Anti-Gay Laws are based on religious freedom

[B-Man]

I would suggest you expand your bookmarks list for a better understanding of the law and how it is unique in many ways.

The author can do that

 

Why The Atlantic Is Wrong about Indiana's Religious Freedom Law

by John McCormack

 

 

Garrett Epps writes at The Atlantic that I am wrong to say there aren't "significant" differences between the federal Religious Freedom Restoration Act (RFRA) and Indiana's RFRA.

 

According to Epps, who teaches creative writing and constitutional law at the University of Baltimore, there are two major differences between the Indiana law and the federal law. "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," writes Epps. "Second, the Indiana statute explicitly makes a business’s 'free exercise' right a defense against a private lawsuit by another person, rather than simply against actions brought by government."

 

"I am not sure what McCormack was thinking," writes Epps, referring to my claim that there aren't any "significant" differences between Indiana's RFRA and the federal RFRA.

 

If Epps could have continued reading just a bit longer, he would have discovered that I back up this claim by directing readers to the writings of University of Virgina law professor Douglas Laycock, Stanford University law professor Michael McConnell (a former federal judge on the Tenth Circuit Court of Appeals), and South Texas law professor Josh Blackman: "Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)"

 

In an email to THE WEEKLY STANDARD, Douglas Laycock explains why the Indiana RFRA's inclusion of corporations isn't really different from federal RFRA:

 

On corporations: The United States has what is commonly known as “The Dictionary Act.” At the very beginning of the United States Code (Title 1, section 1) is a series of definitions. As used in this Code, unless the context otherwise requires, these words have the following meaning. The federal RFRA protects every “person,” and the Dictionary Act defines “person” to include corporations. Most states have the same sort of Dictionary Act, and the same definition. In Indiana, they put it directly into the RFRA, presumably because of the litigation culminating in Hobby Lobby. That’s not really a difference.

 

 

 

Epps wrote that a "lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage." What Epps doesn't acknowledge is that only two of the nine Supreme Court justices (Sonia Sotomayor and Ruth Bader Ginsburg) dissented from the majority opinion's holding that closely-held coporations may defend themselves under federal RFRA (Kagan and Breyer didn't take a position).

 

As for Epps's claim that the Indiana RFRA differs from the federal RFRA in allowing people to defend themselves in private lawsuits, Josh Blackman points out that there hasn't been unanimous agreement, but "four federal courts of appeal and the Obama Justice Department have all taken the position that [federal] RFRA can be used as a defense in private suits."

 

 

So I stand by my original claim that these two features of the Indiana law cited by Epps are not significantly different from the federal law.

 

 

 

.

[TH3]

 

The author can do that

 

Why The Atlantic Is Wrong about Indiana's Religious Freedom Law

by John McCormack

 

 

Garrett Epps writes at The Atlantic that I am wrong to say there aren't "significant" differences between the federal Religious Freedom Restoration Act (RFRA) and Indiana's RFRA.

 

According to Epps, who teaches creative writing and constitutional law at the University of Baltimore, there are two major differences between the Indiana law and the federal law. "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," writes Epps. "Second, the Indiana statute explicitly makes a business’s 'free exercise' right a defense against a private lawsuit by another person, rather than simply against actions brought by government."

 

"I am not sure what McCormack was thinking," writes Epps, referring to my claim that there aren't any "significant" differences between Indiana's RFRA and the federal RFRA.

 

If Epps could have continued reading just a bit longer, he would have discovered that I back up this claim by directing readers to the writings of University of Virgina law professor Douglas Laycock, Stanford University law professor Michael McConnell (a former federal judge on the Tenth Circuit Court of Appeals), and South Texas law professor Josh Blackman: "Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)"

 

In an email to THE WEEKLY STANDARD, Douglas Laycock explains why the Indiana RFRA's inclusion of corporations isn't really different from federal RFRA:

 

 

Epps wrote that a "lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage." What Epps doesn't acknowledge is that only two of the nine Supreme Court justices (Sonia Sotomayor and Ruth Bader Ginsburg) dissented from the majority opinion's holding that closely-held coporations may defend themselves under federal RFRA (Kagan and Breyer didn't take a position).

