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;

http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act   

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.

Clinton, DOMA and Article IV - WTF?

Am I the only one who understands this, or am I just ill-informed? First off, if you don’t know the difference between an Amendment and an Article in the US Constitution, then this post is not for you. If you would like to know, then I’ll tell you.

An Amendment to the Constitution is something which has been added; or changed from the original Articles; which delineate what the government’s functions are, and how they are to go about their jobs. Amendments are; beginning with the first ten in the Bill of Rights; outline the areas of  our lives in which the government is not allowed to intrude. And sometimes; as with the 27th Amendment; they are merely additions or corrections to existing Articles. 

Secondly; Civil Rights Issues; of which Same Sex Marriage is but one; are not negotiable, and therefore not subject to populist elections. It is essential that you understand these two things. Okay, got that straight? Now, some background.

Bill Clinton is the ex-President who is seen as the godfather to the GLBT movement. I hope I have the initials in the proper order so as not to offend anyone. But Bill Clinton; in addition to giving us the ill-advised “Don’t Ask Don’t Tell” policy; also left us with a lasting legacy; and conundrum; in the form of the Defense of Marriage Act.

DOMA; it’s easier to use the acronym; basically stated that marriage in the United States consists of one man and one woman. That alone is confusing to me in that Bill Clinton is embraced by the GLBT community as a champion of their quest for equal rights. But what really puzzles me even more is the clause within DOMA which basically guts Article 4; the Full Faith and Credit Clause; which states that “Full faith and Credit shall be given in each state to the Public Acts, records and Judicial proceedings of every other state….” In essence, this clause prevents the individual states from not honoring your driver’s license, automobile registration, marriage license etc. when traveling through their districts. This was a good thing.

Can you imagine the confusion resulting in having to pay a fee at each state border as you travel across the country? Or having to get a temporary marriage permit while on vacation? Full Faith and Credit is the antithesis of State’s Rights, which brings me to the crux of this post.

Bill Clinton planted the seeds for all the confusion going on in the courts across the country right now in regards to Same Sex Marriage. That’s right; the godfather of alternative lifestyles is at the root of the problem being faced by GLBT people all across the land as they try to navigate the labyrinth of state laws which permit them to marry in some states, while making those unions illegal in others.

Further complicating the matter is that the Supreme Court struck down only that portion of DOMA which restricted Same Sex Marriage. It did not, however, strike down the clause which allowed the individual states to by-pass Article 4 of the Constitution. This is why you have lawsuit after lawsuit concerning Same Sex Marriage in one state after another. If the  entire DOMA had been struck down this would not be an issue.

President Bush postured to repeal the entire DOMA Act in order to gain conservative votes. Had he known what a roadblock DOMA could be for Same Sex Marriage he would have felt differently. This brings us to President Obama; who has stated in the past that his position on this issue was “evolving.” What is his administration’s position on this issue now?

Well, according to Eric Holder and the Justice Department, the portion of DOMA which remains intact regarding Full Faith and Credit; which would allow a Same Sex Marriage in Vermont to not be honored in Kansas; the government; for now; will not pursue a change. What the hell does that mean?

Full Faith and Credit has served this country well; both socially and commercially; for well over 200 years. The patchwork quilt created by Bill Clinton; and unchanged by his predecessors; is an ill omen of things to come. As a legal precedent it threatens us in more ways than just Same Sex Marriage. With Conservatives calling for a roll back to an era before the Civil Rights Act of 1964 it threatens us in more ways than you can imagine.

And, as these elections about Same Sex Marriage roll around to your state, it is important to remember that Civil Rights are not subject to elections. They are non-negotiable. 

"At the Devil's Table" by William C. Rempel

This is the story of Jorge Salcedo, a seemingly respectable, college educated engineer and businessman from Bogota. His father was a military man who was targeted during the years of the La Violencia, from 1946 through 1957, when as many as 300,000 Colombians were killed by the military, and by rival political groups, each vying for control of the government. Jorge was born into this environment.

