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Understanding is a Three-Edged Sword: Religious Freedom and the Right to Discriminate

Updated on May 13, 2015
Governor Mike Pence
Governor Mike Pence | Source

The Law of Indiana

At the end of this article is the law, recently passed in Indiana, that has brewed a firestorm in the news and on social media. Many have said this law is not unlike many other laws passed in various states across the nation. They are wrong. Section 9 includes a phrase which makes this law drastically different. Section 9 reads:

Sec. 9. 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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.

Please note the underlined passage. This is the passage that the ACLU has stated makes this law different. When comparing this law to one Barack Obama voted for as an Illinois State Senator in 1998, Eunice Rho said:

“The Illinois law was written and designed to allow someone to [challenge] the government’s burdens on people’s religious beliefs. The Indiana law specifically says you can use the law in a lawsuit even if the government isn’t a party.”

The State Seal of Indiana
The State Seal of Indiana | Source

Acquiring Context

Please skip down to the bottom of this article and read the whole of this particular bill. Please note that at no time does this bill use the word Homosexual. It does not use synonyms or related words such as gay, lesbian, transgender, sexual orientation, etc.

So why does everyone assume this bill is about gays and gay rights?

There are many reasons. The first and foremost are the major political and legal decisions that have taken place over the last few years. Take into consideration Citizens United (more specifically: many of the decisions that have been made as a result of that decision), Hobby Lobby (for instance), and others that have made it clear that, recently, when a law passes referencing Religious Freedom that is usually a code phrase meaning Religious Freedom to Discriminate.

Coexist
Coexist | Source

First Edge: The Majority Religion

The first amendment to the United States Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first thing listed in the establishment of the rights of the citizen in the right to have their government devoid of religious establishment, the right to practice (or not to practice) the religion of your choice. The beautiful choice of phrase here is free exercise thereof.

So when a person's religion requires them to be a Conscientious Objector, the government has (mostly) made reasonable accommodations. In World War I, for example, these individuals would be assigned non-combat duties. Their have been some rather difficult exceptions to our government acting with a true eye toward the freedom of religion. But, for the most part, the United States has been good about this.

Religion has been used, however, as an excuse for bigotry for far longer than our nation has existed. Biblical passages were used to justify the separate but equal lie that was foisted upon the American public for many, many years. When religion stops working, tradition or faux-science is used. When that becomes a problem, a desire not to disrupt the status quo or a call for patience on the part of the victim becomes the underlying pseudo-logic.

Unfortunately, modern history has shown that violence is almost always the state of affairs before true change will take place. This is not to say that the victims rise up and demand change... no, usually is it violence against the victims as they attempt to work through the processes placed before them that usually calls the people on the side-lines to action.

Let me be clear: if your religion or your faith calls upon you to treat peaceful people as less than human, your religion or faith has no place in the 21st century.

Woolworth Lunch Counter Sit-in - Jackson, Mississippi
Woolworth Lunch Counter Sit-in - Jackson, Mississippi | Source

Second Edge: The Outcasts

This nation has a long history of defining us and them. Them is always some group that is just about to destroy our way of life. They are right on the cusp of making us... well, not us. We have had many guises for the un-American boogie man...

Blacks

Brought over as slaves — against their will — this group would have to hear white people scream at them phrases as nonsensical as "go back to Africa" as they attempted to gain such basic rights as the ability to not be owned by another human being. Post Civil War, they were grated the right to vote by law, but denied that right in fact until after the Selma protests. Despite this, their right to vote is being curtailed today under the guise of voter protection.

Catholics

One of the earliest boogie-men were the Catholics. This nation was built on the idea of religious freedom, but more often than not that was defined as freedom from the Catholic Church. Hate campaigns trying to make it harder (if not impossible) for Catholics to come to America were abhorrent. The calls to keep them out of this nation were so virulent that the nation would be 184 years old before a Catholic would be elected President.

Women

The Civil Rights movement skipped over women altogether. They would have to wait until the 1970s to get some recognition as an outcast group. Their struggle moves forward inch by inch with heavy resistance. If you doubt this fact, look up the Wage Gap (and especially the Pay Discrepancies in Nursing), GamerGate (and Female Card Players), US Military Restrictions for Women, the Pantsuit Rebellion, etc., etc., ad nauseum. Women are treated as second class citizens in many areas of society today that literally make no damn sense what-so-ever.

