You know, it’s too bad that there isn’t a constitutional amendment that protects the rights of individuals to practice their own religion. If we had such a thing, then a license to discriminate based on sexual preference could be seen as the fraud that it is.
If I were an Indiana resident/voter I’d be curious about the actual/projected cost of this bill due to lost business, etc. Anyone have an idea?
Since federal law already gives that license, why would anything change?
Also, the examples you describe are not actionable in most cases. Anti-discrimination laws only cover a limited number of situations having to do with the ability of traditionally discriminated against groups to engage in the social and economic life of the nation. The law does not protect you from having your feelings hurt, even if the accumulation of such offenses creates a similar feeling of being excluded. The government cannot protect people from that without creating a pretty draconian situation. Some people seem to be under the impression that discrimination is illegal as a general principle, but it’s just not. ONly in employment, housing, and public accomodations. Which covers a lot, but also leaves a ton out. Discrimination is perfectly legal outside the areas where it is specifcally proscribed by law. You can’t sue a convenience store owner for treating you like a criminal because it’s hard to prove. You can’t do it period, because it’s not a crime. It’s only a crime or a civil offense if they refuse to serve you.
We have an amendment, obviously, but courts weren’t interpreting infringements on religious freedom the way they were with freedom of speech, which just seems odd to me, since they are both in the same amendment. So the RFRA was passed in 1993 to require courts to view such infringements the way they were intended to.
The national RFRA is part of the U.S. Code. The words it uses are defined by that code.
The national RFRA is an Act of Congress, codified at 42 USC § 2000bb, and it provides: “Government 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.”
And the Dictionary Act, 1 USC § 1, says that in determining the meaning of any Act of Congress, “person” means “…corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
So what do you mean by saying that the text in the national RFRA doesn’t include for-profit businesses? It clearly does, by using the word “person,” which federal law specifically and explicitly defines as corporations, companies, associations, firms, partnerships, societies, and joint stock companies.
Can you explain your meaning?
The Indiana law defines person in the law, whereas the RFRA does not directly do so.
Which means nothing at all, since the effect is exactly the same.
No. A legislature can never bind itself in a way that it can’t unbind itself, leaving aside nuances like requiring supermajority under certain rules of procedure.
But in statutory construction, the specific outweighs the general. So a state passes a law that says, “No law of this State shall substantially burden a person’s religious expression, unless the application of that law is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.”
Now, all subsequent laws of general applicability are governed by that standard. Of course, the state could pass a given law that exempts itself: “No wine, beer, or intoxicating beverage of any quantity whatsoever may be consumed on Sundays, and this law is not subject to the ‘substantial burden’ test.”
But without that exemption – if the law simply said, “No wine, beer, or intoxicating beverage of any quantity whatsoever may be consumed on Sundays,” then Christian communion-takers could challenge it, and the government would have to show how their rule is the least restrictive means of furthering some compelling governmental interest, even if the no-wine law was passed after the RFRA-law.
Why is “directly” relevant?
The Indiana law defines person in different paragraphs of the law. So does the U.S. Code. What legal relevance is there to any difference?
That’s some marzipan in your pie plate, Bingo!
Sure: because the other factors mentioned in this thread are pure inchoate speculation with no basis in law or fact, and meaningless to a legal analysis of the effects of the law.
That’s not an accurate statement of the law.
Is it how you wish the law were, or were you mistaken about what the law is?
Even though my business is adjacent to a public road, I can turn away customers for all sorts of reasons. “No shirt, no shoes, no service,” is a classic example. I can refuse to serve anyone wearing a Cowboys jersey if I please.
What the law does prohibit comes into play if my business is a place of public accommodation. It might not be: my business might be a movie studio, and if it is, I can make whatever movie I wish. You cannot require me to cast you, to hire you as a director, or to allow you to write the screenplay. I can even say to you, quite legally, that I am not hiring you because you’re black.
If my business is a place of public accommodation, I can still refuse to serve you if you’re wearing a Cowboys jersey. What the law prevents me from doing in this circumstance is refusing to serve you on the basis of your race.
Is that what you meant to say?
My sacast-o-meter might need some calibration but I never said or implied that LBGT, or anyone else, be treated as separate but equal.
I just want to know why people would not want to know which businesses supported, or didn’t support, LBGT lifestyles.
That’s something I always wondered about. Is that the exception in civil rights law that allows moviemakers to hire only white people for a film, that it’s not a public accomodation? But wouldn’t employment law still cover that, or is there some other legal exception that allows for that?
