Proposed ‘Clarification’ Language for Indiana RFRA

So the Republican leadership in the Indiana State Assembly has released its proposed language for the “clarification” that Gov. Mike Pence requested to try to quell the controversy over the new RFRA law passed last week. Here’s the full relevant language:

This chapter does not: (1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;

(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer orprovide services,facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; or (3) negate any rights available under the Constitution of the State of Indiana.[…]

As used in this chapter, “provider” means one (1) or more individuals, partnerships, associations, organizations, limited liability companies, corporations, and other organized groups of persons. The term does not include: (1) A church or other nonprofit religious organization or society, including an affiliated school, that is exempt from federal income taxation under 26 U.S.C. 501(a), as amended (excluding any activity that generates unrelated business taxable income (as defined in 26 U.S.C. 512, as amended)). (2) A rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society.

Sounds fancy and legal and all, but it’s mostly bullshit. It does nothing whatsoever to protect against anti-gay discrimination. All it says is that THIS law can’t be used to excuse or defend discrimination, but since anti-gay discrimination is already perfectly legal in that state and always has been, it will continue to be legal. Businesses did not need RFRA to discriminate against gay people in the first place, so declaring that this new law can’t be used to provide a defense that they never needed is pure political theater.

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What Are Your Thoughts?leave a comment
  • Sastra

    What does this thing do? I’d love to hear a hypothetical example from the ‘before’ and ‘after.’

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Sastra “What does this thing do? I’d love to hear a hypothetical example from the ‘before’ and ‘after.’”

    It’s peacock feathers for petty assholes.

  • Trebuchet

    What you’re missing, Ed, is that the original law was intended to override equal rights laws in places like Indianapolis. Now it doesn’t.

  • lofgren

    Apparently Ednis 100% committed to just totally ignoring the effect this law and its clarification will have on local ordinances. This is sad, Ed. It’s beneath you. If you disagree that the original law would have overridden local protections for LGBTQ people and that this clarification will now change that, at least say so rather than using weaselly language to avoid addressing the issue at all.

  • http://artk.typepad.com ArtK

    @Sastra

    They’ve been very vague about what the original law was supposed to accomplish and are continuing in that vein. “Pay no attention to the man behind the curtain” is a basic strategy when your intent is to somehow legalize discrimination.

  • tomh

    @ #3

    “the original law was intended to override equal rights laws in places like Indianapolis. Now it doesn’t.”

    Exactly right, it just puts things back to where they were before. In fact, Micah Clark, the head of the American Family Association of Indiana who stood behind Pence as he signed the RFRA bill into law, complained on Monday that the language in the fix, “could totally destroy this bill.” I think that’s correct. What I haven’t seen yet, is whether Pence will sign it.

  • John Pieret

    Lofgren:

    I’ve looked at both the Indianapolis ordinance and the RFRA and the latter clearly applies to the former. The RFRA states: “This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages …”

    The Indianapolis ordinance allows either the city/county equal opportunity advisory board or the aggrieved person to go to court to enjoin the discriminatory practice and to seek compensation for the aggrieved person’s damages. The RFRA allows a defense that the ordinance “substantially burdens” or is likely to substantially burden the defendant’s exercise of religion, that the burden is not in furtherance of a compelling governmental interest and/or the ordinance is not the least restrictive means of furthering that governmental interest. The government need not be a party to the case (as when the aggrieved party sues on their own behalf) but can step in to defend the ordinance if it so chooses.

    Note that “is likely to substantially burden,” which implies that someone or some group who has not yet run afoul of the law can sue to overturn the ordinance even without a case pending (which is what I suspect the wingnuts intended).

    It’s not a slam dunk that the Indianapolis ordinance would fail the RFRA’s test but it would add an another layer of difficulty for anyone trying to enforce the ordinance.

  • lofgren

    Thank you John Pieret. I have seen others comment on this aspect of the bill and some think one thing while others think another, though all reach the same conclusion: that the intent of the bill was to override local ordnances.

    However I still find it to be beneath Ed to continue to insist that this bill will have no effect whatsoever without even addressing the local issue, especially since in an earlier post he deliberately switched back and forth between saying “no protection” and “no state-level protection” as was convenient for him to make his point, indicating that he IS aware of the issue but is choosing to ignore it.

  • John Pieret

    Oh, and Family Research Council President Tony Perkins again makes clear what the wingnuts expect the Indiana version of the RFRA to do:

    This new proposal guts the Religious Freedom Restoration Act and empowers the government to impose punishing fines on people for following their beliefs about marriage.

    http://www.frc.org/newsroom/religious-freedom-should-not-be-held-hostage-to-big-business-family-research-council-urges-veto

    I’m sure Perkins and the other wingnuts are fully aware that there is no state-wide protection for LGBT people in Indiana. Those “punishing fines” can only result from the local ordinances in the three counties and ten cities that have any protections for LGBT people.

  • D. C. Sessions

    What does this thing do? I’d love to hear a hypothetical example from the ‘before’ and ‘after.’

    It’s a “sundown town” sign for the State if Indiana. Towns can still put them up, even if they’re no longer enforceable. But the Indiana statute, like the signs, still conveys the message that there are people who are not welcome there.

  • comfychair

    How did ‘My religion says homosexuality is a sin’ get turned into ‘My religion says living in a world with other people who are homosexual is a sin therefore I am not allowed to bake them a cake’?

  • Chiroptera

    comfychair, #11:

    In the same way that “divorce is not allowed except in the case of adultery” gets turned into “but I’ll bake them a cake anyway because, hey, money is money.”

    Yeah, I guess if I were the Third Eagle of the Apocalypse or something, I’d be better at understanding how all this Biblical interpretation works.

  • comfychair

    What about if an Amish family piled into the buggy one night to go have dinner at a fancy restaurant and then pitched a fit because the restaurant management refused to shut off the electricity at the main breaker to accommodate their SHRB’s?

  • dmcclean

    Sorry, Chiroptera, you’re too late. The apocalypse has more than enough eagles already. They aren’t even taking names for the waiting list anymore. :)

  • caseloweraz

    I hear the “Final Four” basketball competition will begin tomorrow in Indianapolis. Are there any gays on those teams? If so, it could be argued that citizens of Indiana who support the competition in any way (e.g. with food service, play-by-play commentary, security) is endorsing homosexuality (though not same-sex marriage.)

    In fact, the question of gay players on “Final Four” teams may be moot since the NCAA has taken a position against anti-gay discrimination.

    Note: I do not hold that providing logistical support for an organization which treats gays and straights the same endorses homosexuality. Holding such a view would be as absurd as saying that providing food service at a prison is endorsing criminality.

  • abb3w

    @10, D. C. Sessions

    Towns can still put them up, even if they’re no longer enforceable.

    Errrr… can? Well, as a matter of physics, it’s not that hard to nail a sign to post, yes. May do so lawfully seems far less clear. At the very least, doing so would seem the sort of thing that would seem admissible towards any civil rights case against the town or any businesses there, and get litigation coverage for the municipality dropped; per Title VI of the Civil Rights Act of 1964 could jeopardize all federal funding for the municipality; and might itself be considered sufficient violation of Title III of the Civil Rights Act of 1964 for the sign to be subjected to court-ordered removal after a lawsuit.

    But I’m not a lawyer.