A perfect example of how religious-liberty bill’s critics get it wrong

Indiana’s new religious-liberty law, of interest to those following Senate Bill 129 here in Georgia, is generating criticism and outright anger from those who see it as allowing discrimination toward gays and lesbians. Prominent among the critics are celebrities, who seem as eager as ever to say what they’re “supposed to” say without knowing the facts.

George and Brad Takei in Los Angeles, March 2015. (Jason Kempin/Getty Images)

George and Brad Takei, Los Angeles, March 2015. (Jason Kempin/Getty Images)

That goes not just for celebrities lashing out at the Hoosier State on social media, but even those penning op-eds about the law. Consider what actor George Takei, who has called for a boycott of the entire state of Indiana, wrote for MSNBC.com:

“My husband Brad and I like to spend our holidays in the White Mountains of Arizona. There’s a small town called Show Low where we’ve passed many a merry Christmas. We’ve been regulars at the July 4th parades there, entertained friends and family over the years, and consider it our home away from home. But last year, it was very nearly going to be impossible for us to travel back to Arizona in good conscience. You see, at that time, Arizona was on the verge of passing a bill that would have made us feel entirely unwelcome.”

The piece goes on for almost 800 more words, but you can stop right there if you know the first thing about the law in Arizona, Indiana and much of the rest of this country.

Yes, Arizona last year passed a much more expansive law that was vetoed by Gov. Jan Brewer. But since 1999, Arizona has had a law on the books that is nearly identical to the one in Indiana, which Takei would have us boycott. That 1999 Arizona law reads, in pertinent part:

“A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.

“B. Except as provided in subsection C, government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.

“C. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is both:

“1. In furtherance of a compelling governmental interest.

“2. The least restrictive means of furthering that compelling governmental interest.

“D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.”

If you don’t see the words “license to discriminate” in there, put down the megaphone and read what the corresponding portion of Indiana’s new law says:

“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.”

There are two substantive differences between these texts. The first is the phrase “… likely to be substantially burdened…” which allows a plaintiff to try to pre-empt the burden. The other is the phrase “regardless of whether the state or any other governmental entity is a party to the proceeding,” which allows the law to be used as a defense in a matter between private parties.

This second difference doesn’t necessarily matter from the standpoint of discrimination: First, a private party suing another for discrimination would be relying on the same law that a governmental entity would sue to enforce. So in both cases, the court ruling would hinge on whether banning discrimination was truly the least restrictive way to achieve a compelling government interest. Second, as a practical matter, the high-profile discrimination cases involving state religious-freedom acts, or RFRAs, have been pursued by government agencies anyway.

And, for the umpteenth time: These claims of religious-freedom as a defense for discrimination have failed in court.

The Arizona and Indiana laws are similar in other respects. In both states, “person” can include a private corporation. In both states, free exercise of religion is covered “whether or not the exercise is compulsory or central to a larger system of religious belief.” In both states, a religious person who wins the case can obtain “appropriate relief” from the government, including attorney’s fees.

If Takei believes Indiana will now be hostile toward him and other gay Americans, he ought to feel similarly threatened by Arizona’s law. But by his own admission, he felt perfectly comfortable in this “home away from home” for years after Arizona’s law was passed in 1999. So why doesn’t his personal experience in Arizona inform his opinion of Indiana’s new law?

In his defense, Takei isn’t alone in ignoring how similar Indiana’s law — like Georgia’s SB 129 — is to laws that have been on the books for more than a decade without generating protests and boycotts. Connecticut Gov. Daniel Malloy announced a ban on official state travel to Indiana, apparently forgetting his state has its own RFRA that arguably offers even stronger protection to people of faith.

Some of those who condemn the new law claim it’s because of the “context” in which this legislation is proposed — meaning, shortly before the Supreme Court is expected to declare same-sex marriage legal across the land. That’s a peculiar argument, if you think about it: At a time when courts are in virtual lockstep ruling in favor of gay rights, and when the highest court in the land is expected to issue (another) landmark ruling in favor of gay rights, are we really expected to believe courts will turn around and allow RFRAs act as a “license to discriminate” against gay Americans?

