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Indiana backlash grows ahead of Final Four


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The firestorm over a new Indiana law that critics say would allow businesses to refuse service to gay people intensified Monday as Democrats pounced, unions pulled conventions from the state and businesses scrapped expansion plans.

The outcry over the religious freedom statute has rattled Indiana Republican leaders, who are now eyeing "clarifications" to the law in order to quell the backlash that threatens to tarnish the state’s image and hurt its economy.

The controversy is an ill-timed headache for Gov. Mike Pence ®, who's weighing a 2016 presidential run, with his state set to host the Final Four of the NCAA basketball tournament this weekend.

Facing pressure to move the games from Indianapolis, NCAA officials are voicing reservations of their own about the religious freedom law.

"We are especially concerned about how this legislation could affect our student-athletes and employees," NCAA President Mark Emmert said after the law was signed.

Charles Barkley, a former NBA star who provides television commentary on the NCAA tournament, argued Monday that the Final Four should be moved out of Indiana.

“As long as anti-gay legislation exists in any state, I strongly believe big events such as the Final Four and Super Bowl should not be held in those states’ cities,” he told USA Today.

Confronting the backlash, state GOP leaders staged a news conference Monday morning in Indianapolis where they defended the law against accusations that it promotes discrimination, and vowed to make changes, if need be.

"To the extent that we need to clarify through legislative action that this law does not and will not be allowed to discriminate against anyone, we will do just that," said David Long ®, the president pro tem of the state Senate.

How they tweak the law, if at all, remains to be seen, but the uproar has given Democrats an opening to bash the Republicans as hostile to the gay community and out of touch with voter sentiments.

Hillary Clinton said it was "sad" that such a law "can happen in America today." Rep. André Carson (D-Ind.) urged state lawmakers to repeal the "backwards law." And Rep. Steny Hoyer (Md.), the House Democratic whip, likened the measure to the sanctioned discrimination against southern blacks decades ago.

"Just as the government has no role in promoting or infringing upon individuals' personal religious beliefs, neither does it have the authority to provide official sanction to discrimination of the kind too many Americans experienced during the period of segregation and Jim Crow," Hoyer said in a statement.

Acknowledging that full repeal is a long shot in the state's Republican-dominated legislature, gay rights advocates are pushing a series of changes they say are needed to prevent discrimination.

The advocates want to install language updating state anti-discrimination laws explicitly protecting lesbian, gay, bisexual and transgender (LGBT) people in the areas of housing and employment. They also want to clarify that the new law cannot be invoked to defend discrimination barred by other state or local laws.

"The most immediate solution is to clarify the legislation," Adam Talbot, spokesman for the Human Rights Campaign, said Monday.

Gov. Scott Walker (R-Wis.), a likely presidential contender, waded into the controversy Monday by stressing the importance of religious liberty.

"As a matter of principle, Gov. Walker believes in broad religious freedom and the right for Americans to exercise their religion and act on their conscience," said AshLee Strong, press secretary for Walker's Our American Revival.

Another likely presidential hopeful, Sen. Marco Rubio (R-Fla.), backed the law as well.

“No one here is saying it should be legal to deny someone service at a restaurant or at a hotel because of their sexual orientation, I think that’s a consensus view in America,” Rubio said Monday on Fox News’s “The Five.”

“The flip side of it is: Should a photographer be punished for refusing to do a wedding that their faith teaches them is not one that is valid in the eyes of God?”

Some Capitol Hill Republicans are treading carefully, searching for a delicate balance between ensuring religious freedom and fighting discrimination.

“Hoosier hospitality is the hallmark of our state, and I am following closely the ongoing efforts of Gov. Pence and the General Assembly to reinforce that Indiana is a state that protects religious liberty and rejects discrimination,” Sen Dan Coats (R-Ind.) said.

Signed into law on Thursday by Pence, the Religious Freedom Restoration Act is designed to protect individuals and businesses from being forced to violate their religious beliefs. Under the law, the state may not "substantially burden a person's exercise of religion" unless it's done in the name of a "compelling government interest." The law takes effect on July 1.