Suppose I want a pork sandwich. I go into Herschel’s Kosher Deli and ask for one. Herschel informs me that, due to his religious beliefs, he doesn’t serve pork. I have to find another business to get my pork sandwich. Oh no, Herschel’s religious beliefs have negatively impacted me!
As long as we live in a society, things that others do will impact us, sometimes negatively. There are various ways of handling this. The USA was founded on the belief that things work for the best when people have the most freedom. Some people use that freedom to do things that most people find repugnant. Even so, more freedom is better.
The thing is, Herschel, because of his religious beliefs, treats everybody the same way. If there are a lot of people in the community who want BLTs, someone is likely to open a competing sandwich shop.
Billy Joe opens that shop. And I want a BLT. Billy Joe informs me that, due to his religious beliefs, he doesn’t serve gay people. I have to find another business to get my BLT. Except now, I’m in the minority. I’m one of very few people affected by this religious practice. There’s no incentive for someone to open a new shop, the way there was when Herschels refused to serve pork to anyone.
The two situations are not analogous, and it’s the second one that’s showing up in this law.
When political lobbyists ask politicians to pass a politically-charged bill in a highly partisan political environment, do you think that the only appropriate analysis of that bill is a legal analysis? Or is, perhaps, a political analysis allowed?
What a silly analogy. You can’t tell a person what products he must sell, only that he must sell his products to whoever wants them. Now if Herschel says he won’t sell you beef brisket for your wedding because he doesn’t approve of your lifestyle, then he is the one in the wrong. Except in Indiana, where discrimination is legal.
They should just make them post a sign saying they prefer not to do business with homosexuals.
That way they won’t have to deal with the gays! Win, for them.
And persons preferring inclusiveness can let their $'s do the talking! Win for everbody:D
Not a bad idea. Or make the owner wear a sheet and hood behind the counter.
In terms of businesses serving people at a public place, I agree completely, and this law will not actually permit business owners to refuse to serve gay people sandwiches.
The only people likely to win under this law are those who are in business for themselves, where what they offer are personal services. Such people already have an almost unlimited right to discriminate in current practice.
What those on the other side seem to be demanding is that the full weight of the government’s power should be brought down like a ton of bricks on little people. Unless you’re a business with more than one employee, that’s rather unlikely under current law. Wedding industry people who are in business for themselves regularly turn down interfaith weddings, and that’s religious discrimination. It’s unlikely that they’ll be forced to do gay weddings, unless states and cities, at the urging of activists, pass laws specifically conscripting them for such duty. Thus we have religious freedom laws as the pushback to such stupidity and waste of government resources.
Your link has the following two comments:
But then:
In the nineteenth century lived a guy named John Forrest Dillon. He was the author of an enormously successful treatise on municipal corporations, eponymously entitled Municipal Corporations. His view was that state governments held complete sovereignty, and lower divisions of government, such as cities, towns, villages, and the like, had no plenary legislative power: they could only legislate when the state explicitly granted them the power to do so. This concept came to be known as “Dillon’s Rule,” and was expressed nicely by the Supreme Court of Iowa in City of Des Moines v. Iowa Telephone Company in 1917. Said those worthies:
His was a persuasive view, but not the only one. The competing view was articulated best by Judge Thomas Cooley of the Michigan Supreme Court, and came to be known as the Cooley Doctrine, expressed in Board of Park Commissioners v. Common Council of Detroit, that local government is matter of absolute right, and the state cannot remove it.
So states generally fall into two broad camps: Dillon’s Rule states do not permit the local government to legislate in any area unless the state grants it; Cooley Doctrine states presume that local government has a power unless the state explicitly countermands it.
So far as I can tell, and I certainly admit I’m not an expert in this area even in my home state, but from a quick review it seems to me that Indiana is not a Dillon’s Rule state.
For this reason I am inclined to believe, at least as a starting proposition and subject to correcting citation, that the mayor’s spokesperson in your quote is right, and the other commentator wrong.
It depends on the purpose of the analysis and the results to which it is employed.
For example, if you wish to say, “Symbolically, this is a bad bill, because it creates an impression of hostility to gays,” then certainly a political analysis is the correct one to apply.
If, however, you wish to make factual predictions about the reach, breadth, and effect of the law, then the only appropriate analysis is a legal one.
If you wish to buttress your arguments against the bill with false or misleading claims relating to reach, breadth, or effect of the law, then a legal analysis would definitely be counterproductive and should be shunned. If you wish to buttress your arguments against the bill with actual, real claims relating to reach, breadth, or effect of the law, then a legal analysis would definitely be indicated.