Tuesday, March 31, 2015

Indianapolis Star Story Accidentally Proves RFRA Law Doesn't Give License To Discriminate Against Gays

A former employee of the Gannett-owned newspaper once told me that a senior management employee told the newspaper's employees their job wasn't to simply report the news; it was to frame and shape the news. The lie that made its way several times around the world over the past week that Indiana had passed a law providing businesses a license to discriminate against gays became the truth regardless of the actual text of a law informed and formulated by decades of judicial opinions as a consequence of the way the Indianapolis Star chose to frame and shape the reporting of Indiana's RFRA law. If you read an online story on the Star's website today, "How Indiana's RFRA differs from federal version," the newspaper accidentally reveals the true meaning of the law, not the false, hysterical description opponents of the law have used to brand anyone associated with its passage as a bigot, with whom most of the media have blindly sided in this pathetic debate.

To be sure, as the story's analysis reveals, there are differences in the text included in the federal RFRA law signed by President Bill Clinton in 1993 and the state law Gov. Mike Pence signed into law last week. None of those changes, however, support the opponents' argument that the law gives a license to Indiana businesses to discriminate against gays, even with the gratuitous comments thrown into the story made by opponents of the law. Sen. Chuck Schumer (D-NY), who coauthored the federal law describes the differences as "significant, legal differences," and that Indiana's law "in no way resembles the intent or application of the federal RFRA." His words were polite compared to former Indiana Supreme Court Justice Frank Sullivan, Jr., who described RFRA as "code for we need to deny gay and lesbians the civil rights they are asserting." Sullivan told the Star this "is obvious because the same people — including lawmakers and lobbyists — who were pushing for the failed constitutional ban on same-sex marriage are now behind the RFRA law." Don't you just love it when a supposedly respected judge paints with such a broad brush?

So what are these "significant, legal differences" between the federal and state law? The first difference raised by opponents centers on the inclusion of for profit corporations in the state law's definition of covered persons. The federal RFRA law failed to provide a definition of the "persons" allowed to assert a religious liberty right as a defense to action compelled by a law, but the Supreme Court in the Hobby Lobby case relied upon the definition provided in the Dictionary Act for the U.S. Code, which includes in the definition of a person "corporations, companies, associations, firms, partnerships, societies and joint stock companies." The opponents rely upon this supposed expanded definition to argue it broadens the idea of who has the right to religious liberty. The opponents' argument fails because nobody can argue with a straight face that covered persons under Indiana law is broader than the federal law.

The second point on which the opponents argue the state law is written more broadly than the federal law is the inclusion of religious liberty claims that include not only those cases where a person's religious freedom has been burdened but also when it is likely to be substantially burdened by government action. The opponents claim this has the effect of expanding the type of claims covered persons can assert under the law. That argument similarly fails because the proponents point out that federal courts have interpreted RFRA to read "likely" into the statute so that one doesn't have to be already injured before asserting a claim. As the proponents point out, it's the difference in whether the relief being claimed is compensation for an injury already suffered or an injunction to prevent a violation. In other words, there's no real difference between the federal law as applied by the courts and the Indiana law as written.

The final major point on which the opponents claim Indiana's law differs from the federal law is that it allows a party in a judicial or administrative proceeding between two private parties to assert a religious freedom defense under the act. The opponents suggest this makes it easier for businesses sued by persons discriminated against because of their sexual orientation to raise their religious beliefs as a defense to their discriminatory actions. In the years following the passage of the federal law, it has been interpreted in four judicial circuits covering half of the states to allow cases between private parties as well as those cases brought by the government to invoke RFRA if the burden is imposed by the law relied upon to assert discrimination occurred. So the Indiana law incorporates the prevailing rule applied in at least half of the states already. As the proponents point out, in virtually every case where discrimination based on sexual orientation was the basis of the underlying claim in cases between private parties, judges have ruled the government had a compelling interest in enacting the underlying nondiscrimination law to overcome the defense raised under RFRA. So again, this is another red herring where the opponents want you to believe that administrative bodies and judges in red states will rule against gays because that's just the kind of people they are.

"Is Indiana's Religious Freedom Restoration Act the same as the federal version that became law two decades ago," the Star reporters asked in the opening sentence of their story today. "Not quite," they answered. They continued, "Indiana's RFRA is similar, but not identical. And there's debate about how much those differences matter." Now that you know the differences between the federal and state law, would you agree that those differences are a distinction without any real differences?


Pete Boggs said...

Declining circulation, due to defective content & toxic editorials; it's now the Indianapolis Scar.

Pointman said...

What the law says and what it actually does is not relevant. Only the hysteria and smearing of Christians, Pence, Indiana, Republicans is important. Facts be damned.