Supporters say it's a common-sense way to prevent the government from encroaching on constitutional rights. Critics contend it empowers individuals and businesses to discriminate against gays without fear of legal recourse.

Nineteen other states have similar religious freedom statutes, modeled on a 1993 federal law signed by Bill Clinton — a dynamic that Pence and other supporters are quick to note.

Opponents counter that many of those states have separate laws protecting gays from discrimination — laws that Indiana does not have. Opponents are also wary of language in the law that gives explicit rights to for-profit businesses to invoke “the free exercise of religion” — language not included in the federal law.

Appearing Sunday on ABC’s “This Week with George Stephanopoulos,” Pence denied that the law promotes discrimination against gays, though he ducked questions about whether it would empower businesses to refuse gay customers legally.

“This is not about discrimination, this is about empowering people to confront government overreach,” he said.

As Indiana's lawmakers weigh their next move, the blowback has continued to swell.

On Monday, Connecticut Gov. Dan Malloy (D) signed an executive order barring state-funded travel to Indiana, joining mayors in San Francisco and Seattle who had earlier installed a similar prohibition.

Apple CEO Tim Cook, the most prominent gay figure in the business world, weighed in with a scathing op-ed in The Washington Post in which he characterized such laws as "very dangerous."

"They go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality," Cook wrote.

In a blow to Indiana's economy, Angie's List has scrapped plans for a possible expansion in Indianapolis, while the American Federation of State, County and Municipal Employees (AFSCME) announced it was moving its annual Women’s Conference, scheduled for October in Indianapolis, out of the state.

"This un-American law allowing businesses to refuse service to gay and lesbian customers sets Indiana and our nation back decades in the struggle for civil rights," AFSCME President Lee Saunders said in a statement.

http://thehill.com/blogs/blog-briefing-room/news/237425-indiana-backlash-grows-ahead-of-final-four

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So....

A conservative shop keeper refuses to do business with a same-sex couple = protected religious freedom

A liberal-leaning corporation refuses to do business with a state permitting discrimination = crazy lunacy by the Left?

Got it. ...just don't understand it. :gofig:

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Gay money spends just as well as straight money. Bad business if you ask me to turn down a customer if they want to increase your business.

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1. Could someone please show me the section in the law that says that it is okay to discriminate against gay people? You can't? That's right BECAUSE IT ISN'T IN THERE! If, as a result of the law, someone's rights are violated,THEN go after the person who violates another's rights.

2. I think that I have the constitutional right to be racist and sexist and homophobic and a complete a-hole. Am I wrong? I am pretty sure that our society now thinks that it is a job of the government to make everyone like everyone else.

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So....

A conservative shop keeper refuses to do business with a same-sex couple = protected religious freedom

A liberal-leaning corporation refuses to do business with a state permitting discrimination = crazy lunacy by the Left?

Got it. ...just don't understand it. :gofig:/>

All these corporations are just fine doing business in places around the world that do far worse than just refuse to serve someone. Funny how that works.
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Gay money spends just as well as straight money. Bad business if you ask me to turn down a customer if they want to increase your business.

They will serve them. They just won't be forced to be a participant in an event that violates their beliefs
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So....

A conservative shop keeper refuses to do business with a same-sex couple = protected religious freedom

Not something that's being proposed. The law simply gives a business owner the right to argue their case before a judge with the standard being that the gov't needs to show a compelling interest to abridge their religious freedom claim. The situation you propose here would lose 1000 out of 1000 times in court.

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Gay money spends just as well as straight money. Bad business if you ask me to turn down a customer if they want to increase your business.

Which is why 999 times out of 1000, this law won't change a damn thing. The local lunch spot in Butthump, Indiana is not going to refuse to serve the gay dude his country fried steak. The hardware store isn't going to not take gay people's money for a set of socket wrenches. You will have a small handful of cases where it goes beyond that and requires more involvement, time, talent and personal investment and is about a specific event, project or activity they are being asked to materially participate in. In those cases, some may feel their conscience cannot permit them to accept that business and they will refer them to someone else.