Maybe that isn’t really what these critics would have you believe. Maybe they just want you to believe what they say matters more than what the laws and the courts say.

Reader Comments 0

100 comments
Finn-McCool
Finn-McCool

Kyle, I think we need to give the benefit of the doubt to Takei.

I mean, he has explored strange new worlds, seeked out new life and new civilizations, and boldly gone where no man has gone before.


Do you have that in your resume? Ahhh, noooooo.

LogicalDude
LogicalDude

kyle, Another supporter gets it wrong (or is it right?) Copied from the political blog. 

" the idea that sexual freedom trumps everything else" - Moore


It is the incessant push from supporters of this "religious liberty" bill against the forces of "erotic liberty" or "sexual libertarianism."  (their words, not mine).


You keep placing this in terms of the bill's critics, but when you look at the bill's supporters, you get an idea of why the critics are saying what they say.   They see oncoming discrimination, and supporters of a bill touting it as a defense against gays.  That is wrong, and certainly strong words will result when discrimination raises its ugly head again.

JFMcNamara
JFMcNamara

Why do you care so much about this?  I don't get it.  Right now, religions can do what they want.  Why do we even need this?


This whole "debate" is moronic. Pass it, don't pass it. It won't matter because the discrimination won't hold up on court.  I guess with ISIS no longer a threat and no one caring about Iran, LGBTs are the new thing to be scared about?  We have to have some reason to be mad I guess.

Kyle_Wingfield
Kyle_Wingfield moderator

@JFMcNamara "This whole "debate" is moronic. ... It won't matter because the discrimination won't hold up on court."
I actually agree with this. It should never have been controversial. But I would point out that ISIS and Iran aren't exactly state-level issues.

MarkVV
MarkVV

Although the current debate about the “religious liberty” bills is focused on the most obvious question of protection of the LGBT community against discrimination, the more general issue is the continuing attempts of religious zealots to control the legal behavior of others under the pretext of defending their own religious rights. To accomplish that they define the constitutional freedom to exercise religion to include not having to do anything that would allow others to do what the law allows others to do, if it is against their religious morality. This is what I callthe notion of the supremacy of the religious feelings of any group of people over the laws of the society.” It is the idea that a law of the land, or a part of it, should not apply to them if their abiding by the law would allow some other people to do what they – the religious zealots – consider immoral.Not that it would prohibit them to exercise their religion in any real sense of the word “exercise“ “Exercise a religion” is perverted into a “freedom of conscience,” allowing anybody to claim an affront to religious conscience to do something that might allow or help somebody else to do something the zealot considers morally wrong.


Even a cursory examination show that the application of this concept is highly selective. In a modern society, in which there is an enormous complexity of interaction and connections of its members, it is virtually impossible to avoid doing something that does not possibly allow somebody to do something conflicting with the religious morality of major religions. It starts with the use of the taxes we pay, but extends far more pervasively. Thus the attempts are focused on the most visible issues, such as the reproductive rights of women or homosexuality.

MarkVV
MarkVV

“The bill would establish the legal standard for courts to use in free-exercise cases.”


This seemingly innocuous argument hides, of course, the way the law would allow discrimination. You make the legal standard so difficult to prevail for those discriminated that they either won’t try the legal recourse, or loose in the court.

ALibNotToBeMessedW/
ALibNotToBeMessedW/

Kyle,


Did you see Governor Pence ducking and diving Stephanopolous' questions last night?  You can put lipstick on a pig, but it is still a pig.


And I'd love to hear you answer a question I and others have posed numerous times: why do we even need a similar bill in Georgia?  What problem is it addressing?  

Point
Point

@Don't mess with this lib That's what I would like to know.  You tell us what it won't do, but why do we need the law in the first place?

straker
straker

Kyle - "allows government to do anything that might be deemed not-insane"


Well, considering some of the things our government has done in the last decade, I might actually have to agree with you on the "not-insane" part.

straker
straker

Kyle - "why do you think the hypothetical examples couldn't happen in Georgia"


And why do you think our current laws on the books are not sufficient to handle these examples?

Kyle_Wingfield
Kyle_Wingfield moderator

@straker Because the most current free-exercise case law we have, dating to the 1940s, sets a "rational basis" test that, in essence, allows government to do anything that might be deemed not-insane. That's not much of a protection. 

