Indiana's governor signs bill allowing businesses to reject gay customers

[Sam]

Unless someone comes in and announces they are homosexual, how can the business owner really know? I just don't see that happening, or the shop owner being able to justify it.

ThinkProgress reported an anonymous restaurant owner claimed to have refused service to at least one gay individual in a follow-up to Indiana's RFRA. I don't put any real stock in anonymous reports from sites like TP but it's pretty obvious that while not all gay people stand out as such, some certainly can in a given instance (e.g., boyfriends or girlfriends sitting down for a couples' dinner, a man coming into the store to pick out roses for his boyfriend).

Regardless, you're talking about a problem with discernment. The RFRA would allow a discerning florist to refuse to sell a flower to someone on the basis of their sexual orientation just as easily as it would allow her to refuse to sell and arrange flowers for a same-sex wedding.

[Bill the Cat]

ThinkProgress reported an anonymous restaurant owner claimed to have refused service to at least one gay individual in a follow-up to Indiana's RFRA. I don't put any real stock in anonymous reports from sites like TP but it's pretty obvious that while not all gay people stand out as such, some certainly can in a given instance (e.g., boyfriends or girlfriends sitting down for a couples' dinner, a man coming into the store to pick out roses for his boyfriend).

But how can someone coming in to eat or someone picking out roses violate a religious belief? I can see how a florist wouldn't want to go to a homosexual wedding and set up the flowers, but I can't see not selling flowers to a customer.

Regardless, you're talking about a problem with discernment. The RFRA would allow a discerning florist to refuse to sell a flower to someone on the basis of their sexual orientation just as easily as it would allow her to refuse to sell and arrange flowers for a same-sex wedding.

I disagree. There is a difference between selling flowers and arranging them at a venue.

[Darth Executor]

ThinkProgress reported an anonymous restaurant owner claimed to have refused service to at least one gay individual in a follow-up to Indiana's RFRA. I don't put any real stock in anonymous reports from sites like TP but it's pretty obvious that while not all gay people stand out as such, some certainly can in a given instance (e.g., boyfriends or girlfriends sitting down for a couples' dinner, a man coming into the store to pick out roses for his boyfriend).

Regardless, you're talking about a problem with discernment. The RFRA would allow a discerning florist to refuse to sell a flower to someone on the basis of their sexual orientation just as easily as it would allow her to refuse to sell and arrange flowers for a same-sex wedding.

I don't see the problem. You people are the ones who decided you needed the law to compel others to attend gay weddings, or host them in your living room. The only surprise is that your attempt at re-instituting de facto slavery has had so little backlash.

[Bill the Cat]

Washington (CNN)—Indiana Gov. Mike Pence says concerns that his state's new "religious freedom" law will allow businesses to turn away LGBT customers is the result of a "tremendous amount of misinformation and misunderstanding."

But he refused Sunday to answer at least six yes-or-no questions about whether the measure legalizes discrimination against gays and lesbians.

And he said he won't support legislation that would clean up the public relations mess by adding protections based on sexual orientation to Indiana's anti-discrimination laws.

"That's not on my agenda, and that's not been an objective of the people of the state of Indiana. And it doesn't have anything to do with this law," Pence said in an appearance on ABC's "This Week."

"We are not going to change this law," he said.

[Sam]

But how can someone coming in to eat or someone picking out roses violate a religious belief? I can see how a florist wouldn't want to go to a homosexual wedding and set up the flowers, but I can't see not selling flowers to a customer.

I disagree. There is a difference between selling flowers and arranging them at a venue.

Doesn't matter, as Hobby Lobby demonstrated. I can't see how someone could sincerely believe that the contraceptives HL opposed are actually abortifacients when confronted with the evidence. Yet the Greens did and Kennedy made it clear that a sincere religious belief doesn't have to be accurate or even particularly sensible. So even if you see a difference, someone else might not.

There certainly can be people out there who don't want to "participate" in a same-sex relationship by cooking a couples' dinner or selling a flower arrangement for someone's same-sex sweetie. And that participation is not categorically different than selling flower arrangements for a same-sex wedding or catering a same-sex reception.

That's the problem with this novel interpretation of the RFRA: it creates a minefield of conflicts that judiciaries are ill-suited (and ill-funded) to deal with. And the whole point of a minefield is that you don't know just where the next one is.

[RumTumTugger]

One wonders why Starlight ignored Joels simple question. Is it because his answer will show he is a bigoted Christianphobe and is afraid people will find out?

I see nothing in the text of the law that references gay people or being nasty to them. It seems to only reaffirm (weakly) the Free Exercise clause of the 1st Amendment. What error do you see in it?

You need to answer Joels question Starlight before you make another unfounded assertion about American laws proving you are a bigoted Christianphobe.

[Starlight]

One wonders why Starlight ignored Joels simple question.

Because it was a silly question and has been amply answered elsewhere in this thread. But to summarize...

Joel: It seems to only reaffirm (weakly) the Free Exercise clause of the 1st Amendment. What error do you see in it?

