Garrett Epps at the Atlantic explains how the Indiana RFRA is different from (and worse than) the Federal one and all but two state ones.
[T]he Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.
The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.
The extras matter. They’re there for a reason.
Of all the state “religious freedom” laws I have read, this new statute hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people. True, there is no actual language that says, All businesses wishing to discriminate in employment, housing, and public accommodations on the basis of sexual orientation, please check this “religious objection” box. But, as Henry David Thoreau once wrote, “Some circumstantial evidence is very strong, as when you find a trout in the milk.”
So—is the fuss over the Indiana law overblown?
No.
The statute shows every sign of having been carefully designed to put new obstacles in the path of equality; and it has been publicly sold with deceptive claims that it is “nothing new.”
Being required to serve those we dislike is a painful price to pay for the privilege of running a business; but the pain exclusion inflicts on its victims, and on society, are far worse than the discomfort the faithful may suffer at having to open their businesses to all.
I have seen people passionately arguing that business owners have an absolute right to run their businesses as they see fit and that that totally does include refusing to serve people for whatever reason they feel like. Nope. If you open the door, you open the door. If you don’t want to serve all who walk in the door, then don’t open the door.
The funniest part about all of this was this quote from Governor Pence: “I just can’t account for the hostility that’s been directed at our state.” That’s right, it’s just a bunch of Indiana haters out there criticizing you, just looking for that one little time when you and the entire GOP leadership of the state do something cruel to a wide swath of the population to jump on board with their anti-Indiana hatred!
Apparently when you are criticized, everyone in your state is criticized. Why not just accuse your critics of lese majeste while you’re at it?
“It’s not about discriminating against gay customers, it’s about protecting religious liberty!”
Ok, so give me an example of what kind of scenario this law is supposed to help in.
“Well, maybe a florist doesn’t want to provide flowers for a gay wedding.”
So, the scenario in which this law, which totally isn’t about discrimination, is supposed to help in is a scenario where someone wants to turn away a gay customer?
“No! The florist just doesn’t want to participate in something that’s against their religion!”
So the scenario isn’t about discrimination or turning away gay customers, it’s about not having to participate in commerce with gay people?
“No! It’s about not having to participate in gay weddings!”
But the only way they’re connected to the wedding at all is by selling things to the gay people having a wedding.
“Exactly, and they don’t want to do that!”
So, they don’t want to do commerce with gay people that are having weddings and want to be able to turn them away?
“Dammit man, it’s like you’re not even listening to me!”
Apparently a business owner in Indiana can now place a “Christians not welcome” sign in the window. Cue the apoplectic meltdown.
What would you like the law to look like? A list of permitted reasons to kick people out of a business? A government agency with the authority to determine whether a business is being reasonable? Your principle is pretty much the opposite of how the law is now.
US law currently has the general principle that owners of public accommodations can refuse service to anyone with specific exceptions. Federally, that’s race, color, religion, or national origin under the Civil Rights Act and disability under the ADA. The Civil Rights Act definition of public accommodation is also quire narrow in comparison with the ADA – 1) places that rent rooms; 2) places that serve food for consumption on the premises; 3) gas stations; and 4) entertainment venues. The ADA basically covers anything open to the general public.
themadtapper
1) A person wants to use a substance as part of a religious ritual (peyote, ayahuasca or alcohol). The government may be forced to waive rules against consumption/possession in that context.
2) A person wants to wear religious dress. (Hijabs, yamakuhs, or turbans). The government may be forced to waive rules prohibiting head coverings in certain spaces.
3) A person wants to follow rules of ritual cleanliness (kosher or halal). Government regulations may be forced to exempt certain kinds of animal slaughter or food preparation from general standards.
qwints, #4
I suppose those would be nicer applications of this law. Of course, they’re unfair and discriminatory too. That’s how bad laws like these are.
Apparently a business owner in Indiana can now place a “Christians not welcome” sign in the window. Cue the apoplectic meltdown.
Cue broken window.
Sometimes, in my dark moments, I think that all the philosophical treatments I’ve read about morality miss the all-important point, namely: retaliation. People should do the right thing because they’ll suffer highly negative consequences if they don’t. Not to put too fine a point on it, that’s what assholes like ISIL are doing – they don’t have an actual reason why people should comply with their agenda, so violence and intimidation will suffice. At times like these I think that it’d probably do good to throw some bricks through some windows of businesses that want to discriminate. The bad guys get all the initiative when the good guys play fair, that’s the problem. I know it’d be wrong to burn some asshole’s store just for being an asshole, but I bet their fellow assholes would sit up and take notice. It’s a dark and slippery slope, unfortunately.
qwints:
You seem to have missed that this law is talking about situations where the government is not a party. I can understand how you might miss it; Ophelia only spent about half the post on quoted paragraphs discussing that aspect. Clearly, she needed to stress the point more to draw your attention to it. Maybe giant flashing neon signage?
(Yes, your reply was in response to themadtapper, not Ophelia directly. However, themadtapper’s post–in the portion you yourself quoted–uses the words, “this law”, with no reason to think the phrase means anything but the law that is being discussed, specifically for its exceptional language.)
Except that would quickly result in a summary judgement against the business owner the moment someone sued or registered a complaint. Religion is a protected class under both Indiana and federal law, unlike sexual orientation.
freemage,
Yes, good point.
And also, I’m sure Pence and the other asshats involved in this had the welfare of Muslims, Sikhs, Jews and NAC members in mind when coming up with the bill. Yeah, that’s what this is about: standing up for women in hijab.
Saad:
I suspect Pence will have a “clarifying” bill on his desk within minutes of such an occurrence.
@qwints The examples you cite are instances where religious freedom should be defended, and also ones that are covered under the federal and (usually) state RFRAs the quoted article mentions. The key difference is that in all of your examples, it is an individual whose rights are being infringed, while this law seeks to give that protection to businesses and organizations. Which has the effect of allowing for discrimination against LGBT people, and through an ironic twist, technically allows for discrimination in similar circumstances to the ones you cited, provided it’s a business and not the government.