Why the Ongoing RFRA Battle is About Far More than Wedding Cakes

[cbayer]

http://religiondispatches.org/why-the-ongoing-rfra-battle-is-about-far-more-than-wedding-cakes/

BY SARAH POSNER APRIL 3, 2015



Now that both Indiana and Arkansas have enacted their Religious Freedom Restorations Acts, with each altered in response to an unprecedented and swift-moving opposition, it’s worth taking a look at what the landscape looks like going forward.

First, laws designed to provide a defense to businesses who refuse to serve LGBT couples, or who refuse to cater or photograph same-sex weddings, are not popular. One poll, from the Public Religion Research Institute, found that just 16% of respondents supported such laws. Jeb Bush, who had initially defended Indiana Governor Mike Pence and the RFRA that caused the vociferous backlash (albeit with little apparent understanding of how RFRAs function in the legal system), later said he would have preferred a “consensus-oriented” approach to a law that would not allow discrimination against LGBT people.

The Indiana fix–adding language that the law couldn’t be used to discriminate against people based on their sexual orientation–addressed the major issue that had generated the backlash. But its still legal under Indiana law to discriminate against people based on their sexual orientation, even though some municipalities in the state bar it. The Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State, said in a statement, “we still don’t believe these nondiscrimination provisions go far enough.”

But there are legitimate concerns beyond how these new RFRAs could be used to treat LGBT people. As the American Civil Liberties Union has said, while the new provision in the Indiana RFRA is a “major improvement, ” the law as now enacted “still poses a risk that it can be used to deny rights to others, including in education, access to health care, and other aspects of people’s lives.” Although the new law’s religious freedom claims and defenses are no longer available to for-profit entities, they still are available to non-profit entities who can invoke its provisions to raise religious objections to providing service.

more at link

[nil desperandum]

1. Indeed

cakes are a minor side issue, the reality is that under the public accommodation laws of Indiana there is no protected class for sexual orientation.

Consequently, refusing service on the grounds of sexual orientation has never been a violation of the public accommodation laws in Indiana.

One could not file litigation based on the public accommodation laws, one would have had to find some way to initiate it under equal protections.

[cbayer]

2. I think (hope) that this has been a watershed moment.

The outcry from both the general public and the business community speaks volumes and it's going to be much more difficult to just sneak this kind of thing through in the future.

[longship]

5. This is a very clear response.

It helps me understand the somewhat nuanced issues here. I've always known that the RFRA laws are rubbish, but your simple explanation of the legal consequences is an important clarification.

Thanks.

And a R& for the OP.

[nil desperandum]

8. You are welcome

we as a nation have a long way to go with respect to altering the public accommodation laws in the nation.

Marriage equality is one aspect of this, but until a federally recognized protection class that is based on sexual orientation is written into the federal legal system acts of public accommodation law discrimination are really not illegal in a majority of states.

Here's a link to the public accommodation laws for the US that is helpful for some of this, at least for me:

http://www.hrc.org/state_maps

When you click the link select choose and issue and choose public accommodation laws to see how few states protect on sexual orientation...it's not very many as of this time.

[longship]

9. Thank you, and my best regards. nt

[Panich52]

3. Focusing on the lgbt discrimination built into RFRAs detracts from the laws' basic intent.

Dominionists & other theocrats are using the fears of fundamentalists and RW evangelicals over the diminished status of religion. It is irrelevant that Christianity was never intended to have an 'honored' place in America's civic life. The religionists have convinced the majority of the flock that this is, and always was, a 'Christian nation.'

RFRAs have nothing to do with freedom or liberty. They are nothing more than attempts at boosting religion's 'status' -- my religious rights trump all other rights.

The disgusting Hobby Lobby decision by SCOTUS opened the door for these 'my rights trump yours' laws. That case was a blow to women's reproductive rights. Now the related RFRAs are said to target lgbts. How long before they are used to target others religionists find offensive, such as atheists, wiccans, pagans, and feminists?

This country's governance is being infested with theocrats who seek to impose a radical version of Christianity upon all. Their goal is not the free exercise of religion. Rather, it is the imposition of religious primacy in civic life. 'Rights trumping' is just part of the plan.

[cbayer]

4. Excellent points. They seem clearly to be a reaction to those who feel

threatened by GLBT civil rights/marriage equality legislation. And there is no doubt that Hobby Lobby opened the floodgates for them.

I do think that the outcry following the Indiana legislation is a very good sign that there is a very significant portion of the population that will not stand for this. The dominionists and theocrats will go down fighting, but I believe they will go down.

[nil desperandum]

6. SCOTUS

the truly interesting part about assigning a corporation the same religious views of the owner is that you can' seem to assign the same financial responsibilities to the owners...

That is truly annoying to me, after all if you are your corporation and your corporation is you for the purpose of sharing a religious view why can't I sue you instead of your corporation. If you and your corporation are tied together ideologically why are you not tied together financially.

So your corporation can deny coverage based on your views, but if I sue the corporation over that denial of coverage you are insulated from litigation because of your limited liability corporate legal defense....what an amazing turn of events indeed.

The Hobby Lobby mess was an idiotic moment for the SCOTUS and one that should offend all Americans who profess a belief in separation of church and state.