It's called a compromise. Compromise is the art of each side giving the other what they want or need the most while both sides room to breathe and not be trampled upon. Neither side gets EVERYTHING they want....unless of course you strike down the RFRA and laws like it and compel people to abrogate their religious beliefs in favor of all things gay marriage. That's not a compromise at all, it's railroading people.

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... I think that I have the constitutional right to be racist and sexist and homophobic and a complete a-hole. Am I wrong? I am pretty sure that our society now thinks that it is a job of the government to make everyone like everyone else.

I agree, one has a constitutional right to be racist, sexist, homophobic, anti-Semitic, etc. or hold those beliefs.

But one does not have a constitutional right to deny service to the groups one hates at a publicly licensed lunch counter or business, to make them sit at the back of the bus, to force them into separate schools, to discriminate against them in hiring, renting, sales, etc. I thought we cleared that up 50-60 years ago.

The Indiana law essential allows such discrimination in the name of religion. It and similar laws in other states only came about in reaction to conservative "Christians" fear of LGBT rights. I can't help but wonder if they would be equally as excited about state protection for a licensed Islamic businessman refusing to serve Buddhists, Christians, or women not dressed in a burqa.

[And while I don't have a copy of the national law signed by Clinton in the 1990's handy, if it permitted such discrimination, then I think it was wrong also regardless of whether it was signed by a liberal Democrat!]

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... I think that I have the constitutional right to be racist and sexist and homophobic and a complete a-hole. Am I wrong? I am pretty sure that our society now thinks that it is a job of the government to make everyone like everyone else.

I agree, one has a constitutional right to be racist, sexist, homophobic, anti-Semitic, etc. or hold those beliefs.

But one does not have a constitutional right to deny service to the groups one hates at a publicly licensed lunch counter or business, to make them sit at the back of the bus, to force them into separate schools, to discriminate against them in hiring, renting, sales, etc. I thought we cleared that up 50-60 years ago.

The Indiana law essential allows such discrimination in the name of religion. It and similar laws in other states only came about in reaction to conservative "Christians" fear of LGBT rights. I can't help but wonder if they would be equally as excited about state protection for a licensed Islamic businessman refusing to serve Buddhists, Christians, or women not dressed in a burqa.

[And while I don't have a copy of the national law signed by Clinton in the 1990's handy, if it permitted such discrimination, then I think it was wrong also regardless of whether it was signed by a liberal Democrat!]

They can't refuse to serve a gay person lunch or deny them service in a store or any other business. It does prevent the government from forcing the business owner or any other person from having to participate in an event that violates their convictions.
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http://www.theatlantic.com/politics/archive/2015/03/what-makes-indianas-religious-freedom-law-different/388997/

Is the Indiana Law the same as in other states? Some research reveals there really is more to it than some would like to believe.

As for me, even as a Free Speecher and as a Christian man, if you want to subvert the statutes to discriminate and hide behind the law, well my business will walk right on past your door.

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Just to get this out of the hyperventilating media and overheated rhetoric from special interest groups of what this law is and does, some more level-headed assessment from law professors, some of whom even support gay marriage:

Law professor: Why Indiana needs 'religious freedom' legislation

I am a supporter of gay rights, including same-sex marriage. But as an informed legal scholar, I also support the proposed Indiana Religious Freedom Restoration Act (RFRA). How can this be?

It's because — despite all the rhetoric — the bill has little to do with same-sex marriage and everything to do with religious freedom.

The bill would establish a general legal standard, the "compelling interest" test, for evaluating laws and governmental practices that impose substantial burdens on the exercise of religion. This same test already governs federal law under the federal RFRA, which was signed into law by President Bill Clinton. And some 30 states have adopted the same standard, either under state-law RFRAs or as a matter of state constitutional law.