PinkoNeoConLibertarian
PinkoNeoConLibertarian

Well, I'm not a lawyer, nor did I stay at Holiday Inn Express last night. But, ignoring the politicians, celebrities and opinion columnists who are all pushing their own agendas, I sure do see a lot of legal scholars saying that this particular law (and the one in Arizona) is much more broad and vague in its definitions than the federal one and the ones in the other 18 states. 


Kyle_Wingfield
Kyle_Wingfield moderator

@PinkoNeoConLibertarian And there are plenty of legal scholars saying the reverse. Here from a leading scholar on these questions who backs gay marriage and religious liberty bills: http://www.weeklystandard.com/blogs/uva-law-prof-who-supports-gay-marriage-explains-why-he-supports-indianas-religious-freedom-law_902928.html

Here a story with varying points of view: http://www.indystar.com/story/news/politics/2015/03/29/religious-freedom-law-really-means-indiana/70601584/

PinkoNeoConLibertarian
PinkoNeoConLibertarian

@Kyle_Wingfield @PinkoNeoConLibertarian No, those don't say the reverse. What they say is that it hasn't happened yet, but that it could and would be on a case by case basis. Even those articles call into question the intent of the authors of this law. I'm not a mind reader so I have no idea of the intent.

ODDOWL
ODDOWL

Mike Pence and the extreme right wing, sanctified and holy, evangelical, protestant Republican, Christian zealots in Indiana and America are simply bigots, who harbor visceral homophonic animus towards Gay people...  We the People reject thee... Mike Pence just blew his Presidential aspirations ...  Church and the secular state are separate...

CherokeeCounty
CherokeeCounty

Ever hear of a guy named Micah Clark?  How about Curt Smith or Eric Miller?


No?  Me either. But amazingly enough, for a law that has nothing to do with discrimination, these three heads of loud anti gay Indiana organizations were invited to Governor Pence's private bill signing ceremony.


I wonder, Kyle, why you feel the need to fall on your sword about this bill. Senator McKoon couldn't have been clearer. No, the bill probably won't result in wholesale disruption of commercial opportunities for gay people to get the goods and services they need. But that's clearly the purpose behind it.


Why can't you just be honest with your readers and admit it?  Even Senator McKoon has done so. No one is buying your blarney.

quickworkbreak
quickworkbreak

@Kyle_Wingfield @CherokeeCounty The last comment was regarding honesty from McKoon.  He was pretty clear when he verbalized that adding a nondiscrimination amendment would “completely undercut the purpose of the bill.”

CherokeeCounty
CherokeeCounty

@Kyle_Wingfield @quickworkbreak  Kyle, the senator couldn't possibly have been clearer when he said that adding a non discrimination clause would gut the bill. You, and me, and everyone else knows what he meant. You do yourself no favors when you continue to refuse to admit it.

Kyle_Wingfield
Kyle_Wingfield moderator

@CherokeeCounty No, the problem here is you are refusing to question the premise that "anti-discrimination" necessarily concerns LGBT folks or any other class of people. As my post explains, giving an automatic pass to anything that can be deemed "anti-discrimination" is essentially drawing a blueprint for circumventing religious liberty in ways that have nothing to do with discriminating against people.
And as I said in that piece, I think there must be a way to draw a narrower protection against discrimination that addresses the concerns raised about this bill, even if those concerns are IMO unfounded.

David Daily
David Daily

Are there real examples in Georgia showing where this bill is needed? I've seen lots of hypothetical scenarios (Muslim baker, Jewish wedding, etc), but I haven't seen any real scenarios in Georgia to show that this new law is needed.

I'm honestly curious. For example, who in Georgia has been compelled to do something against their religion? I'm aware of scenarios in other states (the florist in WA, the baker in CO, the pediatrician in MI who refused to treat the child of a lesbian couple, etc), but I've never read of one here. The Washington florist who refused service to a gay couple and is getting a lot of media for the $1001 fine she got would be free to turn away gay customers in GA today without breaking the law.
 

Gay people currently can be discriminated against without fear of legal retribution, as there are no state level protections. SB 129 doesn't change that except to raise the bar even higher. 

