Gene Spafford · @TheRealSpaf
29th Mar 2015 from TwitLonger
Understanding the Religious Freedom law in IN
My friend Karla Cotter posted this elsewhere — a very important explaination by Tony Dowell:
"I have seen many posts about the new Indiana “religious freedom” law. Many of the posts repeat the Republican and Fox News talking points that I should “READ THE LAW” because the 'Indiana law is the same as a federal religious freedom law signed by President Clinton in 1993, and the same as the law in 19 other states.'
Well, I did read the law, and these statements are false. The Indiana law goes much further than the federal law or the law of any other state, and effectively legalizes discrimination against homosexuals [and others —spaf] by private individuals and businesses. Make no mistake--this is a dangerous and hateful new law, passed by Republican legislators and signed by a Republican governor, that uniquely designates Indiana as a backward and intolerant state, and one that the rest of the nation will rightfully scorn and boycott.
The federal religious freedom law, 42 U.S.C. § 2000bb, provides that the GOVERNMENT may not “substantially burden a person’s exercise of religion” except “in furtherance of a compelling governmental interest.” Many states have similar laws with the same wording. Illinois, for example, has a statute, 775 ILCS 35, that prohibits the state from substantially burdening the free exercise of religion absent a compelling state interest.
These laws prevent the GOVERNMENT from enacting laws that interfere with people’s religious beliefs and practices. Now, it’s not like any state is dreaming up laws to abolish Christmas, or make Catholics eat meat on Fridays, or prohibit dressing up and singing or whatever else they do on Sunday mornings when I am at a football camp or attending St. Mattress. The only time these “religious freedom” laws are even discussed is in relation to rather dubious, alleged “religious” practices, like smoking peyote (Oregon v. Smith) or denying contraceptive coverage to employees (Burwell v. Hobby Lobby).
The Indiana law includes these provisions prohibiting the state from substantially burdening the exercise of religion absent a compelling governmental interest, but it also includes this provision:
“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 proceedings, REGARDLESS OF WHETHER THE STATE OR ANY OTHER GOVERNMENTAL ENTITY IS A PARTY TO THE PROCEEDING.”
As the new law makes clear, the state does not have to be involved for a “person” to invoke their “exercise of religion” as a defense in a judicial proceeding. This is the critical distinction between the hateful Indiana law and the more benign federal law and the law of other states.
Now, in Indiana, a business owner can refuse service to a gay customer, or fire an employee for being gay, without fear of any legal consequences. [Or another minority, or religion, or… —spaf] If sued for discrimination, the bigoted business owner can invoke his religious beliefs as a defense, and even collect his attorney fees when he wins. The Indiana law applies to PRIVATE discriminatory actions, not just the action of the government.
Notably, under the Indiana law, the bigot’s discriminatory “beliefs” do not have to widely held or a generally accepted religious practice to be protected as an “exercise of religion.” The law states that “’exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Thus, all the bigot needs to say is that his personal God or whoever compels him to hate homosexuals to justify and defend otherwise actionable discrimination.
So, to my friends telling me to READ THE LAW, I have read the law. What are you reading that leads you to a different conclusion? "
I welcome reasoned follow-on and responses by anyone who actually has read the laws.