So Indiana passed a law allowing businesses to discriminate against their LGBT customers so long as they do it for religious reasons, because apparently immoral things become just great as long as you them for religion. The running message from defenders of this law (who are all religious and anti-gay, but I’m sure that’s a coincidence) are saying this bill is no different from the RFRA laws signed by people like Clinton and Obama. This is untrue:
The Indiana law differs substantially from the federal Religious Freedom Restoration Act, signed by President Clinton in 1993, and all other state RFRAs.
There are several important differences in the Indiana bill but the most striking is Section 9. Under that section, a “person” (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose “exercise of religion has been substantially burdened, or is likely to be substantially burdened” can use the law as “a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding.”
Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens.* This means it could be used as a cudgel by corporations to justify discrimination against individuals that might otherwise be protected under law. Indiana trial lawyer Matt Anderson, discussing this difference, writes that the Indiana law is “more broadly written than its federal and state predecessors” and opens up “the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate…”
This is not a trivial distinction. Arizona enacted an RFRA that applied to actions involving the government in 2012. When the state legislature tried to expand it to purely private disputes in 2014, nationwide protests erupted and Jan Brewer, Arizona’s Republican governor, vetoed the measure.
Thirty law professors who are experts in religious freedom wrote in February that the Indiana law does not “mirror the language of the federal RFRA” and “will… create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.”
Various federal courts have differing interpretations of the scope of the federal RFRA. The Indiana law explicitly resolves all those disputes in one direction — and then goes even further.
Gov. Mike Pence insists that this bill will not enable discrimination. Specifically he said, “This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it.” However, the people who helped author the bill have said explicitly that’s what it’s there to do. You can see many of them behind Gov. Pence as he signed the bill into law:
These people are all members of anti-gay hate groups. Curt Smith is from the Indiana Family Institute. I checked out their facebook page and saw this message, which I’ve heard time and time again:
“It was Jefferson who declared, ‘No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.’ Yet today, Elaine Huguenin loses her private photography business in New Mexico because the civil authority there told her to violate her conscience and participate in a “gay wedding” or face the consequences.”
This is flat out stupid. Civil rights laws exist explicitly to contradict the conscience of people who think discrimination is grand. All laws go against somebody’s conscience. Think it’s unconscionable to drive the speed limit and slow people down behind you? Too bad, the law trumps your conscience. Think you should be able to segregate your business’ water fountains or reject service to black people as a matter of conscience? Too bad! The law is clear: if you use public roads and other public services to do business then you have to provide service to the public. All of it.
This has already been ruled on. In 1968 a South Carolina restaurant owner did argue before the SCOTUS that he shouldn’t have to serve black people on account of his religious beliefs. The man was Maurice Bessinger who owned Piggie Park BBQ.
The attorney representing the petitioners suing Piggie Park also addressed in court the “First Amendment religious privilege claim that petitioner asserted that his religion required him” to deny service to black customers.
“I’m just a fair man. I want to be known as a hard-working, Christian man that loves God and wants to further (God’s) work throughout the world as I have been doing throughout the last 25 years.”
The SCOTUS ruled 8-0 against him (Justice Marshall recused himself). What about Maurice Bessinger’s conscience? What about his religion saying he should be able to refuse service to black people? What about Bessinger’s “freedom”? After all, it’s his business. Shouldn’t he be able to reject whatever customers he feels like?
Answer: fuck no. You don’t get to use your public business as a means to discriminate against people, whether it’s women, black people, gays, or whatever. This argument has been tried before. It sucked then and it sucks now.
Eric Miller is with Advance America. They’re the group spreading the lie that “A Pastor that preaches what the Bible says about homosexuality could be prosecuted as a criminal under a hate crime law resulting in jail and fines.”
And lastly Micah Clarke, the guy who posted the above picture on twitter, is from the American Family Association, which needs no introduction on this blog.
