« Catch-up: What did you miss over the weekend from the ILB? | Main | Ind. Decisions "Court of Appeals rules for Long Beach homeowners" [Updated] »

Monday, March 30, 2015

Ind. Gov't. - Some weekend reactions to, and stories on, the RFRA controversy

A statement from Indiana University President Michael A. McRobbie this weekend begins:

"The recent passage of the Indiana Religious Freedom Restoration Act has brought significant negative attention to the state of Indiana throughout the nation and indeed the world, because the law is widely viewed as signaling an unwelcoming and discriminatory atmosphere in our state.

"While Indiana University hopes that the controversy of the past few days will move the state government to reconsider this unnecessary legislation, the damage already done to Indiana’s reputation is such that all public officials and public institutions in our state need to reaffirm our absolute commitment to the Hoosier values of fair treatment and non-discrimination.

An editorial from The Charlotte Observer this weekend, headlined " Indiana shows what not do do: N.C. also eyeing so-called religious freedom bill," concluded:
The fallout in Indiana was immediate. Salesforce, a $4 billion company, said it would “dramatically reduce our investments in Indiana.” The NCAA, which is holding the Final Four in Indianapolis next weekend, suggested it would reconsider holding future events there. The state’s largest convention – Gen Con – said it would consider moving. The Disciples of Christ may move its 2017 convention. And Yelp’s CEO said the company would not expand in states with such laws.

That’s progress of a sort. Nineteen states passed similar bills over the past 20 years with little fanfare. The outrage we’re seeing in Indiana shows the new awareness of LGBT equality.

Does North Carolina really want to go down this road? Do we want to sanction discrimination by letting anyone deny service to whomever they please? Do we want to jeopardize conventions, job growth and the ability to recruit?

Arizona was going to last year, but under pressure from the NFL and others, Gov. Jan Brewer vetoed the bill. If it reaches his desk, Gov. Pat McCrory should do the same here.

Katie Sanders of PolitFact,in a long, good column Sunday headed "Did Barack Obama vote for Religious Freedom Restoration Act with 'very same' wording as Indiana's?" concluded:
Pence played defense Sunday, saying, that sexual orientation "doesn’t have anything to do with" the Religious Freedom Restoration Act," adding that "then state-Sen Barack Obama voted for (the Religious Freedom Restoration Act) when he was in the state Senate of Illinois. The very same language." A spokeswoman for Pence did not respond.

The vote is clear enough, as is the name of the bill, but Pence’s explanation is an oversimplification of the purpose of the law then and the motivation of some pushing the law now.

Proponents of this law are pushing the measure as a way that businesses can seek protection "for refusing to participate in a homosexual marriage." Whether that argument will win in the courts is up for debate. That was far from an intent of Illinois’ law, or the others passed more than 15 years ago.

As for the language itself, Pence is incorrect to say the language is the same. Some pro-LGBT rights groups say the outright inclusion of a corporation or company as a "person" is overly broad, though the true impact will likely only really be settled when matters are sent to a court.

Overall, Pence’s claim is partially accurate but misses important context. We rate it Half True.

Judd Legum of ThinkProgress writes today:
The Indiana law differs substantially from the federal Religious Freedom Restoration Act, signed by President Clinton in 1993, and all other state RFRAs.

There are several important differences in the Indiana bill but the most striking is Section 9. Under that section, a “person” (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose “exercise of religion has been substantially burdened, or is likely to be substantially burdened” can use the law as “a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding.”

Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens. This means it could be used as a cudgel by corporations to justify discrimination against individuals that might otherwise be protected under law. Indiana trial lawyer Matt Anderson, discussing this difference, writes that the Indiana law is “more broadly written than its federal and state predecessors” and opens up “the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate…”

This is not a trivial distinction. Arizona enacted an RFRA that applied to actions involving the government in 2012. When the state legislature tried to expand it to purely private disputes in 2014, nationwide protests erupted and Jan Brewer, Arizona’s Republican governor, vetoed the measure.

Thirty law professors who are experts in religious freedom wrote in February that the Indiana law does not “mirror the language of the federal RFRA” and “will… create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.”

Various federal courts have differing interpretations of the scope of the federal RFRA. The Indiana law explicitly resolves all those disputes in one direction — and then goes even further.

This is evident in Section 5 of the Indiana law which provides protections to religious practices “whether or not compelled by, or central to, a system of religious belief.” So entities can seek to justify discriminatory practices based on religious practices that are fringe to their belief system.

Beyond the differences between the Indiana law and other states, many of the other states that have a RFRA also have a law that prohibits discrimination based on sexual orientation. Indiana does not have one. * * *

Claiming that the Indiana law is just like the laws in 19 other states, however, is simply not true. Other states are following Indiana’s lead and broadening the language of the law.

Why the change? Beyond the substance, the politics of the RFRA has become much different. When the federal law was signed in 1993, it was thought “to be about benign and relatively uncontroversial matters, such as allowing Muslim jail inmates to wear closely trimmed beards, or assuring that churches could feed homeless people in public parks.” Today, Indiana’s law is driven “by the politics of anti-gay backlash. Their most ardent supporters come from an increasingly angry, marginalized, and shrill subset of Christian conservative activists.”

Dave Bangert's column today in the Lafayette Journal & Courier concludes:
Should those other 19 states be subjected to boycotts, too? Take that up with the convention bureaus and Chambers of Commerce in St. Louis or Chicago or Orlando.

Right now, the "Yeah, but, what about them?" defense isn't going to deflect attention from next weekend, when Easter and the NCAA Final Four alternate days in Indianapolis. And, yes, the NCAA has joined the line in questioning Indiana's intent.

This one belongs to you and yours, Gov. Pence.

It didn't have to be this way. There were plenty of red flags before Senate Bill 101 cleared the General Assembly by wide margins — and not just from people who, as state Sen. Brandt Hershman, R-Buck Creek, put it in social media posts over the weekend, have agendas.

Among the loudest of those warnings, the Indiana Chamber of Commerce outlined how perceptions of the measure would be taken in the business and convention community, in and out of the state.

These were smart people. These weren't people chanting their agendas in the Statehouse rotunda. These were traditional allies of the GOP supermajority in the House and Senate. These were people who would have taken the governor's phone call and explained calmly what they saw coming. And it wouldn't have just been about which bakers wouldn't decorate which cupcakes for which wedding.

Maybe they were all misinformed, as the governor says.

But as Statehouse Republicans are finding out, the standard for a nationwide indictment of Indiana isn't that high, even if charges of institutional discrimination would never produce a conviction stemming from Senate Bill 101.

So now, Pence is open to clarification.

The General Assembly tried the clarification route early in 2014, too, when House Republicans tried to head off mounting criticism about House Joint Resolution 3, the proposed constitutional ban on same-sex marriage and similar unions. The bill — inexplicably intended to supplement a constitutional amendment question on a statewide ballot — accomplished only one thing: The more you have to explain that something isn't discriminatory, the shakier its premise.

That's shaping up to be the case with Indiana's version of the Religious Freedom Restoration Act this year. The only difference then was that discussion came before the governor's signature.

Pence says he has no desire to add sexual orientation as a protected class in the state's civil liberties laws. "That's not on my agenda," Pence said Sunday on ABC. So what sort of clarification does he have in mind that won't send Indiana spinning even worse? That's a good question.

Pence and Statehouse Republicans should have seen this coming. They didn't. And the state is paying for it.

So now, what confidence is there that the governor can do damage control, instead of just more damage?

Posted by Marcia Oddi on March 30, 2015 08:37 AM
Posted to Indiana Government