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Thursday, March 19, 2015

Ind. Gov't. - RFRA: "The lawyers will all get some really sweet lake homes out of this" writes one columnist

This morning the local news is Tom Davies' AP story headed "Opponents of Indiana religious objections bill say it could threaten rules on church day cares." Some quotes:

Some Indiana lawmakers are questioning whether safety regulations approved last year for church and home day cares could be threatened if a proposal to extend greater protections for religious objections becomes state law.

Supporters of the Republican-backed measure say they don't believe those day care standards are at risk, although courts could ultimately decide whether they violate religious liberties.

Democratic Rep. Vanessa Summers of Indianapolis said social conservatives who long fought those regulations will cite religious freedoms in trying to have them overturned.

"I do believe this is just another way for them to get around protecting children in day cares," said Summers, who was an advocate over several years of setting standards for church and home child care operations.

The law approved by legislators last year requires day cares that receive taxpayer money meet safety and nutritional standards and follow limits on the number of children each caretaker can oversee at one time.

The religious objections bill could be voted on by the House next week after it cleared the Senate on a party-line vote last month.

Dave Bangert, in his Lafayette Journal Courier column yesterday, headed "Religious freedom bill winners? Lawyers," began with:
What was the upshot of Monday's House committee hearing on Indiana's proposed religious freedom bill?

The lawyers will all get some really sweet lake homes out of this.

Cut through the competing rallies at the Statehouse. Cut through the complaints about a living Constitution and a living Bible and how each threatens some fundamentalist core. And cut through the sermons about matters of conscience versus invitations for discrimination — take your pick — by way of four hours of testimony before a House Judiciary Committee sent Senate Bill 101 to the full House on a 9-4, party-line vote.

Here's a fact: For a crowd that simply hates judges to decide law, the folks sending an Indiana version of the Religious Freedom Restoration Act closer to a final vote are doing a great job of pushing matters that direction.

The 7th Circuit had an important RFRA decision March 9th in the case of Official Committee of Unsecure v. Jerome Listecki. Giving a good idea of the complexity of this area, see this lengthy analysis of the case by Prof. Marci A. Hamilton, described as one of the leading church/state scholars in the United States, in a column March 19th in Justia's Verdict, headed "The Seventh Circuit Injects Common Sense into Religious Liberty Debates with Official Committee of Unsecured Creditors v. Listecki," that begins:
There are times when I despair that the United States will never return to the common sense religious liberty principles established by the Framers and respected by the Supreme Court in its long line of First Amendment, free exercise decisions. From Reynolds v. United States through Employment Div. v. Smith and Church of Lukumi Babalu Aye v. Hialeah, the Court has held the line on extreme demands for religious liberty rights. They—the Framers and the Court—have been responsible for creating a system of ordered liberty where believers are full-fledged members of the community, accountable to the laws that apply to everyone else, while having the ability to request legislative exemptions, which have been granted hundreds of times. It’s a system that has worked for centuries (including for the Native American Church members who lost in Smith).

Congress let loose the furies when it caved to demands for extreme rights with the Religious Freedom Restoration Act (“RFRA”) and its unfortunate “least restrictive means” test, which persuades believers (and courts) that the laws that apply to everyone else should be shaped specifically to a believer’s particular beliefs. This reasoning has opened a new and scary dialogue about carving back the public accommodations laws to permit believers to refuse service to those they disapprove, e.g., Arizona’s state RFRA, which was vetoed last year, and this year’s pending Indiana RFRA. The public rhetoric has been about the LGBTQ community and same-sex marriage, which is bad enough, but the principle equally applies to discrimination based on race, gender, and national origin. Such reasoning is poisoning the United States and threatening the Court’s careful and delicate balance between extraordinary religious diversity, the rule of law, and plain old common sense.

With these thoughts in mind, last week’s unanimous opinion by the United States Court of Appeals for the Seventh Circuit involving the Milwaukee Archdiocese bankruptcy is a much-needed breath of fresh air.

Posted by Marcia Oddi on March 19, 2015 09:02 AM
Posted to Indiana Government