does not protect sexual orientation as a class, major cities in Indiana have city codes or ordinances that do. So now it sounds like maybe you’re right: a baker out in the boonies is unaffected by the new law, because he never had to refrain from discrimination in the first place, but a baker in a major city, one that had local anti-discrimination laws in place, could have been sued before the RFRA, and now he has a defense he didn’t have before.
Except:
The RFRA says that government in Indiana may substantially burden a person’s exercise of religion only if it 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. So if that baker uses the RFRA as a defense, he will fail anyway, since the government has a compelling interest in stopping discrimination against sexual orientation, as demonstrated by the ordinances.
See what I mean? It’s not a neat and easy soundbite, I grant you.
But either way you look at it, the Indiana RFRA is materially similar to the existing state RFRAs and the federal RFRA. Objections to it can certainly arise from the standpoint of what kind of social message it sends. But their can’t be serious claims about its legal effect being someone dramatically different from the multitude of laws that came before it.
I’ve tried to be as clear and non-jargony in this response as I can. I hope it was helpful.
Except, as I just explained to Cinnamon, the landlord then runs up against the problem that the government has demonstrated a compelling interest in stopping discrimination. And the RFRA allows the government’s ordinances to win when the government can show that its ordinance exists to serve a compelling government need and is narrowly tailored to fill that need.
The state of Indiana does not have any compelling interest in stopping discrimination against sexual orientation. RFRA, as shown in the line I keep quoting, shows that the state of Indiana has a compelling interest in protecting religious freedom in any judicial proceeding. If I take that baker to court, and he cites RFRA, what’s going to win out – the city’s compelling interest in stopping discrimination, or the State’s unconditional right to intervene in order to respond to the person’s invocation of RFRA?
This is not a mysterious question, since similar cases have arisen in RFRA suits filed in other states and in the federal system for many years.
Answer: the city’s compelling interest wins out.
(And for the record: the RFRA doesn’t establish a “compelling interest” for the state to protect religious freedom; it mandates that any burden of religious exercise must be justified by a state compelling interest).
Other states don’t have that kind of language in their RFRA, though. It’s ambiguious, and you’re assuming the courts in Indiana will treat this RFRA, with its unique, ambiguous language, the same as any other state.
I’m willing to accept your interpretation of law, councilor Bricker, but has **Cinnamon **perhaps got a point that regardless of your interpretation, an untested law is still untested?
What would Jesus have done? I’m not so sure Jesus was all love after all.
THE ARABIC GOSPEL OF THE INFANCY OF THE SAVIOUR
IN the name of the Father, and the Son, and the Holy Spirit, one God.
46. Again, on another day, the Lord Jesus was with the boys at a stream of water, and they had again made little fish-ponds. And the Lord Jesus had made twelve sparrows, and had arranged them round His fish-pond, three on each side. And it was the Sabbath-day. Wherefore a Jew, the son of Hanan, coming up, and seeing them thus engaged, said in anger and great indignation: Do you make figures of clay on the Sabbath-day? And he ran quickly, and destroyed their fish-ponds. But when the Lord Jesus clapped His hands over the sparrows which He had made, they flew away chirping. Then the son of Hanan came up to the fish-pond of Jesus also, and kicked it with his shoes, and the water of it vanished away. And the Lord Jesus said to him: As that water has vanished away, so thy life shall likewise vanish away. And immediately that boy dried up.
At another time, when the Lord Jesus was returning home with Joseph in the evening. He met a boy, who ran up against Him with so much force that He fell. And the Lord Jesus said to him: As thou hast thrown me down, so thou shall fall and not rise again. And the same hour the boy fell down, and expired.
Thereafter they took Him to another and a more learned master, who, when be saw Him, said: Say Aleph. And when He had said Aleph, the master ordered him to pronounce Beth. And the Lord Jesus answered him, and said: First tell me the meaning of the letter Aleph, and then I shall pronounce Beth. And when the master hereupon raised his hand and flogged Him, immediately his hand dried up, and he died. Then said Joseph, to the Lady Mary: From this time we shall not let him go out of the house, since every one who opposes him is struck dead.
You piss Jesus off and you’re really going to pay the price.
Here’s the thing, though. I don’t live in Indiana, and I don’t know anything about the judicial system in Indiana. But would it be completely crazy for an Indiana resident to fear that the courts will find that the city’s interest in preventing discrimination based on sexual orientation is not compelling? Because I think that’s really the issue - and it’s not just a legal issue.
It’s kinda like when that story about the GTX 970 was making the rounds. While I, with my background in this kind of thing, felt that simply looking at the benchmarks was enough to understand the impact of the memory allocation issue, many people who asked for my advice on building a PC felt that the articles they had read were enough to make them feel like the R9 290x would be the better long-term choice.
The behavior of a computer is a lot more well defined than people are, but I still understand the qualms people had with the ambiguity slapping “4GB GDDR5XXXX RAM” on the box.