Thursday, April 2, 2015
Indiana Religious Freedom Law - Why it's Different
It all started with Peyote. In 1993 Bill Clinton signed the Federal Religious Freedom Act to allow the Indians to use peyote in their religious ceremonies. Of course when the Rasta’s in Florida wanted their religious rights upheld to smoke marijuana in deference to their God, Ja, they were refused; but it all started with the peyote.
By 1998 it was becoming sort of a fashion to champion state laws protecting Religious Freedom; and as usual we now have a patchwork quilt of laws in different states; all of which are keeping the attorney’s very busy. Now, this past week, we have the Indiana law weighing in; supposedly in the name of religious freedom; and at this writing the Governor is demanding clarification of the law’s provisions to ensure his state is “gay friendly.” It’s a shame that the reason he caved in was due to public pressure and not sound law; which the bill was not to begin with. We’ll get to that.
But first, why was this bill received by the public with such an immediate and decisive response? What’s different in this bill that is different from the 1993 Federal law; as well as the 2 dozen other states which have Religious Freedom Acts on the books?
Well, the first thing which struck me when I read it; I actually do that; was that Section 5, which purports to grant rights to Religious groups, actually makes it legal for an OPINION to be a valid reason to deny someone else the right to service.
The law takes great pains to define certain words in the bill; but nowhere does it define the term Religion; leaving the door open for an inability to determine anything in court. Under such vaguely written statute an opinion can be construed as a religion. This would actually make the Rasta’s quite happy, as they ritually; or religiously; smoke weed. It’s not just about wedding cakes. It works both ways, you see.
Additionally, this was the first law of its kind to target individuals as opposed to businesses. Section 11 of the bill actually abrogates your right as an individual to bring suit against an employer; thus making the State both the Legislature and the Judiciary. This is something we don’t do in America. The principles of Separation of Powers; and Conflict of Interests; is the backbone of Democratic Republican form of government.
I love using those two words together. It confuses some people. And it also shows the true divisive nature of our two party system. The very titles of the two parties immediately divide the populace. Democratic Party implies a Populace form of government; where the majority rules. That is not the case here. And the Republican Party smacks of nobility and privilege. Together the two keep us all at odds, and themselves in power.
The most common example in this whole Indiana thing has been the Baker. The Baker has rights. So do his customers. But the law says the Baker can’t discriminate against specific groups of people; in this case Gay and Lesbian couples. But the Bakery itself has rights which are only related to its operation. The Baker may choose to disassociate with Gays in his personal life; but as a Bakery, he is bound by Federal Law to serve all people. It’s very simple.
But here comes yet another Conservative politician; who all agree we have too many laws; passing another useless, and flawed law. So flawed, in fact, that at this writing the Governor of Indiana is demanding the Legislature rewrite the law to make sure it is gay friendly by this Friday. We shall see.
Here is the link to the original 1993 Federal Law;
And here is the full text of Indiana’s “religious freedom” law. See if you can spot the difference and pay attention to Sections 5 and 11.
SENATE ENROLLED ACT No. 101
AN ACT to amend the Indiana Code concerning civil procedure.
Be it enacted by the General Assembly of the State of Indiana:
SECTION1.IC34-13-9 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:
Chapter 9. Religious Freedom Restoration
Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.
Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.
Sec. 3. (a) The following definitions apply throughout this section: (1) "Establishment Clause" refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) "Granting", used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.
Sec. 4. As used in this chapter, "demonstrates"means meets the burdens of going forward with the evidence and of persuasion.
Sec. 5. As used in this chapter, "exercise of religion" includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.
Sec. 6. As used in this chapter, "governmental entity" includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.
Sec. 7. As used in this chapter, "person" includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.
Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person's exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney's fees, to a person that prevails against the governmental entity under this chapter.
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.