Posts Tagged As: Right-To-Discriminate

Report: Indiana GOP Leaders Circulating Proposed Changes To License-To-Discriminate Bill

Jim Burroway

April 1st, 2015

The Indianapolis Star is reporting that Indiana GOP leaders are vetting a proposed deal with business leaders and the Governor that would explicitely state that the law couldn’t be used as a defense against anti-gay discrimination:

A copy of the language obtained by The Indianapolis Star was being presented to Gov. Mike Pence Wednesday morning. The measure would specify that the new religious freedom law cannot be used as a legal defense to discriminate against residents based on their sexual orientation.

The measure goes much further than a “preamble” that was proposed earlier in the week, explaining exactly what the RFRA law does. But it doesn’t go as far as establishing gays and lesbians as a protected class of citizens or repealing the law outright, both things that Republican leaders have said they could not support.

The clarification would say that the new “religious freedom” law does not authorize a provider – including businesses or individuals – to refuse to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity, in addition to race, color, religion, ancestry, age, national origin, disability, sex, or military service.

The proposed language exempts churches or other nonprofit religious organizations – including affiliated schools – from the definition of “provider.”

Democrats continue to call for full repeal of the state’s RFRA. The bill’s supporters, including the American Family Association of Indiana, the Indiana Family Institute, and Advance America, have not commented on the proposed changes. It’s also not clear how the proposed changes will go down with the Republican caucus in the legislature. They are due to meet tomorrow at noon to discuss the chagnes. Those reactions will be telling, considering all of the objections voiced by Pence and others that the bill somehow had nothing to do  with making super-doublely sure that discrimination against LGBT people would be perfectly legal.

Arkansas U-Turn: Gov Calls for Changes to License-To-Discriminate Bill

Jim Burroway

April 1st, 2015

Supporters of the Arkansas License-to-Discriminate bill have argued that their state version of RFRA “mirrors” the federal law signed by President Bill clinton in 1993 — which it clearly doesn’t. Arkansas Gov Asa Hutchison (R) had promised to sign the law as soon as it reaches his desk. It reached his desk yesterday, but Hutchison announced in a news conference today that he is instead calling for changes in the bill. In a statement that acknowledges that the state RFRA’s supporters had been much less than honest in claiming that it mirrored the federal law, Hutchison called on the General Assembly to either recall the bill or amend it to bring it in line with federal law:

Hutchinson said he is asking that HB1228 be recalled so amendments can be added that bring it closer to the federal law. Or, he said, the changes could be made by new legislation. “The bill that is on my desk at the present time does not precisely mirror the federal law,” he said.

Senate President Jonathan Dismang (R-Searcy) and House Speaker Jeremy Gillam (R-Judsonia) stood alongside Hutchison when he made the announcement. Hutchison didn’t say whether he would veto the bill if changes weren’t made, but he did suggest another option of issuing an executive order “to make it clear that Arkansas wants to be a place of tolerance.” He acknowledged however that an order “would not be the same as a legislative fix.” As with Indiana, caution is in order. Without concrete proposals and specific language changes available, we will still have to wait to see whether this represents a true backtrack or another try at a pig’s makeover.

Hutchison also acknowledged that the controversy has deeply divided ths state — and his own family: his son signed an online petition calling on the Governor to veto the bill. Walmart, the state’s largest employer, along with several state chambers of commerce and mayors had earlier called for a veto.

Meanwhile In Arkansas

Jim Burroway

April 1st, 2015

The Arkansas legislature yesterday sent a License-To-Discriminate bill to Gov. Asa Hutchison (R), who has promised to sign the bill into law, but not before calling a news conference for later this morning. As in Indiana, supporters of the Arkansas RFIA have striven to minimize both its intent and intended effects, claiming that all it is is a state version of the federal RFIA signed into law in 1993. In fact, Arkansas’ (and Indiana’s) go way beyond federal legislation in several respects:

  • The Federal law was narrowly written to protect religious worship, observations and related practices which may be “substantially burdened” by governmental intrusion. The I laws were written specifically to provide expansive protections for all claims which simply “burden” — without qualification — someone’s claimed religious belief, regardless of how peripheral or incidental those claimed beliefs may be to a claimant’s religion — and regardless of whether the claimant’s denomination espouses those beliefs or not. (The Indiana law is worse in this regard; it specifies “burden or is likely to burden.”)  This dramatically lowers the bar and will tie courts’ hands when these lawsuits come to trial.
  • The Federal law protects against governmental intrusion. The state laws are designed to provide a nearly carte-blanch right to discriminate regardless of whether governmental action is involved or not.
  • The Federal law applies to individuals and religious institutions. The state laws apply to everyone and anyone, including corporations, limited partnerships, private companies, non-profits, and individuals employed by them or the government. This expansion goes far beyond the federal RFIA, and it even goes beyond the Supreme Court’s Hobby Lobby decision, which limited the federal expansion to “closely held corporations.”
  • But the most significant difference between the Federal and state laws is that the Federal law was designed with the goal that neither party is significantly harmed by the law’s outcome. But the state RFIAs have been designed with the specific goal to inflict harm on anyone who gets on someone else’s bad side and can claim a religious reason to retaliate.