Applying this test, a unanimous U.S. Supreme Court recently ruled that a Muslim prisoner was free to practice his faith by wearing a half-inch beard that posed no risk to prison security. Likewise, in a 2012 decision, a court ruled that the Pennsylvania RFRA protected the outreach ministry of a group of Philadelphia churches, ruling that the city could not bar them from feeding homeless individuals in the city parks.

If the Indiana RFRA is adopted, this same general approach will govern religious freedom claims of all sorts, thus protecting religious believers of all faiths by granting them precisely the same consideration.

But granting religious believers legal consideration does not mean that their religious objections will always be upheld. And this brings us to the issue of same-sex marriage.

Under the Indiana RFRA, those who provide creative services for weddings, such as photographers, florists or bakers, could claim that religious freedom protects them from local nondiscrimination laws. Like other religious objectors, they would have their day in court, as they should, permitting them to argue that the government is improperly requiring them to violate their religion by participating (in their view) in a celebration that their religion does not allow.

But courts generally have ruled that the government has a compelling interest in preventing discrimination and that this interest precludes the recognition of religious exceptions. Even in the narrow setting of wedding-service providers, claims for religious exemptions recently have been rejected in various states, including states that have adopted the RFRA test. A court could rule otherwise, protecting religious freedom in this distinctive context. But to date, none has.

In any event, most religious freedom claims have nothing to do with same-sex marriage or discrimination. The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a "license to discriminate," and it should not be mischaracterized or dismissed on that basis.

Daniel O. Conkle, professor, Indiana University Maurer School of Law

http://www.indystar.com/story/opinion/readers/2015/03/07/indiana-needs-religious-freedom-legislation/24477303/

Indiana's Religious Freedom Restoration Act, Explained

John McCormack

March 27, 2015 2:10 PM

On Thursday, Indiana governor Mike Pence signed the Religious Freedom Restoration Act (RFRA) into law, and some celebrities, politicians, and journalists--including Miley Cyrus, Ashton Kutcher, and Hillary Clinton, just to name a few--are absolutely outraged. They say the law is a license to discriminate against gay people:

Meanwhile, activists are calling for a boycott. The CEO of SalesForce, a company that does business in China, is pulling out of Indiana. The NCAA has expressed concern about holding events there in the future. And the city of San Francisco is banning taxpayer-funded travel to the state.

Is the Religious Freedom Restoration Act really a license to discriminate against gay people?

No. Stanford law professor Michael McConnell, a former appellate court judge, tells THE WEEKLY STANDARD in an email: "In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else."

So what is the Religious Freedom Restoration Act, and what does it say?

The first RFRA was a 1993 federal law that was signed into law by Democratic president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer, and sailed through the Senate on a 97-3 vote.

The law reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person's free exercise of religion to be "substantially burdened" by a law only if the law furthers a "compelling governmental interest" in the "least restrictive means of furthering that compelling governmental interest."

So the law doesn't say that a person making a religious claim will always win. In the years since RFRA has been on the books, sometimes the courts have ruled in favor of religious exemptions, but many other times they haven't.

If there's already a federal RFRA in place, why did Indiana pass its own RFRA?

Great question. In a 1997 Supreme Court case (City of Boerne v. Flores), the court held that federal RFRA was generally inapplicable against state and local laws. Since then, a number of states have enacted their own RFRA statutes: Indiana became the twentieth to do so. Other states have state court rulings that provide RFRA-like protections. Here's a helpful map from 2014 that shows you which states have RFRA protections (note that Mississippi and Indiana have passed RFRA since this map was made):

Screen%20Shot%202015-03-27%20at%2010.26.35%20AM.png

Is there any difference between Indiana's law and the federal law?

Nothing significant. Here's the text of the federal RFRA:

Government may substantially burden a person’s exercise of religion only if it 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.

And here is the text of Indiana's RFRA:

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.

Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)

Late last night just outside the Senate chamber, I asked Senator Chuck Schumer of New York (who sponsored federal RFRA in 1993) to comment on the story. "Not right now," he replied. Schumer still hasn't found time to respond to this question on Twitter:

So why are so many people saying that Indiana's law is an unprecedented attack on gay people?

We shouldn't hold Ashton Kutcher and Miley Cyrus entirely responsible for their ignorance. Their job, after all, is to make bad music and bad movies, not report the news. Bad journalism is to blame here. See this CNN headline that says the law "allows biz to reject gay customers," or this New York Times story that makes the same claim while ignoring the fact that many other states and the federal government have the same law on the books.

Indiana's RFRA does not grant a license to discriminate. First of all, the state of Indiana, like 28 other states, has never prohibited discrimination based on sexual orientation at public accommodations. Even without such laws in most states, discrimination doesn't commonly occur because the United States is a nation that is tolerant of gay people and intolerant of bigots. Mean-spirited actions by a business owner anywhere in the country would almost certainly be met with a major backlash.

It is true that several local ordinances in Indiana prohibit discrimination on the basis of sexual orientation, but RFRA does not declare that those ordinances are invalid if someone requests a religious exemption. Again, RFRA simply establishes the balancing test courts must apply in religious freedom cases.

As Stanford's Michael McConnell told me last year, RFRA laws haven't yet collided with public accommodation laws. But what if they do? "For the most part, I think the public accommodation laws are going to win out," McConnell said. "But I could imagine a circumstance where you have somebody renting out a bedroom in their house, and they have children they're trying to bring up in a particular way, and there would be some very specific conflict with their religion that I could imagine. If the couple could go anywhere and it's no real interference with their ability to find housing--these cases are just not all one way or the other. They depend powerfully on the particular circumstance."

That of course is a purely hypothetical case for now. In the real world, the debate concerning gay rights and religious freedom has focused on a handful of cases involving religious business owners who were penalized by the government for declining to decorate or photograph same-sex weddings. You could just as easily imagine a case in which a wedding singer declines to work a same-sex wedding ceremony because of religious objections. But a small number of conscientious objectors declining to participate commercially in same-sex weddings is quite different than the specter of Jim Crow for gay Americans--hotels and restaurants turning away gay people simply because they are gay.

The point of RFRA is not to discriminate against gay Americans. It is supposed to prevent the government from discriminating against religious Americans.

http://www.weeklystandard.com/blogs/indianas-religious-freedom-restoration-act-explained_900641.html?page=1

...I should stress–and this point was totally lost in the Indiana debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate....

http://joshblackman.com/blog/2015/03/26/comparing-the-federal-rfra-and-the-indiana-rfra/

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http://www.theatlant...fferent/388997/

Is the Indiana Law the same as in other states? Some research reveals there really is more to it than some would like to believe.

As for me, even as a Free Speecher and as a Christian man, if you want to subvert the statutes to discriminate and hide behind the law, well my business will walk right on past your door.

Of course the law is slightly different that the ones passed back in the 90s after Clinton's RFRA at the Federal Level...we have now had judges in states like New Mexico allow civil lawsuits to target people for exercising their rights under the RFRA in those states. Indiana's law simply makes explicit that the protections are not just from government compulsion.

I'm sure the business owners do not mind a bit if you decide to take your business elsewhere because they followed their conscience. That's your right to do so. Then again, they were never trying to abridge your rights though.

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Quietfan,

Wouldn't this law give a muslim as much right to discriminate against a Christian as it would give a Christian the right to discriminate against a homosexual?

Should Christians be as outraged as homosexuals?

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Quietfan,

Wouldn't this law give a muslim as much right to discriminate against a Christian as it would give a Christian the right to discriminate against a homosexual?

Should Christians be as outraged as homosexuals?

No. I respect the religious beliefs of all people, including Muslims. I don't agree with it but neither will I attempt to force them to violate those beliefs.
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http://www.theatlant...fferent/388997/

Is the Indiana Law the same as in other states? Some research reveals there really is more to it than some would like to believe.

