Getting Indiana’s RFRA Right

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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  1. Avatar Tod Kelly
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    If I had had more time this week, I’d have finished a post that says much of what the Vox article says.

    Legal wrangles aside, there’s a really prescient lesson conservative would be wise to heed heading into the 2016 election. Indiana’s RFRA law, in both the potential problems in expected to solve and the signaling it clearly was intended to communicate, was yet another example of what has become the GOP mainstay: symbolic legislation.

    If the right wants a shot at winning the White House, it’s going to need to work hard at championing, passing, and successfully implementing pieces of legislation that are designed to do more than “communicate conservative values” to the public at large.Report

    • Avatar Mark Thompson in reply to Tod Kelly
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      That sounds about right, though it’s worth mentioning that RFRAS will probably.backfire on social conservatives. They won’t actually legalize discrimination even though that’s their intent, but they will make it harder for them to pass laws and ordinances that try to.make it harder for minority religious groups.to succeed. which is what most RFRAS cases involve in practice.Report

    • Avatar James K in reply to Tod Kelly
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      @tod-kelly

      Tyler Cowan once remarked that much of politics is arguing over which groups should be awarded higher or lower status. It would seem that a significant faction in movement conservatism has boiled down politics to its essence.Report

    • Avatar trizzlor in reply to Tod Kelly
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      What’s amazing is that Pence couldn’t even manage the symbolic roll-out correctly, and is now getting attacked by the right for caving. Dude, the whole point of symbolic legislation is that you immediately give it full-throated support, paint yourself as a victim, and crank out the fund-raising emails! Ted Cruz knows how to do it (but Jeb … not so much).Report

  2. Avatar greginak
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    Arkansas just passed a law similar to the Indiana law. Don’t know exactly how similar in detail but in the same in general.

    heavy sighReport

  3. Avatar Stillwater
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    From the Vox link:

    Despite the claims of supporters and critics of RFRAs, legal experts are skeptical that the laws can be successfully used to defend legally prohibited forms of discrimination in court.

    Is it fair to say that the purpose of the Indiana law is find out whether or not those challenges will in fact be unsuccessful by allowing employers to actively discriminate against gays (or whoever) based on religious beliefs? If so, then isn’t it fair to criticize this law as attempting to pull back the boundaries of what constitutes discrimination for actions resulting from religious beliefs?

    Also, was the federal RFRA enacted for the express purpose of challenging the boundaries of discrimination insofar as an otherwise discriminatory action would be judged permissible if motivated by sincere religious conviction?

    That’s the way I’m reading the Indiana law. So it seems like people are entirely justified in being pissed off about it. And that holds irrespective of whether other states have enacted laws for the specific purpose. Seems to me, anyway.Report

    • Avatar Stillwater in reply to Stillwater
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      I think it was Mike Schilling who, on the other thread, wrote something to the effect that all the speculation about what the courts will and won’t do depends on who comprises the court. Both at the federal and state level.Report

    • Avatar Tod Kelly in reply to Stillwater
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      @ stillwater speaks mighty mighty truth with this:

      “Is it fair to say that the purpose of the Indiana law is find out whether or not those challenges will in fact be unsuccessful by allowing employers to actively discriminate against gays (or whoever) based on religious beliefs? If so, then isn’t it fair to criticize this law as attempting to pull back the boundaries of what constitutes discrimination for actions resulting from religious beliefs?”Report

    • Avatar zic in reply to Stillwater
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      @stillwater

      Maybe the law can’t forbid legal discrimination against those protected by law, but Indiana has no state-level law protecting gays now. It’s the ‘not already protected from discrimination’ part of this equation thats a problem. The only people protected here against discrimination are those protected by state law specifically. No protective law, no discrimination because of religion.Report

      • Avatar Stillwater in reply to zic
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        zic,

        If the reasoning behind the Indiana law is similar to the Georgia bill that was recently tabled, its purpose is to be at odds with whatever non-descrimination legislation exists at the state or municipal level. Indianapolis, for example, has “nondiscrimination laws that specifically protect gays and lesbians in employment, housing, education and public accommodation, which include business transactions” (quote from USA Today). So it seems the intent of the legislation is create court cases which will better define the limits of free exercise under the various RFRAs.Report

      • Avatar Stillwater in reply to zic
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        Adding…

        And if I’m understanding it correctly, the lever in all this is to allow, at the state level, the exercise of otherwise discriminatory practices based on sincere religious conviction.Report

      • Avatar zic in reply to zic
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        @stillwater So it seems the intent of the legislation is create court cases which will better define the limits of free exercise under the various RFRAs.

