“The Anarchy Of ‘Religious Liberty'”: We Reserve The Right To Refuse Service To Anyone Not Like Us
It’s a good thing Americans have no serious problems, because the time and energy we expend fighting over symbolic issues could become a problem. Sure, symbols can be important. The swastika is a symbol, also the U.S. flag. But this week’s farcical casus belli involves a couple of spectacularly ill-conceived “religious freedom” statutes in Indiana and Arkansas.
As originally written, these laws would give every private business in both states — every butcher, baker, and wedding cake maker — powers and privileges equivalent to the Pope of Rome. But is that what their authors actually intended? Moreover, even if the laws stand, which looks unlikely at this writing, would anything important really change in actual practice?
As a longtime Arkansas resident, I very much doubt it. Political posturing aside, person to person, are people here really so self-righteous and mean-spirited as to treat their LGBT neighbors like lepers? Or, more to the point, like blacks in the bad old days before the civil rights revolution of the 1960s? Would we revert to open discrimination in broad daylight?
No, no, and no. Those days are gone forever. Nobody really wants them back. What’s happened here is that the Chicken Little right has worked itself into yet another existential panic over the U.S. Supreme Court’s expected ruling legalizing gay marriage, badly overplayed its hand, and set itself up for yet another humiliating defeat.
Anyway, here’s what I meant about the Pope of Rome. A while back, I got myself into hot water with old friends by failing to express indignation about a Catholic girls’ school in Little Rock firing a lesbian teacher who announced her marriage to her longtime companion.
My view was simple: as a lifelong Catholic, the teacher knew the Church’s position, and she ought to have known what would happen. It’s an authoritarian institution, the Holy Roman Catholic and Apostolic Church. By all accounts a terrific teacher — she landed another job immediately — the newlywed had somehow persuaded herself that as her homosexuality had long been an open secret, openly defying Church doctrine wouldn’t be a problem.
Wrong.
Now, you’d think the Catholic Church’s own appalling failures would have rendered it mute on questions of sexual morality for, oh, a century or so. But that’s not how they see it. When and if the doctrine changes, it won’t start in the Mount Saint Mary’s Academy faculty lounge. Damn shame, but there it is.
Was I being smug because I’ve never faced such difficult choices? Could be. But here’s the thing: No American has to be a Roman Catholic; it’s strictly voluntary.
But the United States isn’t supposed to be an authoritarian country. And that’s precisely what’s so potentially insidious about both the Indiana and Arkansas statutes as written, and why they cannot be permitted to stand. Under the guise of “religious liberty” they would give zealous individuals and private businesses near-dictatorial powers with no legal recourse.
Under Arkansas HB1228, aka the “Conscience Protection Act,” it’s every person his own religious dogma — “person” being broadly defined as any “association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity.”
Dogma would trump civil rights at every turn. What it could mean in practice is that if your landlord’s God objected to your being gay, he could evict you. Should your employer’s religious scruples cause him to object to your marrying another woman, he could fire you.
And there wouldn’t be a thing you could do about it.
Advertised as preventing “government” from forcing conscience-stricken wedding photographers to document Bob and Bill’s nuptials, the Arkansas law would also make it nearly impossible for private citizens to file lawsuits against “persons” professing religious motives.
“Persons,” remember, including corporations, estates and trusts. You could end up losing your job because some dead person’s will stipulated “no faggots.” Or no Muslims, Catholics, or redheads, I suppose.
But what such laws really threaten isn’t so much tyranny, University of Arkansas-Little Rock law professor John DiPippa points out, as anarchy. “With HB 1228,” he writes “county clerks could seek exemptions from issuing marriage licenses for same-sex couples, or for interracial couples, or divorced couples. Teachers could refuse to teach the required curriculum.”
All this because certain literal-minded religionists can’t get it through their heads that marriage can be two things: both a legal contract between consenting adults, and a religious ceremony. If your church chooses not to sanction certain kinds of marriages, nobody says it must. But as a legal matter, other people’s intimate arrangements are really none of your business.