These license-to-discriminate bills represent a massive attack against all anti-discirmination protections, not just the LGBT community. Members of the Little Rock Nine, who endured death threats and assaults to desegregate Little Rock High School in 1957, have denounced the Arkansas bill:

“‘Injustice anywhere is a threat to justice everywhere,’ Dr. Martin Luther King, Jr. told us, and those words are as true today as they were half a century ago. In our home state of Arkansas, legislators are attempting to enshrine their own hatred into law,” said (Ernie) Green and (Carlotta) Walls. “Once again, opponents of equality are giving credence to those who would refuse to serve their own neighbors under the guise of ‘religious liberty,’ telling us that our freedom of religion, cemented into law by the Constitution and by state law, is under attack. But we stand with our lesbian, gay, bisexual and transgender brothers and sisters, as well as religious minorities and others who could fall victim to discrimination under HB 1228, and we stand against this dangerous and derogatory legislation in its current form. This bill must be amended to protect civil rights or abandoned entirely.”

Gov. Pence Calls For Changes In Indiana’s Right-To-Discriminate Law

Jim Burroway

March 31st, 2015

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This is what Indiana Gov. Mike Spence woke up to this morning: A a rare front-page editorial in the Indianapolis Star demanding that Pence and the state legislature “stop clinging to arguments about whether RFRA really does what critics fear; to stop clinging to ideology or personal preferences; to focus instead on fixing this.” Pence responded to that and other criticisms from business leaders around the country with a news conference today in which he 1) blamed his critics for spreading ” misunderstanding and confusion and mischaracterization” (while spreading a different kind of misunderstanding and mischaracterization himself; more on that in a moment), and 2) called for the legislature to implement unspecified “clarifications” to the law.

What those clarifications might be is anyone’s guess, and caution is in order. After all, the devil is always in the details, as Pence well knows as he mischaracterizes the very law he signed last Thursday. In this morning’s news conference, Pence doubled down on the claim that the law was nothing more than a state law mirroring the federal RFRA signed by President Clinton in 1993. Of course, the law’s supporters have already revealed the differences, as Rob Tisinai pointed out yesterday. Today, Sen. Chuck Schumer (D-NY), who is likely to become the next Senate Minority Leader, and who co-wrote the federal RFRA with Sen. Ted Kennedy (D-MA), blasted Pence’s mischaracterization on Facebook:

In the uproar over the recently passed Indiana Religious Freedom Restoration Act (RFRA), defenders of the bill like Indiana Gov. Pence are trying to hide behind the argument that the law “simply mirrors” the federal RFRA Sen. Ted Kennedy wrote and I introduced as a Congressman in 1993. That may be true only if you’re using a Funhouse mirror. In reality, it is completely false, and a disingenuous argument to boot; they should cease and desist immediately comparing the federal RFRA of 1993 to their present, misguided law.

There are two simple reasons the comparison does not hold water.

First, the federal RFRA was written narrowly to protect individuals’ religious freedom from government interference unless the government or state had a compelling interest. If ever there was a compelling state interest, it is to prevent discrimination. The federal law was not contemplated to, has never been, and could never be used to justify discrimination against gays and lesbians, in the name of religious freedom or anything else.

Second, the federal RFRA was written to protect individuals’ interests from government interference, but the Indiana RFRA protects private companies and corporations. When a person or company enters the marketplace, they are doing so voluntarily, and the federal RFRA was never intended to apply to them as it would to private individuals.

Because of these significant, legal differences, the Indiana RFRA in no way resembles the intent or application of the federal RFRA. As the signer of the bill, Governor Pence should put a stop to it immediately.

Garrett Epps at the Atlantic describes a key event which led Indiana to add private companies and corporations in its law:

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.

What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Storesin 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.

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. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. WillockIn that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”

Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision.  Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down.

Pence nevertheless held firm in this morning’s news conference that the problem wasn’t with the law itself, but with “perception”:

But the governor, clearly exasperated and sighing audibly in response to questions, seemed concerned mostly with defending the law and the intent behind it, saying, “We’ve got a perception problem,” not one of substance. He referred to “gross mischaracterizations,” “reckless reporting by some in the media,” “completely false and baseless” accounts of the law, and “the smear that’s been leveled against this law and against the people of Indiana.”