        Rather to provide room for the courts to dismiss cases that would potentially limit free exercise because some of that free exercise is discriminatory, I think.Report

      • Avatar zic in reply to zic
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        I wonder about this as it relates to another part of the 1st amendment: the right to petition.

        http://constitutionalism.blogspot.com/2011/06/case-interpreting-petition-clause.html

        If this analysis is correct; that the law is designed to prevent future discrimination cases from limiting discriminatory religious practice, isn’t that an infringement of another part of the 1st — the right to petition?Report

  4. Avatar Mike Schilling
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    I’m having trouble reading the Vox article, because every time they mention Pence I smile and think “What a great guy!”.Report

  5. Avatar Burt Likko
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    Well, @mark-thompson , I read the Vox piece and I agree that it’s better reporting than a lot I’ve seen elsewhere and as fair and balanced an explainer as is likely to be found.

    It does not relieve my anxiety about abuse of the invocation of religious belief as an individual opt-out from laws of general application. The Indiana RFRA makes explicit that it can be invoked against a private claim. I sue you in tort, you get to raise RFRA as an affirmative defense, and now I must bear the burden of proving that the tort law fulfills a compelling governmental interest in the least intrusive way possible.

    We have two law professors who say that RFRA hasn’t been used as a defense against discrimination anywhere in the past that they know of, and we have a quote from Hobby Lobby in which Justice Alito assures us that he thinks protecting against discrimination is a compelling governmental interest and that Title VII and unspecified similar antidiscrimination laws are indeed narrowly-tailored to fulfill that interest.

    Why it should be the case that making wedding cakes equally available to gay couples is a more compelling interest than Christians abstaining from governmentally-compelled sin remains a mystery to me; Justile Alito’s say-so in dicta doesn’t explain why he believes he’ll rule that way when the inevitable case is put to the test. I know for a fact that Free Exercise is a compelling governmental interest because it’s explicitly in the Constitution. I don’t know that preventing private parties from discriminating is in the Constitution at all.

    History tells me that Ollie’s Barbeque wants to discriminate and must be compelled by statutes enforced by courts not to do so. If Ollie can come up with a religious belief that exempts him from anti-discrimination statutes, I don’t understand what principled means is available to trump his claim of Free Exercise rights. Maybe it’s never happened before, but that doesn’t mean it wasn’t always available; innovative applications of old laws happen all the time. Maybe it’s been tried once or twice before but not succeeded (and I still haven’t read the Redhead case you’ve referred to) but legal and political trends point to this actually succeeding at some point, with the right facts, in the reasonably near future.

    I hope it doesn’t come to pass. Legislative amendments to RFRA would prevent it from ever happening; failing that, it falls to the likes of Samuel Alito to substantively address why commercial nondiscrimination is more important than an American’s right to live her life consistent with her religion — what we’re told is one of the most fundamental rights of all.Report

    • Avatar Mark Thompson in reply to Burt Likko
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      I recommend the article not necessarily because it will change minds, but because it’s the only article I’ve seen that provides the information necessary to form an opinion one way or another. Much of my frustration on this issue is that it’s the latest example of the media totally misreporting about a law or other legal issue, which has long been one of my hobby horses. So I think it’s important for me to call out when I see a media entity getting the story right and accurate and providing the basic relevant information.

      It mentions that much of the motive for the legislation is a desire to strike a symbolic blow against anti-discrimination protections for LGBT people (which the article points out exist in Indiana only at the municipal level), but it also discusses what existing precedent is on the controversial question. One of the more important things it emphasizes is that Indiana, at the state level, does not protect LGBT people at all and – I, and I suspect most here, would happen to agree – that this is really the bigger issue.Report

      • Avatar zic in reply to Mark Thompson
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        As far as I can tell, @mark-thompson and @burt-likko this law was a pre-emptive attempt to prevent some future discrimination case from, as the law’s proponents see it, restricting religious expression; it provides means for a future court to dismiss a discrimination case based on religious freedom. Is that correct?