Yeah, this bill is totally not about discriminating against gay people at all. All those people behind Pence who make a living pushing for discrimination against gay people were just wandering through the signing ceremony that was closed off to the media and public, I guess. How stupid does Pence think people are?
After he signed the bill, it quickly became apparent that lots of rich people placed more credibility on Pence’s company and the language of the bill than on Pence’s assurance that the bill wouldn’t do what it was designed to do. All sorts of investors started pulling out of Indiana rather than making jobs in a state where their employees could be refused service. The Gen Con convention also wanted to leave, but they’re contractually obligated through 2020 and only religious business owners can circumvent legal consequences in Indiana.
Now, realizing the financial damage being a bigot will do to his state, Pence is trying to walk back. He wants to “clarify” what the bill is supposed to do.
Three days after signing legislation widely criticized as a “license to discriminate” against LGBT people, Indiana Gov. Mike Pence says he didn’t anticipate “the hostility that’s been directed at our state.”
Hostility toward your state? You passed a law allowing businesses to kick out gay customers and you want to piss and moan that it’s other people demonstrating hostility? That’s some hubris right there.
Listen governor, there wasn’t any hostility to Indiana before you signed that bill. There was hostility toward discrimination, sure, and there should be. When you welcomed discrimination into your state by law, you welcomed all the disdain that comes with it. That’s on you, nobody else.
Pence told the Indianapolis Star on Saturday he’s been in discussions with legislative leaders this weekend, and will support legislation to “clarify the intent” of the religious freedom that has created a firestorm of criticism, boycotts and backlash from civic leaders to business leaders, and even the White House.
The Republican governor said expects that a clarification bill will be introduced this coming week to the religious objections law he signed Thursday.
Micah Clarke (one of the people behind Pence as he signed the law) has flat out urged against Gov. Pence clarifying that businesses will still have to serve LGBT citizens, insisting what everybody already knows: the law explicitly allows for discrimination:
He told AFA President Tim Wildmon today that conservatives should call Pence and other state officials and demand that they oppose any effort to clarify that the law does not legalize discrimination: “That could totally destroy this bill.” (In Georgia, supporters of a similar bill also opposed a push to ensure that the legislation will not permit discrimination in business.)
Wildmon agreed, adding that the Indiana law is necessary to protect anti-gay business owners from “persecution.” The law’s critics, Wildmon claimed, are waging “spiritual warfare” against state officials.
So governor, what will that clarification say? I suggest the clarification had better say that businesses cannot kick out gay customers. It had better say that they can’t segregate their water fountains for gay people the way businesses used to do for black people, regardless of the excuse given. In short, it had better clarify that anti-discrimination measures are to stop shit like this from ever happening again:
Anti-discrimination laws that pave the way for discrimination are oxymoronic and just plain moronic. If you have an anti-discrimination law, it had damn well better be there to make sure minorities cannot be discriminated against by public business, no matter what the conscience of the owner says. After all, the owners of all the above establishments put these signs up because their conscience compelled them to do so. If a person’s conscience undermines the promises of equality in America, then too fucking bad. Laws exist to protect people’s rights, not the hurt feelings of Christians when they have to treat people like equals.
Pence declined to provide details but told the newspaper that making LGBT Indiana residents a protected legal class is “not on my agenda.”
Call me crazy, but that doesn’t look like the type of guy who’s looking to clarify things. Are you familiar with the phrase “We reap what we sow,” governor?
Do yourself a favor: don’t make things worse by lying to people and treating all of us like we’re gullible.
Hey Arkansas: look at Indiana right now. This is not what you want. And both of you, Indiana and Arkansas, do yourselves a favor and try to think of a time in history where we were discriminating which is now remembered with fondness rather than shame. Can’t do it, can you? There’s a reason for that.
If you keep America’s promises of equality, Jesus won’t do a god damn thing to your state. But if you sell them out to your religion, you can bet that people will demand justice and you’ll have nobody to blame but yourselves.