If the law does nothing that the US Constitution, federal RFRA, Indiana Constitution etc don't already do, then passing this law is totally unnecessary and a waste of time and paper. Obviously the people supporting this law believe it does something that those other laws don't do.

Indeed, according to legal experts who have compared and contrasted them, the apparent difference between this Indiana law and those other laws and constitutions is that existing laws apply to interactions between the State and individuals/businesses, whereas this law applies to interactions between individuals/businesses and other individuals/businesses. So they are different. The upshot of it is that: This Indiana law seems to allow businesses to discriminate against gay people on religious grounds in a way in which the Federal and Constitutional statutes do not. Indiana governor Mike Pence appears to be well aware of this - hence him avoiding answering a direct yes/no question six times in a row in a single interview on the subject of whether he thinks this law legalizes anti-gay discrimination.

Also, as a general rule, even when they are not anti-gay, I don't particularly support strong religious exemptions from laws:
* Why should religious people get an exemption from morality? They shouldn't get to opt out from following laws just because they don't want to. We don't let religious people keep slaves, regardless of how strongly they might think their religion tells them it is okay. Historically, a lot of Christians who owned black slaves were absolutely convinced that Genesis 9:25 ("Cursed be Canaan! The lowest of slaves will he be to his brothers.") and other biblical passages gave absolute God-given religious justification for slavery. You might disagree with their interpretation of the bible, but they were convinced - it was a sincerely held religious belief on their part. Which brings us to:
* Some people believe really, really, strange things. As has been mentioned, the Hobby Lobby ruling made clear that beliefs don't need to be well-evidenced or correct in order to be protected by these sort of religious-protection laws. People can believe things that are provably false and therefore might have any weird belief and might want to do any strange thing that we can't even imagine right now. Allowing for generic religious exemptions to laws opens the door to craziness.

[Sam]

Indeed, according to legal experts who have compared and contrasted them, the apparent difference between this Indiana law and those other laws and constitutions is that existing laws apply to interactions between the State and individuals/businesses, whereas this law applies to interactions between individuals/businesses and other individuals/businesses.

And that's what helped cause a ruckus with the Arizona bill, if I remember right. Same clause:

Source: IN SB101

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.

© Copyright Original Source

Bolding added.

The federal RFRA's clause, in contrast:

Source: U.S. Code � 2000bb–1 - Free exercise of religion protected

(c) Judicial relief

A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

© Copyright Original Source

And Arizona's RFRA's clause, prior to the proposed amendment in 2013:

Source: Ariz. Rev. Stat. � 41-1493. Arizona Religious Freedom Amendment

D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.

© Copyright Original Source

And you have to love the thumb in the eye at the end of Indiana's RFRA:

Source: IN SB101

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.

© Copyright Original Source

... Meaning that Indiana is looking to protect the religious freedom of business owners but if one of those employers steps on the religious beliefs of an employee, well that person is just plain out of luck. Classic Indiana.

[Starlight]

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.

... Meaning that Indiana is looking to protect the religious freedom of business owners but if one of those employers steps on the religious beliefs of an employee, well that person is just plain out of luck. Classic Indiana.

It's worth bearing firmly in mind that in the vast majority of cases, the employees greatly outnumber the employer. So every time anyone puts an employer's religious beliefs ahead of their employees they are harming far more people than they're helping, and are essentially decreasing the net total of religious freedom not increasing it.

I think a lot of people behind these sorts of employment laws truly believe that the working class doesn't deserve rights, or at least not in the same way that business entrepreneurs do. There is a certain popular narrative expounded by some on the Right in the US that the rich are "job creators" who are implicitly (or explicitly) morally superior to everyone else (especially the 'undeserving' poor) and whos views and choices should be put ahead of others, which I find very distasteful.

[Darth Executor]

If the law does nothing that the US Constitution, federal RFRA, Indiana Constitution etc don't already do, then passing this law is totally unnecessary and a waste of time and paper.

Not true. The constitution could protect something and judges could illegally give undue weight to anti-discrimination legislation instead. Ideally such judges would be promptly executed but in the real world you sometimes need legislation to supersede said illegal legislation and provide the judge with less of a fig leaf they can use to make corrupt decisions.

[Darth Executor]

... Meaning that Indiana is looking to protect the religious freedom of business owners but if one of those employers steps on the religious beliefs of an employee, well that person is just plain out of luck.

What's the problem here? The point of the law was to allow people to reject contracts they don't want to take. Employees can already do that by refusing to work for someone who offends their religious sensibilities. Letting employees sue would do the exact opposite of what the law intends and just allow one more type malcontent to sue because someone dared offend them on their own property.

[Bill the Cat]

Doesn't matter, as Hobby Lobby demonstrated.

Hobby Lobby had nothing to do with customers of a business, only employee benefits.

I can't see how someone could sincerely believe that the contraceptives HL opposed are actually abortifacients when confronted with the evidence.