 

As for Epps's claim that the Indiana RFRA differs from the federal RFRA in allowing people to defend themselves in private lawsuits, Josh Blackman points out that there hasn't been unanimous agreement, but "four federal courts of appeal and the Obama Justice Department have all taken the position that [federal] RFRA can be used as a defense in private suits."

 

 

So I stand by my original claim that these two features of the Indiana law cited by Epps are not significantly different from the federal law.

 

 

 

.

 

 

I don't agree with Sandy Beach too much - but I agree with him this morning. This is just another example of the GOP/Con latching on to a no win issue. This issue does nothing to get them closer to the white house - all it does in alienate MOST of the voters in the USA. This may delight the base but independent voters, women, etc that make the difference in the general election - people like me - this is simply ugliness. How do these laws make any difference in anyone's lives?

 

These also highlight the hypocrisy of the TP/Libertarians: You say - let entities act as they wish and let the market decide. Well Indiana and now Arkansas are acting as they wish - and the MARKET is deciding that maybe they don;t want to deal in this environment by walking,

 

Market forces at work.

[DC Tom]

 

I don't agree with Sandy Beach too much - but I agree with him this morning. This is just another example of the GOP/Con latching on to a no win issue. This issue does nothing to get them closer to the white house - all it does in alienate MOST of the voters in the USA. This may delight the base but independent voters, women, etc that make the difference in the general election - people like me - this is simply ugliness. How do these laws make any difference in anyone's lives?

 

These also highlight the hypocrisy of the TP/Libertarians: You say - let entities act as they wish and let the market decide. Well Indiana and now Arkansas are acting as they wish - and the MARKET is deciding that maybe they don;t want to deal in this environment by walking,

 

Market forces at work.

 

It's less people being upset that the market is deciding, than that the market is deciding out of ignorance.

 

And it's not "the market" that's deciding. It's mob rule. The market isn't taking action against Indiana, they are threatening Indiana with action.

[B-Man]

The important thing is that this debate has BEEN GOING ON FOR DECADES, but the opportunity of this similar law being passed has enabled the media to concentrate on this story night and day.

 

 

 

because we certainly don't want the threat of a nuclear-armed Iran to distract us from America's #1 threat - Indiana bakeries

 

 

and we don't want the fact that our "fate accompli" next Commander in Chief broke any government law she wished to distract us from "mandatory" wedding photos.

 

 

 

 

 

 

[TH3]

 

It's less people being upset that the market is deciding, than that the market is deciding out of ignorance.

 

And it's not "the market" that's deciding. It's mob rule. The market isn't taking action against Indiana, they are threatening Indiana with action.

 

Talk about the market deciding out of ignorance - I would say the supporters of this kind of legislation are the start of ignorant mob rule - Where is the problem that this legislation is addressing?

 

And as usual - when the market starts deciding and the TP/Libertarians don't like that outcome - all of a sudden is something different than market rule.

The important thing is that this debate has BEEN GOING ON FOR DECADES, but the opportunity of this similar law being passed has enabled the media to concentrate on this story night and day.

 

 

 

because we certainly don't want the threat of a nuclear-armed Iran to distract us from America's #1 threat - Indiana bakeries

 

 

and we don't want the fact that our "fate accompli" next Commander in Chief broke any government law she wished to distract us from "mandatory" wedding photos.

 

 

 

 

 

 

This law is nothing but a pander to the religious right and it is structurally different than others - It is crap and as long as the GOP focuses on this crap - they don't have a shot at the WH.

 

Hey - keep it on the books - let it ride out - and see how the market decides.

 

I am of the thought that we should just give the keys to the whole GOP/TP platform - let them write, pass and enact ALL the things they want and see what kind of country we have. Get it out of our system.