        Which brings up another 1st-amendment concern; the right to petition; and I’m basing the concern on reading this: http://constitutionalism.blogspot.com/2011/06/case-interpreting-petition-clause.html

        The case in question was Connick v. Myers/Pickering, and from the link:

        It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.” Thomas v. Collins, 323 U. S. 516, 530 (1945); see also Wayte v. United States, 470 U. S. 598, 610, n. 11 (1985). “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances.” Thomas, 323 U. S., at 530. Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expression, although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance.
        Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims. See ibid. (rights of speech and petition are“not identical”). Interpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right. A petition conveys the special concerns of its author to the government and, in its usual form, requests action by the government to address those concerns. See Sure-Tan Inc., supra, at 896–897.
        This Court’s opinion in McDonald v. Smith, 472 U. S. 479 (1985), has sometimes been interpreted to mean that the right to petition can extend no further than the right to speak; but McDonald held only that speech contained within a petition is subject to the same standards for defamation and libel as speech outside a petition. In those circumstances the Court found “no sound basis for granting greater constitutional protection to statements made in a petition . . . than other First Amendment expressions.” Id., at 485. There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis; and if that is so, the rules and principles that define the two rights might differ in emphasis and formulation.

        Does the RFRA law, as applied to private companies and individuals, bring potentially infringe on other’s right to petition?

        And thanks, both of you, for tolerating my questions.Report

      • Avatar Mark Thompson in reply to Mark Thompson
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        As far as I can tell, @Mark Thompson and @Burt Likko this law was a pre-emptive attempt to prevent some future discrimination case from, as the law’s proponents see it, restricting religious expression; it provides means for a future court to dismiss a discrimination case based on religious freedom. Is that correct?

        So far as I can tell, this is probably true of many/most, but not all of the legislators who pushed it. It is not necessarily true of most of those who generally support RFRA legislation (myself included), as it seems that most Americans support it or something similar: http://www.bloomberg.com/politics/articles/2015-04-01/democrats-turn-against-religious-freedom-laws-voters-don-t-agree-with-them-

        Just because legislators might want a particular result from legislation doesn’t mean that they’ll get it, and in this case I’m firmly of the opinion that they wouldn’t, because precedent on this issue is really pretty clear, and it’s hard to imagine any respectable judge declining to import precedent from other states and the federal government to interpret identical language. In this case, one thing that’s especially weird – if that indeed was their intent – is that the Indiana legislature would have to itself pass anti-discrimination laws giving a private right of action for LGBT people (ordinance violations are a different question since they don’t give a private right of action), and could presumably include a religious exemption from such laws at that point in time.

        Does the RFRA law, as applied to private companies and individuals, bring potentially infringe on other’s right to petition?

        Not even remotely. RFRA doesn’t prohibit suits, nor does it even provide immunity from suits in any way, shape, or form (and immunity statutes have just about always been upheld to my knowledge in any event, often to my chagrin – my opinions on qualified immunity for government officials are pretty strong, for instance). Instead, it just provides a defense to suit or enforcement by a government agent, which defense has to be proven with evidence on a case-by-case basis. No one is deprived of their “day in court,” and the absolute earliest a party asserting it could prevail “on the merits” in almost all instances would be at the summary judgment stage (the exception would be where the other side concedes various facts at the outset). Functionally, it works the same as any other affirmative defense recognized by law, and there are no shortage of those.

        You can’t just say “RFRA” and get a case or enforcement action against you dismissed.Report

      • Avatar Stillwater in reply to Mark Thompson
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        You can’t just say “RFRA” and get a case or enforcement action against you dismissed.

        No, but it seems pretty obvious that the purpose of the state law is to challenge existing local protections against discriminating against gays as well as challenge the current legal definition of “discrimination” to exclude Christian folk refusing to engage in commerce with another individual solely based on that person’s sexual orientation doesn’t constitute “discrimination”. I mean, that last part seems entirely obvious to me: conservatives are trying to redefine the legal meaning of the word “discrimination” in such a way that positively expressing a religious belief fails (necessarily!) to meet the otherwise applicable criteria.

        As to the other part of your comment regarding the role precedent plays in neutering the Indiana legislation and rendering it merely symbolic I’d say I take a rather different view of it. The legislation was not symbolic in any way I can see since it actively permits (as written) discrimination of individuals based on religious beliefs. When you couple that bare fact with the intent of the legislation – to generate court cases which will effectively redefine (or so’s the hope) the boundary where free exercise confronts (otherwise) prohibited discrimination – I think the intent is quite clear. Especially given the mojo-boost from Hobby Lobby. In my view, it clearly ain’t symbolic.Report

      • Avatar Stillwater in reply to Mark Thompson
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        Wow, that first sentence is a mess. Not sure it can be saved. At a minimum take off the last three words …Report

      • Avatar Mark Thompson in reply to Mark Thompson
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        @stillwater

        The legislation was not symbolic in any way I can see since it actively permits (as written) discrimination of individuals based on religious beliefs.