The author casts Mr. Salcedo as a self-sacrificing hero, who, in this factually correct account of the Cali-Medellin Cartel Wars in Colombia during the late 1980's and early 1990's, covers the life of Mr. Salcedo from an ordinary man to his rise as the head of security for the Cali Cartel. An engineer by training and a security consultant by choice, Mr. Salcedo is approached by the Cali Cartel to kill Pablo Escobar, the legendary leader of the Medellin Cartel. Escobar is known for his extreme and violent rule. Kidnappings, murders and extortion were all part of his trade, and the Cali Cartel, headed by the Orejuela family in the Cali region of northern Colombia, wanted protection from this "madman".

Jorge is connected to many powerful people in the world of "security", and so he is able to tap into a group of British mercenaries, whom he imports to Colombia, intending on taking down the entire Medellin Cartel. But once the mission is accomplished, and Escobar is killed; with a seeming "nod and a wink" by both the United States and Colombian governments; things are not any better for the Cali Cartel, or our "hero" Mr. Salcedo. On the contrary, their bad times are just about to begin.

After the Colombian government announces that it is willing to enter into negotiations with the Cartel, the younger members refuse. After all, they haven't made their money yet. This serves to split the strength of the Cartel, making it easier for the government to conquer them. Mr. Salcedo, sensing the rapidly closing web, attempts to leave Cartel, but the cartel owners refuse his request. He's in; for better or worse.

When he then approaches the United States government; offering up his former employers, while seeking immunity for himself; he finds that nothing is ever that easy, and that he is not immune from anything which he has done. Things really heat up at this point, as Mr. Salcedo looks to save himself, from both the Cartel and the governments of Colombia and the United States.

There is a lot more to this book than meets the eye. In my own opinion, Pablo Escobar was killed by a British mercenary group, but it was really a hit orchestrated by both the CIA and the Colombian military. Escobar could not be taken alive. He simply had too much to say about too many high ranking people. The real aim was to silence him before he could talk about such things as the "economic turnaround" in Arkansas; which lead to the Iran-Contra Affair; and the 1992 election of then Governor Bill Clinton, to the Presidency.

That "economic turnaround" in the mid 1980's was accomplished with the help of then Vice President George H. W. Bush; supplying guns in exchange for drugs in order to arm the Nicarauguan Contras, in violation of the Boland Amendment. He went on to become a one term President, losing his re-election to Clinton in 1992. That election marked the first time in which the CIA fully owned both candidates for the office of President. Indeed, it is the one issue on which neither candidate was willing to engage the other during the entire campaign.

This is a very insightful book, but also one which seems, somehow, to divert attention from the very important questions concerning the role of our own government in the acquisition, transfer and sale, of huge amounts of cocaine at the height of the War on Drugs. Who were those powers? And, more importantly, where are they today? This is a very thought provoking book, if you allow it to be.

The Bus

I can think of nothing that says "I am completely out of touch with the people" more than this bus does. Aside from the cost of this behemouth, the excuses of security and privacy are bogus when you consider that this bus is being lead, and followed by, other security vehicles, fully equipped to handle just about anything that may come up. And let's not forget the air cover. Nothing, and I mean nothing, is coming within 50 feet of this bus.

I think the President inherited a lousy job, with every thing imaginable going wrong, even before he took office. But I have to tell you that I am sorely disappointed with his Presidency. Having lost control of his own party in Congress, while holding a majority in the Senate, and still getting nothing done which was promised in 2008, I do not think that I would be re-miss in stating that he just might need this bus after all!

I believe the American people need to demand that all of the former Presidents, who are still living today, form a committee to work in tandem and undo the mess which they have helped to create. A team composed of these former presidents, who are still all on the payroll, would represent both parties, and may be the only way to end the partisan politics and gridlock which are bringing America to its knees. It is an unusual solution to be sure, but then again, these are unusual times.

P.S. I just saw that the 2 buses- there are 2 buses- were made in Canada, while the President travels the country preaching job creation. You cannot make this stuff up! Robert / Wednesday / August 17, 2011