This past Thursday, the legislature passed, and Indiana’s Republican Governor Pence signed into law, what it calls a Religious Freedoms Restoration Act (RFRA). The Indiana version contains several notable changes from the model one that ultra-conservative Republicans have been pushing in statehouses around the nation. [For its part, Colorado killed the version introduced there.]
The Indiana version grants parties the right to bring legal action to prevent a “likely” burden on religious belief, even before any burden is imposed. And it expands the situations in which the protection could be invoked to include disputes between private parties engaged in lawsuits, even if they do not involve any direct actions by a government agency. These are extremely weighty modifications, and turn what was a shield into a sword.
Arkansas has a version pending on its Governor’s desk. Ugh.
Let’s start with the basics: these laws are entirely unneeded. The first amendment allows any business to claim a religious purpose for any given act. But current law fixes the burden of proof on the person claiming the first amendment right (generally speaking). It should take a very muscular, particularized and precise argument to make a first amendment claim in a way that would allow a business open to the public. . . to refuse service to any person, based on status rather than conduct.
Indiana’s version of the RFRA (and the one pending in Arkansas) both purport to SHIFT that burden — make the burden belong to the state (or the complaining person, the one refused service), to prove that ALL laws — not just ones on service — are the least restrictive means of achieving a compelling state interest. So, the Indiana law gives the business a clear advantage in any lawsuit based on a refusal to serve any person (based on status). It shifts the burden, and presumes that the business was exercising a religious view. Even if the business were so exercising — the federal fourteenth amendment can be read to say that if one holds oneself open for commerce with the public, and uses jurisdictional means (advertising, telephone, computers connected to the web, etc.), then denial of service based on status is going to be a highly suspect and likely invidious state of affairs. In short, quite rightly, most times the person(s) refused service will prevail, if they can afford to press the matter in court. [So, a decade from now, the Supremes will likely strike the Indiana version of the RFRA as repugnant to our federal Constitution. But we should not have to wait that long for justice and equality, in my view.] Let’s follow along here, then. . .
Now imagine the same facts under the Indiana RFRA — and the person(s) denied service likely loses, because all the business need say is that it had a religious objection, and posted a sign to warn the public — and that would be enough, to escape a lawsuit, intact. I frankly would not to live in such a state. I will not spend my money in that state, either. I agree with Tim Cook, of Apple.
Here in Illinois, and in Colorado, California, Nevada, New Mexico, much of the Northwest, and almost all of the Northeast (map here) there are state-wide bans on such discrimination. Not so, in Indiana, Tennessee and Arkansas (among others — they are in gray, on that ACLU map). Disgusting.
Even so, the fact that Indiana doesn’t have a state-wide ban on discrimination against LBGT people, may only lead to MORE litigation proliferation there, as the federal constitution can likely be read to imply a right to equal treatment, where and when the basis for purported discrimination is driven by status, not conduct.
I am deeply frustrated that Governor Pence is pretending not to understand how important shifting the burden of proof here is. So — this blog and business and site — like Merck itself – is open for everyone! [Feel free to download, and use the lower right image to join the campaign on your site.]
UPDATED: 03.30.15 @ 11:15 AM EDT | Despite repeatedly dodging direct questions on these matters on Sunday morning national TV news programs yesterday, Governor Pence is now “open” to amendments and clarifications being drafted by the two top legislators in the Hoosier state.
With the travel and trade of the NCAA Final Four hanging in the balance over the coming weekend there, as well as pressure from the NBA, Apple and Angie’s List — he ought to rethink that earlier bone-headed stance. In any state where a state-wide prohibition on discrimination based on sexual orientation and gender identity does not yet exist, a bill like the RFRA would create significant havoc. Just like the Boycott Arizona move of a few years back — on “show us your papers” — I think the threat of loss of commerce is the best way to end this nonsense. Onward.