Why is that so hard to understand?
So no, these laws are not going to stand as written. Hardly anybody wants to go back to the 1950s. When Apple, the NCAA, Angie’s List, Walmart, and Charles Barkley are all lined up on the same side of a political controversy, that side is going to win.
By: Gene Lyons, The National Memo, April 1, 2015
“Notably Absent From This Debate”: Why Won’t Rand Paul And Chris Christie Take A Position On Indiana’s “Religious Freedom” Law?
Nearly a week since Indiana Governor Mike Pence signed the Religious Freedom Restoration Act (RFRA), igniting a nationwide debate about whether the controversial law invites discrimination based on sexual orientation, most potential Republican presidential candidates have taken the opportunity to bolster their conservative credentials.
“Governor Pence has done the right thing,” said former Florida Governor Jeb Bush on Monday.
“I want to commend Governor Mike Pence for his support of religious freedom, especially in the face of fierce opposition,” Texas Senator Ted Cruz said in a written statement. “Governor Pence is holding the line to protect religious liberty in the Hoosier State. Indiana is giving voice to millions of courageous conservatives across this country who are deeply concerned about the ongoing attacks upon our personal liberties. I’m proud to stand with Mike, and I urge Americans to do the same.”
Ben Carson, former Arkansas Governor Mike Huckabee, Florida Senator Marco Rubio, Wisconsin Governor Scott Walker, Louisiana Governor Bobby Jindal, former Pennsylvania Senator Rick Santorum, former Hewlett-Packard CEO Carly Fiorina, and former Texas Governor Rick Perry all expressed their support for Pence and Indiana’s RFRA law. (Meanwhile, Democrats Hillary Clinton and Martin O’Malley have come out against it.)
But two likely 2016 candidates have been notably absent from this debate: New Jersey Governor Chris Christie and Kentucky Senator Rand Paul. What do they think about the law, and why have they been so quiet on the issue?
Samantha Smith, the communications director for Christie’s Leadership Matters for America PAC, did not return a request for comment on Wednesday morning. (I’ll update this if I hear back.) Christie’s past statements offer little light on where he will fall on the issue, but he has been shifting to the right on social issues in advance of the Republican primary. On Tuesday, he announced his support for a 20-week abortion ban. Given Christie’s shaky position within the party, and the fact that the rest of the field supports Indiana’s law, it would be very surprising if he joined with liberals in opposing it.
As for Paul, Sergio Gor, the communications director of RandPAC, wrote in an email, “The Senator is out of pocket with family this week and has not weighed in at this time.”
It makes sense that Paul is unplugging with his family this week: He’s expected to announce his presidential bid on April 7, the beginning of a long, grueling journey—and a victory would mean that these are his last moments of real privacy for a very long time. Could anyone blame him if he wanted to spend a few quiet days with his family? I couldn’t.
But it also seems a bit convenient that Paul is entirely unreachable while the controversy swirls. If his campaign launch is just six days away, surely Paul and his staff are in close communication. How long does it take to send a tweet or tell your staff to craft a statement?
It will be interesting to see how Paul reacts to the law—as he’ll be forced to do, probably no later than April 7—in light of his libertarian credentials. If he stuck true to them, not only would he support the law but also support the right of Indiana’s businesses to discriminate against LGBT people, something that the rest of the Republican field opposes. (They just disagree with liberals about whether Indiana’s law would allow discrimination.)
But if recent history is any guide, don’t expect Paul to stick true to his libertarian roots. Almost whenever he has faced a choice between traditional libertarian positions and mainstream Republican positions, he has chosen the latter in hope of winning the GOP nomination. Just recently, for instance, he called for more defense spending after saying for years that the military was bloated and needed further cuts.