[DC Tom]

 

Talk about the market deciding out of ignorance - I would say the supporters of this kind of legislation are the start of ignorant mob rule - Where is the problem that this legislation is addressing?

 

The problem of the government making it overly burdensome for people to exercise the expression of religion.

 

Have you read the law, or just opinion pieces on it?

[B-Man]

 

The problem of the government making it overly burdensome for people to exercise the expression of religion.

 

Have you read the law, or just opinion pieces on it?

 

 

Both the Federal Law and the Indiana law were written out in the article in Reply #21............. That he dismissed.

 

 

The law continues to be misrepresented,

 

RFRA is a shield, not a sword, It can be used to defend oneself against lawsuits or administrative action. It can’t be used affirmatively to try and deprive others of the protections of law.

 

The facts do not matter. The reason the media -- including Fox News -- put scary quotes around religious freedom is the media is part and parcel to this charade.

 

Hands Up!

Koch Brothers!

I Can't Breathe!

One In Five Raped!

 

Rare is the reporter who cares about the truth anymore.

 

This is Saul Alinsky's world. Smear, isolate and ridicule the opposition.

 

This is the world we are in.

 

 

.

 

 

[DC Tom]

 

 

Both the Federal Law and the Indiana law were written out in the article in Reply #21............. That he dismissed.

 

 

The law continues to be misrepresented,

 

RFRA is a shield, not a sword, It can be used to defend oneself against lawsuits or administrative action. It can’t be used affirmatively to try and deprive others of the protections of law.

 

The facts do not matter. The reason the media -- including Fox News -- put scary quotes around religious freedom is the media is part and parcel to this charade.

 

Hands Up!

Koch Brothers!

I Can't Breathe!

One In Five Raped!

 

Rare is the reporter who cares about the truth anymore.

 

This is Saul Alinsky's world. Smear, isolate and ridicule the opposition.

 

This is the world we are in.

 

 

.

 

 

 

I know. I read the law before you even posted those.

 

I also read the judicial precedents. What's interesting is that the problem with the law isn't with the law itself as much as with two Supreme Court decision - Citizens United and Hobby Lobby - which granted corporations equal protection as people under the First Amendment. (And in the Hobby Lobby decision, Alito inartfully dodges any question of an interpretation of the federal RFRA by simply saying "It doesn't apply."

 

But the federal law has been tested in court some twenty times (don't know about the other state laws; didn't dig that far), and until Hobby Lobby the courts have consistently ruled based on a clear distinction between "belief" and "expression," in that it's not enough to argue that the government's forcing you to do something counter to your religious beliefs, but you have to make a clear case that the government is expressly inhibiting your ability to worship.

 

And the courts have taken a pretty narrow view on what "expression" is - like I said before, if you argue that you shouldn't have to bake a wedding cake for a gay couple because you have a religious objection to gay marriage, you'd better be able to argue in court that baking is how you worship God. Good luck with that, since this country has a long-standing recognition of the division of secular and religious activities (in fact, it's the basis for "freedom of religion" in the First Amendment - a facile argument that the First Amendment prevents secular activities from being forced on one against one's religious beliefs falls afoul of the basis of the First Amendment itself.)

 

AND - the most important point - discrimination isn't "allowed" under the RFRA any more than it was before it. You can still elect not to serve a patron on religious grounds. And the state will still do whatever the state does in discrimination cases. What the RFRA does is allow an affirmative defense against the state under a rather narrow set of criteria - the baker in the above example has the burden in court of proving that a "substantial burden" has been placed on his "religious expression" (not just "belief")...by being force to bake a cake for people he doesn't like? Good luck floating that in court. Stronger arguments under the federal RFRA have been thrown out.

 

All the law does is give people an opportunity to challenge heretofore unchallengable administrative rulings by the government. That is not a bad thing.