Corporations are not in fact people, they are a legal construct designed to shield their owners from undue financial burdens incurred by the corporation. Holding that they and their owners are linked in ideology but not in fiscal risk is bad policy all the way down the line.

Thank you for bringing this up.

[pinto]

7. "Tip of the iceberg" may be apt here. As it becomes clearer I hope more people get the implications.

And I think they will. I agree with the ACLU - this is about more than wedding cakes. Yet that case has brought the issue to a broader, mainstream media attention. And to a larger, mainstream public awareness.

[cbayer]

10. But I think it's a knife than cut both ways.

It needs to be settled once and for awhile. Hobby Lobby needs to be reversed and all of these laws revoked.

[pinto]

11. We're on the same page here, I think. Eventually it needs to be put to rest. Across the board.

The SCOTUS decision is the stickler. I'm a bit unclear on the mechanics, but I think only SCOTUS can overturn a preceding Supreme Court finding. In the meantime...

(aside) When asked about 2016 election stuff, I always start with one reply - the Supreme Court.

[cbayer]

12. I think, but am not sure, that SCOTUS can make a ruling that will apply

nationally. That means no more need for state by state legislation. Marriage equality will be the law.

But that won't eliminate all kinds of discrimination that comes from other directions.

Agree that SCOTUS is a huge reason to GOTV.

[nil desperandum]

13. Sadly

you are correct in stating those other directions.

Many states that are recognizing marriage equality or considering recognizing some civil union variant still have public accommodation laws that do not recognize sexuality as a protected class, meaning you are free to deny goods and services at any business that is considered a public accommodation to the LGBT community.

[cbayer]

14. I really appreciate your providing this information in these threads.

We recently had an article on why Indiana was different, but it's complicated. You have made it much clearer.

So, even if SCOTUS rules for marriage equality, other issues surrounding civil rights will still be unresolved, right?

[pinto]

16. A limited ruling, specific to those cases, would leave large gaps.

There needs to be a case brought that calls for a "blanket" decision of the court on the rights of sexual minorities.

[nil desperandum]

19. Correct

public accommodation laws in a majority of states do not identify LGBT sexuality as a protected class. Theoretically under those circumstances and without a separate equal protection or anti-discrimination law that specifically identifies those individuals as a protected class any business that is normally identified as a public accommodation (retail stores, restaurants, theaters, etc...) could refuse service to anyone not identified as a protected class...

There is some ability to seek litigative relief under equal protections but it's a far more difficult road especially if those equal protections aren't clear under the state's legal code.

[cbayer]

21. So, if I am understand this correctly, there could be federal legislation (or a ruling?)

that would provide a protected class for LGBT sexuality. Is that right?

Is there anything like that in the works? Could the Civil Rights Act be amended?

[nil desperandum]

22. There

is nothing like that in the works that I am aware of at the moment that is a national piece of active legislation pending in committee...it doesn't mean there isn't something sitting somewhere waiting for co-sponsors...and yes it could take shape as an updated Civil Rights Act, it really depends on how it is approached.

Currently at the state level it's being added into the anti-discrimination codes where it's being done and the public accommodation laws are updated to reflect that sexuality language.

I'm no legal expert on this stuff, just someone with an inordinate amount of time spent reading minutiae....

I find it hard to believe in the United States that some folks are still looking to find ways to prevent some of our citizens from being treated equally under the law, especially under the guise of exercising a "freedom"...if we are free to discriminate against those with whom we disagree for religious reasons we risk becoming the kind of nation that is no longer a melting pot of ideas and cultures but a series of separate stoves each containing its own unique and boring pot that can no longer commingle with the other pots...hardly the stuff that made us great.

[pinto]

23. Thanks for your input. We need people willing to read the minutae...

[pinto]

18. And SCOTUS has historically been hesitant, iirc, to make sweeping decisions. (nt)

[pinto]

15. Good point - But that won't eliminate all kinds of discrimination that comes from other directions.

Legislation alone won't eliminate societal discrimination. It can't. That's our job.

Yeah, a blanket SCOTUS ruling would apply nationwide. That legal protection is doable and enforceable. There are solid precedents for SCOTUS to weigh in on national issues of equality based on an individual's identity. Women and racial minorities come to mind pretty quickly. It's not like they're treading into unknown territory. Duh.

[cbayer]

17. Social prejudice always lags behind the legislation, but, like you said,

that's our job to address.

Glad to see coalitions of religious and secular organizations growing to fight back against the religious right. The tone of the country seems to be on our side, despite those loud and very motivated members of the hate team.

[nil desperandum]

20. SCOTUS

I keep thinking at some point it could be approached from an equal protection standpoint instead of just the public accommodation or anti-discrimination aspect as those laws almost always require an identified protected class to be effective.

Equal protection sort of offers the option that all citizens need to receive equal protection under the law regardless of whether or not they are specifically identified as a protected class, it's a tighter definition and probably more difficult to litigate but one can hope that a case along those lines could be heard and reviewed.

[pinto]

24. Interesting approach. Probably a more equitable take, constitutionally. Yet I'll differ on the specs

The precedents have rested on protected class status, if I understand them correctly. Piecemeal and confusing, imo. But it is what it is.