“If this law had been about discrimination, I would have vetoed it,” he said. “I don’t believe for a minute that it was the intention of the General Assembly to create a license to discriminate, or a right to deny services to gays, lesbians or anyone else in this state, and that was not my intent, but I appreciate that that’s become the perception.”

Pence blames “reckless reporting,” but that “perception,” as he puts it, is largely attributable to two things: the text of the law itself, and Pence’s refusal four times to answer a straight up yes/no question on Sunday about whether an Indiana business can safely discriminate against a gay customer under the new law. And if he didn’t think it was about discrimination, then he didn’t pay much attention to the debate in the state legislature leading up to the votes, nor did he happen to notice those who stood behind him as his signed the bill into law. The Governor’s office refused to identify the people attending the private signing ceremony, but GLAAD did some of that work for them.

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Click to enlarge.

But when you get past his self-serving complaints today, Pence has appeared to have backed down. The Washington Post’s Paul Waldman calls that a “significant victory” for gay Hoosiers:

But the pressure Pence got from people both within Indiana and around the country has essentially forced him to be true to his word. Up until now, Pence has been saying that the law was not intended to give businesses in Indiana the right to discriminate against gay people. Now he’s saying that he wants to put that explicitly within the law itself. That’s a huge win for gay people who don’t want to be discriminated against, and makes it more likely that the next state that passes a law like this one — and there are similar bills pending in multiple states — will include a similar clarification.

Not only that, Pence went so far as to say, “No one should be harassed or mistreated because of who they are, who they love or what they believe. I believe it with all my heart.” The “who they love” part is not the kind of language one usually hears about LGBT people from Republicans, particularly those as conservative as Pence.

For me though, the devil will still be in the details. It’s unclear how Pence and the GOP-controlled legislature will “fix this thing” while holding to their vow not to add sexual orientation and gender identity to the state’s anti-discrimination laws. When asked about that this morning, Pence replied, “I’ve never supported that, and I want to be clear, it’s not on my agenda. I think it’s a completely separate question.”

Despite (or perhaps, because of) the controversy, Pence enjoys powerful support within the Republican party. A rash of potential (and one declared) presidential candidates have already strongly defended Indiana’s RFRA in its current form, including former Florida Gov. Jeb Bush, Florida Sen. Marco Rubio, Louisiana Gov. Bobby Jindal and Texas Sen. Ted Cruz.

Supporters (accidentally) reveal why the Indiana law is different

Rob Tisinai

March 30th, 2015

Supporters of Indiana’s “religious freedom” bill have dishonestly claimed it’s just like its cousins in federal law and 19 other states. But the irony of pushing a lie again and again is that your efforts might inadvertently uncover the truth. That’s exactly what happened with The Federalist’s article, “Meet 10 Americans Helped By Religious Freedom Bills Like Indiana’s.” It gives examples of people whose religious freedom was protected from senseless government intrusion, like:

  • Native American children who wanted to keep their hair long, despite school policy,
  • A Jewish prisoner denied Kosher meals, and
  • A religious non-profit that “provides housing and religious instruction to petty offenders released from state prisons,” but was threatened by a new city ordinance.

It’s a great list. These are everyday people, often in powerless situations, who simply want to live according to their beliefs without harming anyone. But it’s a bad list, too, because far from showing how the Indiana law is just like the others, it actually highlights two key differences.

1.  No one was harmed by the free exercise of religion in these cases.

Long hair, kosher  meals — no one can claim real harm from such things, nothing they could prove in court, at least. And if some private individual had been harmed, they could have sued, because the federal Religious Freedom Restoration Act (and most state RFRAs) doesn’t offer protection against suits brought by private individuals.

But the Indiana law is different. It provides exactly that sort of protection. It’s what this part of the law means:

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.

I emphasized the key bit. Other laws don’t contain this. Other laws require the government to be part of the action before you can invoke an RFRA defense. But if I, as a private citizen, can show you’ve harmed me — say, by firing me from a job or denying me housing or services — then I can bring suit on my own and you can’t invoke an RFRA in your defense. In Indiana, though…you can.

I hope that doesn’t seem trivial. Consider: when only the government is involved, when no one can actually prove harm (as in the cases above), there’s a good chance the intrusion on religious freedom really is pointless, and it makes sense to protect against it. But when it goes beyond the government, when your free exercise is harming those around you to the degree that they can prove damages in court, then you’re just claiming a special religious right to hurt people. And is that what we want religious freedom to be?