As for me, even as a Free Speecher and as a Christian man, if you want to subvert the statutes to discriminate and hide behind the law, well my business will walk right on past your door.

Of course the law is slightly different that the ones passed back in the 90s after Clinton's RFRA at the Federal Level...we have now had judges in states like New Mexico allow civil lawsuits to target people for exercising their rights under the RFRA in those states. Indiana's law simply makes explicit that the protections are not just from government compulsion.

I'm sure the business owners do not mind a bit if you decide to take your business elsewhere because they followed their conscience. That's your right to do so. Then again, they were never trying to abridge your rights though.

I saw Scarborough this AM say that there was NO DIFFERENCE in the bills for a good 30 minutes. There is a difference. And that needs to be explained. I still think this a bunch of hyperventilating about it as some level. But i also know that the truth is there were differences.

QUESTION: If there is a 1993 Federal Law signed into existence by Clinton, then why do we need the state laws all?

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http://www.theatlant...fferent/388997/

Is the Indiana Law the same as in other states? Some research reveals there really is more to it than some would like to believe.

As for me, even as a Free Speecher and as a Christian man, if you want to subvert the statutes to discriminate and hide behind the law, well my business will walk right on past your door.

Of course the law is slightly different that the ones passed back in the 90s after Clinton's RFRA at the Federal Level...we have now had judges in states like New Mexico allow civil lawsuits to target people for exercising their rights under the RFRA in those states. Indiana's law simply makes explicit that the protections are not just from government compulsion.

I'm sure the business owners do not mind a bit if you decide to take your business elsewhere because they followed their conscience. That's your right to do so. Then again, they were never trying to abridge your rights though.

I saw Scarborough this AM say that there was NO DIFFERENCE in the bills for a good 30 minutes. There is a difference. And that needs to be explained. I still think this a bunch of hyperventilating about it as some level. But i also know that the truth is there were differences.

QUESTION: If there is a 1993 Federal Law signed into existence by Clinton, then why do we need the state laws all?

Some people didn't catch that one, rather mild, update from the 1993 version. But it's a needed one that doesn't change what the law actually does.

As to your question, from my earlier post:

If there's already a federal RFRA in place, why did Indiana pass its own RFRA?

Great question. In a 1997 Supreme Court case (City of Boerne v. Flores), the court held that federal RFRA was generally inapplicable against state and local laws. Since then, a number of states have enacted their own RFRA statutes: Indiana became the twentieth to do so. Other states have state court rulings that provide RFRA-like protections.

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What is often lost in this back and forth is that there are benefits to allowing private enterprise to act on bigotry as well. First, it allows other companies to spring forward and attempt to serve those groups being underserved by the larger firms, and carve out a niche they otherwise wouldn't have. Pepsi did this in the Jim Crow south to compete with Coke. If you're not familiar with that story, you ought to check it out. Second, it allows the consumer to know what kind of people they're doing business with. Any progressives here, if you found out one of your favorite restaurants actively discouraged Democrats from working or dining there, and donated heavily to GOP causes, would you not think about eating elsewhere? Isn't that information you might want to know before shelling out hundreds of your hard earned dollars over the years to that company?

That's one thing I fail to understand about the desire some have to force businesses to serve them, even if they don't want to and actively work against their interests. "this shop owner hates me and my way of life, and wants to refuse service to me because of how I was born. I think I'll force the government to allow me to make him richer, so he can keep doing it to more people." What's so bad about letting stupid people tell you they don't want your money, and would prefer to make their need to make a profit even harder than it already is, anyway?

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Just to get this out of the hyperventilating media and overheated rhetoric from special interest groups of what this law is and does, some more level-headed assessment from law professors, some of whom even support gay marriage:

Law professor: Why Indiana needs 'religious freedom' legislation

I am a supporter of gay rights, including same-sex marriage. But as an informed legal scholar, I also support the proposed Indiana Religious Freedom Restoration Act (RFRA). How can this be?