        You’re very wrong about this. I don’t know the extent to which you’ve read my various comments on this topic in this and other threads, but:
        (1) the differences in wording between this and the federal RFRA are limited to two items that have no relevance to what does and does not satisfy the test of what is and is not behavior worthy of an exemption from a law. For one of the two differences in wording, many federal courts interpret the federal RFRA in a way consistent with the wording in Indiana, while for the other difference, all federal courts interpret it in that way.
        (2) The federal RFRA, and similarly worded state RFRAs, has never been used successfully to defend against a discrimination claim except for cases where the “ministerial exception” applies (which is a matter of federal Constitutional law, rendering RFRA functionally irrelevant).

        Yes, many/most of the GOP Indiana legislators wanted it to legalize discrimination (even though for the most part, it’s already legal in Indiana against LGBT people – which, again, is by far the bigger problem) or ensure that it remained legal to discriminate against LGBT people. But just because that was their hope doesn’t mean that the words succeeded in implementing that hope, particularly given the body of case law on this topic (with which few state legislators would have been familiar, I assure you). From the cases I’ve read, it’s pretty clear that: (1) the government has a compelling interest in enforcing anti-discrimination laws in all cases; and (2) the only situation in which that enforcement fails the “least restrictive means” test is where the aforementioned “ministerial exception” applies, which is both identical to the Constitution-based “ministerial exception” and which applies only when we’re talking about questions of internal church doctrine involving clergy members.

        I don’t see how you can say that the legislation is an attempt to redefine discrimination, either – neither the word discrimination nor anything remotely similar to it is used in the legislation. At most, it’s an attempt to create a defense to claims of discrimination in state court matters – which, again, I think is a failed attempt.Report

      • Avatar Stillwater in reply to Mark Thompson
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        Mark,

        We disagree about about the first topic (I mean, you effectively concede my point that the intended purpose of the bill is to challenge the boundaries where existing conventional and legal conceptions of what constitutes “discrimination” bump into free exercise, you just disagree that *that intent* will be realized – tho, of course, in the short term it certainly could…).

        Re: the second, the term “discrimination” doesn’t have to appear in the statutory language for that to be the purpose of the bill, especially given that the conservative mantra regarding this and similar laws is that treating gays differently than other folk outa sincere religious belief isn’t a form of discrimination. As I wrote upthread, it just strikes me as obvious that the purpose of the bill is to try to create conditions under which the contemporary conventional as well as legal conception of discrimination doesn’t apply: when that otherwise discriminatory action is motivated by religious belief. So they’re not directly trying to redifine the word discrimination. THey’re trying to establish that free exercise requires legal protections which would thereby functionally change what the word “discrimination” currently means.Report

  6. Avatar DRS
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    Here’s a couple of interesting opponents of the Indiana and the Arkansas legislation:

    First up: Walmart. https://twitter.com/WalmartNewsroom/status/583032659787448320 Which condemns the Arkansas bill as being opposed to the state’s “spirit of inclusion” and asking the governor to veto the bill.

    Second: NASCAR http://www.thestar.com/sports/basketball/2015/03/31/sports-reaction-to-indiana-law-a-victory-arthur.html From halfway down the page: “But even NASCAR, the reddest of red state sports, born deep in the moonshine backwoods, weighed in. Its statement didn’t equivocate.

    “NASCAR is disappointed by the recent legislation passed in Indiana. We will not embrace nor participate in exclusion or intolerance. We are committed to diversity and inclusion within our sport and therefore will continue to welcome all competitors and fans at our events in the state of Indiana and anywhere else we race.”

    When you have lost NASCAR, Governor, you have lost the nation. It would be a stretch to say that the opposition to an unjust law was led by sports, even in a You Can Play world. Sometimes, you’re just a thermometer.”

    The RF crowd is not the cresting wave of a mighty tsunami. It’s the pathetic ripple in a small pool fluttered by a breeze. It will have the money to persevere because there seems to be no lack of money for extremist views, but it’s really the beginning of the end.Report

  7. Avatar DRS
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    I’m in moderation because I have a couple of links. Please help.Report

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