Should anti-discrimination laws be passed in the future that protect LGBT persons in GA, this bill would shield those who choose to discriminate from legal action.

What about the unintended consequences of this bill? Churches could push aside community building codes and environmental regulations and build enormous buildings in residential areas. Rastafarians could smoke pot without being arrested. Since businesses are "persons" in the eyes of the law, this bill could be used to skirt any number of state and local regulations.

Kyle_Wingfield
Kyle_Wingfield moderator

@David Daily "Are there real examples in Georgia showing where this bill is needed?"

Why do you think the hypothetical examples couldn't happen in Georgia? Why do you think the actual cases from other states couldn't happen in Georgia?

TGT88
TGT88

"Some of those who condemn the new law claim it’s because of the “context” in which this legislation is proposed..." 


Ha! You mean the guy in the next cubicle in your office? (Bookman) And again, this nonsense about "discrimination" when it comes to same-sex "marriage" is absurd. Virtually ALL law "discriminates." And whatever legal definition of marriage prevails, there will be a measure of "discrimination" involved. (See: http://www.trevorgrantthomas.com/2012/06/to-define-marriage-we-must-discriminate.html) Though liberals (at least those on Bookman's blog) cannot seem to bring themselves to reveal how they would "discriminate" and define marriage. 

Jefferson1776
Jefferson1776

Go sell your snake oil someone else, it won't pass.

GMFA
GMFA

Most people see this law as a try to circumvent what the Supreme Court will likely to with same sex marriages. And the timing of it all certainly makes one suspicious. Fear drives this Bill, enlightenment and inclusion drives its foes.

Chram
Chram

You would think if the religious folks were tired of being "persecuted" by being forced not to discriminate based on their narrow religious views, that they would accept defeat and stop this charade, or at least move to another country that is based on one religion. Fortunately, these last desperate attempts will be behind us soon enough. Although I'm sure some GA baker will have an issue baking a cake for a same-sex wedding in a few months.

WilJohnson
WilJohnson

Let's see if I can clarify what Wingfield cannot.  The original Federal law was centered around Native Americans using peyote in the tradition practice of their religion. Recent winners in RFRA cases include Apaches being able to keep eagle feathers as part of their traditional religious practice and a Native American kindergartner who was allowed to keep his long hair.


Recent losers in court have been photographers who refused to take gay wedding pictures, a baker who refused to bake a gay wedding cake, a fireman who refused to drive a fire truck in a parade which included an LBTG group and a policeman who refused to police a mosque.


Wingfield supports legislation which would make it possible for all the latter have a chance to win by raising the bar very, very, very high. It is disingenuous for him to say the bill simply sets standards.

Corey
Corey

Where were all these people of faith who are so hurt and discriminated against before courts began chipping away at bans to same sex marriage? If the faith community are so hurt and need extra protections via legislation why weren't they out in droves holding pray-ins and marching in the streets? I do not recall one incident making national news about the faithful being wronged and not having laws to protect them because of their faith.

jezel
jezel

Way too much explaining. Einstein  was quoted as saying that if a person cannot make his explanation simple...then he does not understand the subject. And that is one scary thing with this bill.

Kyle_Wingfield
Kyle_Wingfield moderator

@jezel Actually, there's a perfectly simple explanation: The bill would establish the legal standard for courts to use in free-exercise cases.

It's just that every time I use that explanation, the critics want to practice mind-reading with the bill's sponsors instead.

jezel
jezel

@Kyle_Wingfield @jezel Well you do have to consider the political environment and timing surrounding this bill...thus the authors motives. The fire chief incident has not helped your cause. The attempts by some... to deny gay marriage... does not help your cause either.

LogicalDude
LogicalDude

Kyle,

Would Georgia's law allow persons to refuse service to gays based on religious beliefs? 


Indiana's law expands "person" to corporate persons.  Not sure if Georgia's law had that too. (Although I think so, but did not explicitly expand on "person") 

Kyle_Wingfield
Kyle_Wingfield moderator

@LogicalDude No.

Georgia law in general includes corporations in the definition of "persons," and this bill does not change that.