 

And FURTHERMORE...all this concentration on "gay marriage" obscures other impacts of the law as well. For example: the Muslim mechanic who refuses to change the oil in a woman's car, because "women shouldn't be allowed to drive." That's much more slippery, since a conservative interpretation of Islam considers every daily action to be an act of worship, there actually is a reasonable argument to be made that an oil change is an expression of religion in that context. (And I'd thought of other examples, but I'd forgotten them.)

 

Really, all I think Indiana's RFRA needs is an amendment clarifying that "belief" and "expression" aren't the same thing - "You can believe what you want, but you don't always get to DO whatever you want" is a consistent principle in jurisprudence as well (or was, until the idea of "hate crimes" started.) The real risk of this law is the potential for abuse, which would be substantially reduced by that clarification.

[Tiberius]

And so it begins...

 

http://www.eater.com/2015/4/1/8325219/indiana-pizza-parlor-public-deny-service-lgbt-gay-law-discrimination

 

 

[TH3]

The problem of the government making it overly burdensome for people to exercise the expression of religion.

 

Have you read the law, or just opinion pieces on it?

 

What problem? When where is it burdensome for expression of religon? What this law does is unburdens the ability to be discriminatory.

 

Keep at it GOTP.....please the few and alienate the many....is this really worth it?

 

The Market Speaks.....Arkansas backs off

[DC Tom]

And so it begins...

 

http://www.eater.com/2015/4/1/8325219/indiana-pizza-parlor-public-deny-service-lgbt-gay-law-discrimination

 

 

 

Nice article. Headline is "pizzeria refuses service to gay customers." Story is "pizzeria serves gay customers, but won't cater a gay wedding if asked."

[Tiberius]

What problem? When where is it burdensome for expression of religon? What this law does is unburdens the ability to be discriminatory.

 

Keep at it GOTP.....please the few and alienate the many....is this really worth it?

 

The Market Speaks.....Arkansas backs off

He doesn't care. He just knows a Republican is being attacked so he jumps mindlessly into the defense.

[DC Tom]

What problem? When where is it burdensome for expression of religon? What this law does is unburdens the ability to be discriminatory.

 

Keep at it GOTP.....please the few and alienate the many....is this really worth it?

 

The Market Speaks.....Arkansas backs off

 

No, it doesn't. Read the damned law.

[Tiberius]

 

Nice article. Headline is "pizzeria refuses service to gay customers." Story is "pizzeria serves gay customers, but won't cater a gay wedding if asked."

That's not refusing service to gay customers? Is that what you are actually saying? You and Chef and this reading comprehension thing.

 

 

Who cares if you read the law, you'd read it the way you want! Idiot!

 

No, it doesn't. Read the damned law.

Yup! Read it like you do!

[Chef Jim]

That's not refusing service to gay customers? Is that what you are actually saying? You and Chef and this reading comprehension thing.

 

 

Who have they refused service to?

[B-Man]

 

Who have they refused service to?

 

 

No one.

 

 

 

.

[Chef Jim]

 

 

No one.

 

 

 

.

 

 

Shhhhhh...........

[DC Tom]

That's not refusing service to gay customers? Is that what you are actually saying? You and Chef and this reading comprehension thing.

 

 

Who cares if you read the law, you'd read it the way you want! Idiot!

Yup! Read it like you do!

 

The clearest indication that you don't know what you're talking about is that you think the law solely targets gays for discrimination.

[TH3]

 

No, it doesn't. Read the damned law.

 

I did.....A$$....Again - Tell me where someone has been harmed that this law helps....sorry - the "market" has read right through this law and is reacting accordingly....

 

Keep playing that winning hand though! It got you 8 years of BHO and by doubling down on it you might just get 8 years of HRC

 

The clearest indication that you don't know what you're talking about is that you think the law solely targets gays for discrimination.

 

So it just might target gays for discrimination though huh?

[Chef Jim]

 

I did.....A$$....Again - Tell me where someone has been harmed that this law helps...

 

http://blogs.findlaw.com/free_enterprise/2015/02/in-gay-couples-wedding-cake-lawsuit-ore-bakery-loses-again.html

 

That was hard.