The copper IUD absolutely does. Mirena may or may not, same with Ella, as they thin the uterine wall, which makes implantation far more difficult. Plan B doesn't prevent implantation . So 25% do, 50% possibly, and 25% don't.

Yet the Greens did and Kennedy made it clear that a sincere religious belief doesn't have to be accurate or even particularly sensible. So even if you see a difference, someone else might not.

Could you cite Kennedy's words to that effect please?

There certainly can be people out there who don't want to "participate" in a same-sex relationship by cooking a couples' dinner or selling a flower arrangement for someone's same-sex sweetie.

Again, they could not hold up any objection to any level of scrutiny of people coming into their place of business to purchase a good or service that required no further effort on their part than to exchange the good or service in said place of business.

And that participation is not categorically different than selling flower arrangements for a same-sex wedding or catering a same-sex reception.

Actually, it is.

That's the problem with this novel interpretation of the RFRA: it creates a minefield of conflicts that judiciaries are ill-suited (and ill-funded) to deal with. And the whole point of a minefield is that you don't know just where the next one is.

Every law has novel interpretations. Lawyers have made fortunes on loopholes. There is no stopping that.

[Sam]

Hobby Lobby had nothing to do with customers of a business, only employee benefits.

Hobby Lobby deals with the RFRA and "sincere religious belief," meaning that it's the almost perfect stand-in for this law. The distinction between customers and employees is immaterial (except in the fact that Indiana's RFRA excludes employees from protection!)

The copper IUD absolutely does. Mirena may or may not, same with Ella, as they thin the uterine wall, which makes implantation far more difficult. Plan B doesn't prevent implantation . So 25% do, 50% possibly, and 25% don't.

Source: IUDs are contraceptives, not abortifacients: a comment on research and belief. Stud Fam Plann. 1989 Nov-Dec;20(6 Pt 1):355-9.

No studies show that IUDs destroy developing embryos at rates higher than those found in women who are not using contraceptives. Studies of early pregnancy factors have not shown statistically significant differences in transient levels of hCG between IUD and control groups, a sign of early abortion. The small, careful study by Segal et al. (1985) found no transient rise of hCG in the IUD group. The highly sensitive assay in a larger sample of IUD users, by Wilcox et al. (1985), suggests that an upper limit of only 3 or 4 percent of ovulatory matings with an IUD in situ might show transient rises of hCG. The electron microscopy of Hurst et al. (1980) demonstrated the existence of leukocyte-ridden degenerating embryos in rhesus monkeys fitted with IUDs, but found the same percentage of degenerating embryos in the control group. In this respect, IUDs do no more than nature.

© Copyright Original Source

Could you cite Kennedy's words to that effect please?

It was Alito; my apologies.

Source: Burwell v. Hobby Lobby. Majority Opinion. Alito

Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to determine” whether the line drawn reflects “an honest conviction,” id., at 716, and there is no dispute that it does.

© Copyright Original Source

Again, they could not hold up any objection to any level of scrutiny of people coming into their place of business to purchase a good or service that required no further effort on their part than to exchange the good or service in said place of business.



Actually, it is.

It's not. There is not a categorical difference between offering service here or there. "Requiring no further effort" isn't part of the matrix. The question is whether the person has a "sincere religious belief" that causes an objection to service. And that can be service at one's own business or at some other venue. The owners of Liberty Farm didn't have to go anywhere to host a lesbian wedding. Owners of multi-purpose rooms used for weddings have refused to even rent those rooms out, though doing so requires no more effort than any other rental.

The measure here rests on the religious belief, not the level of exertion.

Every law has novel interpretations. Lawyers have made fortunes on loopholes. There is no stopping that.

There is, however, good law and bad law. Knowingly implementing a bad law is bad. Knowingly interpreting a law such that it will create multitudinous problems is bad. Dissonance regarding the obvious implications of one's interpretation is bad. I am very, very sure that Conservatives would not be so sanguinely fatalistic about the inevitability of bad interpretations were it to be a liberal court's majority opinion on the availability of abortions.

[Mountain Man]

If the law does nothing that the US Constitution, federal RFRA, Indiana Constitution etc don't already do, then passing this law is totally unnecessary and a waste of time and paper. Obviously the people supporting this law believe it does something that those other laws don't do.

The law simply affirms Indiana's explicitly legal authority to enforce the US Constitution in the event that the federal government is unable or unwilling. However, you are right to the extent that a law like this would be redundant if we could trust Washington to do its job, but seeing how we have a lawless president who has been unanamously overruled by the Supreme Court at least a dozen times (and countless more that weren't unanamous), it's a reasonable safeguard for the people of Indiana.

[Sam]

The law simply affirms Indiana's explicitly legal authority to enforce the US Constitution in the event that the federal government is unable or unwilling. However, you are right to the extent that a law like this would be redundant if we could trust Washington to do its job, but seeing how we have a lawless president who has been unanamously overruled by the Supreme Court at least a dozen times (and countless more that weren't unanamous), it's a reasonable safeguard for the people of Indiana.

What?

This makes absolutely no sense, given the text and history of this and other state RFRAs.