Sunday, March 29, 2015

Burn Baby Burn: Pence "scorched" by the RFRA firestorm, as we provide legal opinions.

And the best Silent Ron Grooms belatedly can manage is, "But all the other fascists states do it, too."

Verily, the state of Indiana's Holiday Inn Express hotels have been inundated with overnighters since Governor Mike Pence signed SB/HB 101 earlier this week and established the reign of error known as the Religious Freedom Restoration Act. Before moving to a few legal opinions, let's look back on the past week's unpleasantness in our one-party Hoosier paradise:

March 24: Religious freedom: How about freedom from embarrassment?, by David Hoppe (NUVO)

KRAVITZ BLOG: Religious freedom bill may hurt Indy's sports, convention business, by Bob Kravitz (WTHR)

March 25: Tully: Statehouse Republicans embarrass Indiana. Again, by Matthew Tully (Indy Star)

March 27: Local religious leaders, others fire back at Religious Freedom act’s passage, by Jerod Clapp (News and Tribune)

March 28: Seattle, San Francisco mayors join in boycott of Indiana over RFRA, by Madeline Buckley (Indy Star)

And George Takei, and Keith Olbermann, and dozens of other humiliations, great and small. Even Pence's own feelings now have been hurt, along with his presidential prospects, and so damage control is operating full tilt:

Gov. Mike Pence to push for clarification of ‘religious freedom’ law, by Tim Swarens (Indy Star)

Gov. Mike Pence, scorched by a fast-spreading political firestorm, told The Star on Saturday that he will support the introduction of legislation to “clarify” that Indiana’s controversial Religious Freedom Restoration Act does not promote discrimination against gays and lesbians.

Pence breaks into karaoke: "There must be some misunderstanding ... There must be some kind of mistake." The band is Genesis, which seems fitting. 

Following are three explications of RFRA from the legal community. The authors may or may not have stayed in a Holiday In Express, or even someone's airbnb spare bedroom, but at least they're trained, rested and ready.

Opinion: Democracy key in fighting Indiana and Kentucky ‘religious freedom’ laws, by Joe Dunman (Insider Louisville)

So how can opponents of discrimination defeat “religious freedom” laws? There is no easy answer, unfortunately. Laws like RFRA already have been upheld as generally constitutional. They codify a right already present in the First Amendment and don’t single out any classifications of people in their text or application. And limiting the classifications protected by civil rights laws is generally within the discretion of a legislature to do, since civil rights laws themselves are products of the legislative branch.

The Indiana and Kentucky civil rights acts currently omit sexual orientation from protection and there’s no constitutional compulsion to change that. Adding protected classifications is subject to the whim of the voters and those they elect to represent them.

Democracy is the key. Unlike discriminatory marriage bans, “religious freedom” laws like those in Indiana and Kentucky are best defeated at the ballot box. For this reason and many others, state elections matter. Individuals, businesses, and lobbying groups must pressure legislators not to pass and governors not to sign such laws, and vote them out of office when they do.


The Indiana Religious Freedom Restoration Act – An Analysis of Its Controversy, by Matt Anderson (IN Advance)

Perhaps the most frustrating aspect of this law to its opponents is that it comes right after Indiana’s very public and very unsuccesful bid to ban gay marriage. Our own attorney general went state to state submitting amicus briefs in support of laws that would prevent state-sanctioned gay marriage. The state’s arguments at the 7th Circuit were nearly laughed out of the courtroom and were called out for what they were: discrimination based on personal views. The proponents of the IRFRA seem to gloss over this aspect even though the proponents of this bill were the same who had tried to ban gay marriage through Indiana’s Constitution. The exasperation could probably summed up as: “Look, if you hate the LGBT community, so be it . . . but don’t act like this law has nothing to do with it.”


Letter from the legal scholars

We write you as legal scholars with expertise in matters of religious freedom, civil rights, and the interaction between those fields, to offer our expert opinion on the scope and meaning of the proposed Religious Freedom Restoration Acts pending before both houses of the Indiana legislature. The thirty signatories to this letter, many who are Indiana University law professors, agree with the Indiana Supreme Court “that the Indiana Constitution’s religious liberty clauses did not intend to afford only narrow protection for a person’s internal thoughts and private practices of religion and conscience.” We share the view that a commitment to religious liberty is fundamental to a uniquely American notion of pluralism whereby religiously motivated practices should be accommodated in contexts where such accommodation would not result in meaningful harm to the rights of identifiable third parties.

That said, we have several concerns with the language of the proposed Religious Freedom Restoration Acts (RFRA).

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