It's because — despite all the rhetoric — the bill has little to do with same-sex marriage and everything to do with religious freedom.

The bill would establish a general legal standard, the "compelling interest" test, for evaluating laws and governmental practices that impose substantial burdens on the exercise of religion. This same test already governs federal law under the federal RFRA, which was signed into law by President Bill Clinton. And some 30 states have adopted the same standard, either under state-law RFRAs or as a matter of state constitutional law.

Applying this test, a unanimous U.S. Supreme Court recently ruled that a Muslim prisoner was free to practice his faith by wearing a half-inch beard that posed no risk to prison security. Likewise, in a 2012 decision, a court ruled that the Pennsylvania RFRA protected the outreach ministry of a group of Philadelphia churches, ruling that the city could not bar them from feeding homeless individuals in the city parks.

If the Indiana RFRA is adopted, this same general approach will govern religious freedom claims of all sorts, thus protecting religious believers of all faiths by granting them precisely the same consideration.

But granting religious believers legal consideration does not mean that their religious objections will always be upheld. And this brings us to the issue of same-sex marriage.

Under the Indiana RFRA, those who provide creative services for weddings, such as photographers, florists or bakers, could claim that religious freedom protects them from local nondiscrimination laws. Like other religious objectors, they would have their day in court, as they should, permitting them to argue that the government is improperly requiring them to violate their religion by participating (in their view) in a celebration that their religion does not allow.

But courts generally have ruled that the government has a compelling interest in preventing discrimination and that this interest precludes the recognition of religious exceptions. Even in the narrow setting of wedding-service providers, claims for religious exemptions recently have been rejected in various states, including states that have adopted the RFRA test. A court could rule otherwise, protecting religious freedom in this distinctive context. But to date, none has.

In any event, most religious freedom claims have nothing to do with same-sex marriage or discrimination. The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a "license to discriminate," and it should not be mischaracterized or dismissed on that basis.

Daniel O. Conkle, professor, Indiana University Maurer School of Law

http://www.indystar....ation/24477303/

Indiana's Religious Freedom Restoration Act, Explained

John McCormack

March 27, 2015 2:10 PM

On Thursday, Indiana governor Mike Pence signed the Religious Freedom Restoration Act (RFRA) into law, and some celebrities, politicians, and journalists--including Miley Cyrus, Ashton Kutcher, and Hillary Clinton, just to name a few--are absolutely outraged. They say the law is a license to discriminate against gay people:

Meanwhile, activists are calling for a boycott. The CEO of SalesForce, a company that does business in China, is pulling out of Indiana. The NCAA has expressed concern about holding events there in the future. And the city of San Francisco is banning taxpayer-funded travel to the state.

Is the Religious Freedom Restoration Act really a license to discriminate against gay people?

No. Stanford law professor Michael McConnell, a former appellate court judge, tells THE WEEKLY STANDARD in an email: "In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else."

So what is the Religious Freedom Restoration Act, and what does it say?

The first RFRA was a 1993 federal law that was signed into law by Democratic president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer, and sailed through the Senate on a 97-3 vote.

The law reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person's free exercise of religion to be "substantially burdened" by a law only if the law furthers a "compelling governmental interest" in the "least restrictive means of furthering that compelling governmental interest."

So the law doesn't say that a person making a religious claim will always win. In the years since RFRA has been on the books, sometimes the courts have ruled in favor of religious exemptions, but many other times they haven't.

If there's already a federal RFRA in place, why did Indiana pass its own RFRA?

Great question. In a 1997 Supreme Court case (City of Boerne v. Flores), the court held that federal RFRA was generally inapplicable against state and local laws. Since then, a number of states have enacted their own RFRA statutes: Indiana became the twentieth to do so. Other states have state court rulings that provide RFRA-like protections. Here's a helpful map from 2014 that shows you which states have RFRA protections (note that Mississippi and Indiana have passed RFRA since this map was made):

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Is there any difference between Indiana's law and the federal law?