2. None of the people or group protected were for-profit organizations.

Our hearts and minds go out to the people on this list because they have a personal conscience or (in the case of the halfway house) their entire existence is centered on religious conviction. That isn’t generally true of for-profit businesses (and certainly not at a place like Exxon, for instance, which for years refused to include gay people in it nondiscrimination policy). That’s why most RFRAs only protected individuals — actual living humans — and religious groups. This may have changed with the Supreme Court’s Hobby Lobby decision, but it was never the intent of the people who passed those laws.

But the Indiana law is different. It explicitly includes things like a “partnership, a limited liability company, a corporation,a company, a firm, a society, a joint-stock company…regardless of whether the entity is organized and operated for profit or nonprofit purposes.” Sure, you’ll need to show the individuals involved “have control and substantial ownership of the entity,” but, hey, that’s what legal departments are for. This is an enormous expansion, and whether you think it’s justified or not, you can’t claim it’s just like all the other RFRAs that have been around for years.

This all takes us far away from where we started: Powerless individuals and constitutionally-protected religious groups who want to live their lives and fulfill their missions while doing harm to no one. We end up with a whole new arena filled with for-profit businesses that have a new, potentially potent defense they can invoke as convenient when they do harm. It’s just like in the Bible, except in this bizarro version, Jesus is on the side of the money-lenders.

More Proof: They Really Want To Discriminate Against You, Eight Times Over

Jim Burroway

March 30th, 2015

Indiana Gov. Mike Pence (R) went into full damage control yesterday with an appearance on ABC’s “This Week.” George Stephanopoulos asked Pence straight up four times whether an Indiana florist is allowed to discriminate under Indiana’s new law, and six times Pence would not give an answer.

If anyone is asked whether a business is allowed to discriminate four times and he refuses to give answer  four times, you can safely take that answer as a yes. You can be doubly assured of that because Stephanopoulos asked four more questions about whether Pence would pursue protections for LGBT Hoosiers. Pence was a bit more direct about that. That answer is no.

Here’s the Proof: They Really Do Want to Discriminate Against You

Jim Burroway

March 27th, 2015

I’ve been missing in action the past few months, working ten to eleven hour days at work and having just about every other minute outside of work consumed by other things. This pace is likely to continue at least through May. So I haven’t been able to keep up with the slew of right-to-discriminate bills making their appearance in state legislatures across the country as part of a larger backlash against an anticipated Supreme Court ruling sometime this summer on marriage equality. Some of that backlash is comical, like Oklahoma’s deciding not to marry straight people if gays can marry. Other examples are far more sinister, like Indiana’s sweeping law that gives any Indiana business or individual license to discriminate against anyone — including Africa-Americans, Jews, Catholics, Muslims, women, foreigners, and LGBT people. In fact, Indiana’s law is so sweeping that it allows anyone to violate any law unless there is a “compelling governmental interest… of the highest magnitude,” which I guess may exclude most felonies, although the wording of the bill doesn’t exactly make that clear.

Despite intense lobbying by business leaders, Gov. Mike Pence (R) signed the bill into law while protesting that “This bill is not about discrimination, and if I thought it legalized discrimination in any way I would’ve vetoed it.” But of course, you know as well as I do that all of these bills making their way through state legislatures are precisely about discrimination. And here’s the proof.

A similar right to discriminate bill was making its way through the Georgia House this week. It actually passed the House Judiciary Committee yesterday, but not before an amendment was added by State Rep. Mike Jacobs (R-Brookhaven), who opposed the bill:

“I take at face value the statements of the proponents that they do not intend discrimination with this bill but I also believe that if that is the case, we should state that expressly in the bill itself. That is what the amendment does.”

Jacobs’s amendment added language to explicitly prevent “discrimination on any ground prohibited by federal, state or local law.” Bill supporter Rep. Barry Flemming (R-Harlem) complained that “This is the amendment that will gut this bill.” Which, of course, it does. And the reason that an anti-discrimination clause “guts” a bill that is “not about discrimination” is because you simply can’t get around the fact that, despite the Indiana Governor’s protest, discrimination really is the whole point of the bill! And so Flemming announced that if there is an amendment that says the bill would not allow discrimination, he would no longer support it.

So let me emphasize this: he would not longer support a bill that reiterated that the bill was not about discrimination. Because if a bill says it’s not going to allow discrimination, then he considers that bill toxic. So toxic that after three Republicans on the committee joined six Democrats to approve the amendment, Flemming offered a motion to table the amended bill. The motion passed.

The Georgia bill appears to be gravely wounded, although just about anything can still happen in the final days of the legislative session. But along the way, the true colors of these bills’ supporters have been revealed. They will tell you that it’s not about discrimination, but when you get language prohibiting discrimination into the bill, they can’t support it. What more do you need to know?

    

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