And so on...

The list goes on. From Jewish people to practitioners of alternative religions (e.g., Wicca) to those with no religion at all... the American people have no problem finding threats to their daily existence.

If you are looking at the list above and wondering how Religious Freedom interacts with this, then you are not paying attention. Blacks — or more accurately, non-Caucasians — were seen as mongrel races that were beneath the obviously superior people of God's choosing. Biblical passages were preached to justify slavery, sub-human treatment, second-class citizenship, and so on. If you think your stomach can handle it, go read up about the Piggy Park case. The Protestant religions often portrayed Catholics as non-Christians who worshiped Mary and the Saints above God.

Women have been denied everything they have ever been denied in the name of maintaining or restoring the Biblical view of the nuclear family. Much of what keeps a woman from being equal to a man in this nation stems directly from a traditional Biblical world-view of a woman's role in society. From a Biblical standpoint, a woman is a piece of property — owned first by her father, then by her husband. If this is unclear, please note that in some interpretations of Biblical passages, it is impossible for a man to rape his wife, because he owns her. United States law agreed with this Biblical interpretation until the 1970s. It would not be illegal to rape your wife in all 50 states until 1993.

In this parade of outcast groups in American society, the LGBT community is just the latest group to garner attention.

Third Edge: Unintended Consequences

It is hypothesized that the intent of laws such as the one passed in Indiana is to allow Christians to discriminate against the LGBT community. And, as I read this law (and read the legal opinions of those who are experts in law), this appears to be one of the things that can happen with this law. If a person operating a business is asked to perform a service which is contrary to their religious beliefs, this law will give them a legal pathway to refusing to perform that service on religious grounds without repercussion. As an equation, this reads:

If {person(s)} hires {provider} to {service}, and {provider} feels that {person(s)} or {service} goes against their {religion} teachings, they can refuse without fear.

On the surface this is a good thing. But let us look at this and plug in some values.

The Firestorm Assumption

The talk over the last few days has been over some scenario such as this one:

  • Person(s): {a gay couple}
  • Provider: {a bakery}
  • Service: {bake a Wedding cake}
  • Religion: {Christian}

If a gay couple hires a bakery to bake a Wedding cake, and bakery feels that a gay couple or baking a gay couple's Wedding cake goes against their Christian teachings, they can refuse without fear.

It would appear that this is the intent (according to some) of this law. My understanding of that law is that this would be protected. And this is the sort of 'lunch counter' antics the LGBT community is afraid of.

The Inverse Proposition

Does this law work in reverse? Let's look:

  • Person(s): {a Christian couple}
  • Provider: {a bakery owned by a member of the LGBT community}
  • Service: {bake a Wedding cake}
  • Religion: {???}

If a Christian couple hires a bakery owned by a member of the LGBT community to bake a Wedding cake, and bakery feels that a Christian couple or baking a Christian couple's Wedding cake goes against their expressed ideals, they can refuse without fear.

This does not work. The LGBT business is not refusing to do this on religious grounds — it is simply their expressed ideals. Even if the Christian denomination were to preach 'God Hates Fags' every day across the street from this Bakery, the LGBT-owned business has no legal recourse under this law.

Not Going to be Settled...

This issue is not going away anytime soon.

Expect it to get much, much worse long before it gets any better.

SENATE ENROLLED ACT No. 101

SENATE ENROLLED ACT No. 101
AN ACT to amend the Indiana Code concerning civil procedure.

Be it enacted by the General Assembly of the State of Indiana:

SECTION1.IC34-13-9 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:

Chapter 9. Religious Freedom Restoration

Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.

Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.

Sec. 3. (a) The following definitions apply throughout this section: (1) "Establishment Clause" refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) "Granting", used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.

Sec. 4. As used in this chapter, "demonstrates"means meets the burdens of going forward with the evidence and of persuasion.

Sec. 5. As used in this chapter, "exercise of religion" includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.

Sec. 6. As used in this chapter, "governmental entity" includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.

Sec. 7. As used in this chapter, "person" includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Sec. 9. 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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.

Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person's exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney's fees, to a person that prevails against the governmental entity under this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.

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