Nothing significant. Here's the text of the federal RFRA:

Government may substantially burden a person’s exercise of religion only if it 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.

And here is the text of Indiana's RFRA:

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.

Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)

Late last night just outside the Senate chamber, I asked Senator Chuck Schumer of New York (who sponsored federal RFRA in 1993) to comment on the story. "Not right now," he replied. Schumer still hasn't found time to respond to this question on Twitter:

So why are so many people saying that Indiana's law is an unprecedented attack on gay people?

We shouldn't hold Ashton Kutcher and Miley Cyrus entirely responsible for their ignorance. Their job, after all, is to make bad music and bad movies, not report the news. Bad journalism is to blame here. See this CNN headline that says the law "allows biz to reject gay customers," or this New York Times story that makes the same claim while ignoring the fact that many other states and the federal government have the same law on the books.

Indiana's RFRA does not grant a license to discriminate. First of all, the state of Indiana, like 28 other states, has never prohibited discrimination based on sexual orientation at public accommodations. Even without such laws in most states, discrimination doesn't commonly occur because the United States is a nation that is tolerant of gay people and intolerant of bigots. Mean-spirited actions by a business owner anywhere in the country would almost certainly be met with a major backlash.

It is true that several local ordinances in Indiana prohibit discrimination on the basis of sexual orientation, but RFRA does not declare that those ordinances are invalid if someone requests a religious exemption. Again, RFRA simply establishes the balancing test courts must apply in religious freedom cases.

As Stanford's Michael McConnell told me last year, RFRA laws haven't yet collided with public accommodation laws. But what if they do? "For the most part, I think the public accommodation laws are going to win out," McConnell said. "But I could imagine a circumstance where you have somebody renting out a bedroom in their house, and they have children they're trying to bring up in a particular way, and there would be some very specific conflict with their religion that I could imagine. If the couple could go anywhere and it's no real interference with their ability to find housing--these cases are just not all one way or the other. They depend powerfully on the particular circumstance."

That of course is a purely hypothetical case for now. In the real world, the debate concerning gay rights and religious freedom has focused on a handful of cases involving religious business owners who were penalized by the government for declining to decorate or photograph same-sex weddings. You could just as easily imagine a case in which a wedding singer declines to work a same-sex wedding ceremony because of religious objections. But a small number of conscientious objectors declining to participate commercially in same-sex weddings is quite different than the specter of Jim Crow for gay Americans--hotels and restaurants turning away gay people simply because they are gay.

The point of RFRA is not to discriminate against gay Americans. It is supposed to prevent the government from discriminating against religious Americans.

http://www.weeklysta...641.html?page=1

...I should stress–and this point was totally lost in the Indiana debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate....

http://joshblackman....e-indiana-rfra/

I'll admit I didn't study the above closely but is there a single case that can be cited of religious suppression that this law will rectify?

Seems to me like they bought themselves a lot of trouble for passing a law that has no practical consequences.

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There are multiple cases. We've discussed some of them. They revolve not around serving gay customers, but specificially using one's time, talents, artistic abilities and such in a same-sex marriage. A photographer in New Mexico was sued and fined for turning down an offer to shoot a wedding ceremony. A baker in Oregon and a florist in Washington were both sued and fined for the same reasons. All had served gay customers for years with no problem. Being asked to materially participate in the wedding ceremony in this way was just a step too far for them.

Indiana's law would protect that business owner from being compelled to do something that violated their conscience under threats of lawsuits or government fines or jail by requiring strict scrutiny on such situations. The government, to encroach on a person's religious conscience in this way, has to not only show a compelling government interest but has to use the least restrictive means of advancing that interest.

Given the current climate out there with people who have sincerely held religious beliefs on marriage and sexuality, I don't think it's an empty exercise at all.

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Interesting breakdown by Vox, along with a video that's really good. (Spoiler alert, it includes footage provided by Auburn of Tim Cook's speech to the NYC Auburn Club).

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