LogicalDude
LogicalDude

@Kyle_Wingfield @LogicalDude Then why is it so hard for an amendment to be added to clarify this? 

Seems like critics of the bill would be silenced if the bill creators explicitly say the intended results of the bill is to not allow discrimination of this sort. 


But, if the creators of the bill are unwilling to add a clarifying amendment, then critics are right to criticize possible unintended consequences of the bill. 

LogicalDude
LogicalDude

@Kyle_Wingfield @LogicalDude

I meant the amendment to clarify that discrimination of gays is not the intended results of this bill. 

(Sorry for not clarifying). 

Seems an amendment clarifying or confirming that discrimination is not legalized would be a no-brainer for the creators of the bill. If they mean the bill as only a better criteria for legal purposes and not meant as a discriminatory bill. 

Kyle_Wingfield
Kyle_Wingfield moderator

@LogicalDude And as I have said, a narrowly tailored amendment would be palatable. The one offered was way too broad.

332-206
332-206

Maybe most prefer their hypotheticals, compared to the hypotheticals from your last post on this issue.


Kyle_Wingfield
Kyle_Wingfield moderator

@332-206 I'm sure they do. The difference is, their hypotheticals have actually been tested, and their theories proven wrong.

332-206
332-206

@Kyle_Wingfield @332-206

Right now, the reaction that's giving Georgia legislators pause is the reaction to Indiana's untested law.

And your hypotheticals...are still hypothetical.

pgx31069
pgx31069

@Kyle_Wingfield @332-206 The Hobby Lobby decision begs to differ.  I understand that was a federal case, but it shows that courts are already willing to bend over backwards to accommodate incredibly specious arguments when it comes to religious freedoms.  In that case, there was no scientific or medical basis for the plaintiff's objections, nor was there even a biblical one but because they were "sincere" in their belief, the court allowed them to opt out of that provision of the ACA even though there was no substantial burden to compliance.

Kyle_Wingfield
Kyle_Wingfield moderator

@pgx31069 "incredibly specious arguments when it comes to religious freedoms."

It's incredibly specious to say someone shouldn't have to subsidize a good or activity they believe to be evil? If we're not going to allow conscience exemptions, just one blanket standard, whose conscience gets to set the standard? Elsewhere on this thread, you've expressed contempt for the standard people previously set according to their consciences. Why should we let your conscience, or those who think like you, set the new standard?

Isn't it better to have a bright line for courts to use when settling disputes about where one person's rights end and another person's rights begin? That is all this bill does.

LogicalDude
LogicalDude

@Kyle_Wingfield @pgx31069 "That is all this bill does", then adding clarifying non-discrimination amendments should be a no-brainer.  If this bill is not designed to allow discrimination, then having it explicitly written should not change the result of the bill.  It will silence critics who *think* it could allow discrimination.  

Plus, it will show supporters who want discrimination that this bill is not the way to get that intended result. 

pgx31069
pgx31069

@Kyle_Wingfield @pgx31069 My problem with the "bright line" that this bill purports to set, is that it is based on "religious beliefs" and doesn't seem to clarify anything at all, it merely provides further legislative and judicial basis for allowing any sincerely held belief without really subjecting those beliefs to scrutiny.  If this bill would explicitly carve out exceptions for non-discrimination that most reasonable people already believe to be worthy of protection (race, sex, and yes sexual orientation as much as the hard-liners wish it were otherwise) then most people myself included wouldn't have an issue with it.  Instead we're issued vague assurances that that's not the motivation of the bill's sponsors and even if it were, well, we promise it won't be used that way.

As far as subsidizing activity that people believe to be evil - many, many people in this country have legitimate, well-founded and articulated reasons for opposing war, yet they are forced to pay taxes which fund the military.  It is the lesser of two evils, so to speak, to compel them to pay the same taxes as everyone else.  Whose conscience should set the standard?  That's a question that every democracy must continually answer. At one time it was accepted practice to enslave others, forbid interracial marriage, deny suffrage to all but white males, and discriminate against women -- religious belief was used to justify all of those behaviors to varying degrees.  Our collective conscience has changed over time and most would argue for the better.  The outcry that is being heard now is a reflection of that changing standard.