In fact, Paul has already reversed himself on whether private businesses should be allowed to exclude people from their establishments for any reason. “I think it’s a bad business decision to exclude anybody from your restaurant,” he told the Louisville Courier-Journal in 2010. “But, at the same time, I do believe in private ownership.” He continued, “In a free society, we will tolerate boorish people, who have abhorrent behavior, but if we’re civilized people, we publicly criticize that, and don’t belong to those groups, or don’t associate with those people.” Just a few years later, as that position became controversial, Paul (dishonestly) said that he never held the libertarian position to begin with.
So while it is taking a while for Paul to give his position, it isn’t hard to deduce where he’ll eventually fall. Maybe he’s just waiting until the spotlight on Indiana dies down a bit, so that his libertarian supporters are less aware when he adopts the party line. But if that’s his plan, it’s not very presidential.
By: Danny Vinik, The New Republic, April 1, 2015
“Indiana And Federal Statutes Not Wholly Identical”: Three Factors That Make Indiana’s Religion Law Different From Other States’
The Indiana statute is the culmination of a long, murky legal history that reaches back to the 1990 Supreme Court case Employment Division v. Smith, which significantly changed the standard interpretation of the First Amendment’s free exercise clause. At issue was whether a Native American group could use peyote in religious rituals in violation of an Oregon law. The court ruled that it could not — because the state law was “neutral,” in that it was not motivated by a desire to curtail religious rights, and because it applied to everyone in the state.
Legal precedent prior to 1990 dictated that the government could substantially burden a person’s practice of his or her religion only if its action was necessary to achieve a compelling government purpose. But in Smith, the court established that the free exercise clause could not be used to challenge a neutral law of general applicability no matter how much the law burdened religion.
So, before Smith, a priest in a dry county who wanted to use wine in communion surely would have prevailed in court. After Smith, he would have lost because the law prohibiting consumption of alcohol was a neutral law of general applicability.
In 1993, Congress, with strong bipartisan support, passed and President Clinton signed the federal Religious Freedom Restoration Act. Its stated goal was to restore religious freedom by statute to what it previously had been under the Constitution. The law provides that whenever the government substantially burdens religion, even with a neutral law of general applicability, its action is illegal unless proven to be necessary to achieve a compelling government interest.
The next development came in 1997, when the Supreme Court declared the act unconstitutional as applied to state and local governments because it exceeded the scope of Congress’ power. But the law remained constitutional as applied to the federal government, and was the basis for the court’s decision last June in Burwell v. Hobby Lobby. In that case, the court held, 5 to 4, that it violated the Religious Freedom Restoration Act to require a closely held corporation to provide contraceptive coverage if that contradicted its owners’ religious beliefs.
The new Indiana law has the same title and contains the same language as the federal statute. Like the federal law, the Indiana version provides: “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.”
But the Indiana and federal statutes are not wholly identical. The Indiana law, unlike the federal RFRA, builds on Hobby Lobby by expressly providing protection to corporations and other business entities. That’s one reason to worry that the purpose of the Indiana law is to allow discrimination against same-sex couples based on business owners’ religious beliefs.
Another reason for concern is timing. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith and 22 years after the enactment of the federal statute? There is a widespread consensus across the political spectrum that the Supreme Court is about to recognize a right to marriage equality for gays and lesbians and hold that state laws prohibiting same-sex marriage violate the Constitution. This law appears to be a reaction to that development.
The rhetoric surrounding the Indiana law is also troubling. In fact, over and over in his interviews, Pence has refused to deny that the law would permit discrimination. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”
This is why there are loud protests against the Indiana law and calls for boycotts of the state. But Indiana could easily solve this controversy by amending the law to provide that no one can discriminate against others based on sexual orientation, sex or race under the statute or on the grounds of religious beliefs.
By: Erwin Chemerinsky, Dean of the University of California, Irvine School of Law, The Los Angeles Times; The National Memo, April 1, 2015
“Imagine Cruz As President”: You Can’t Stand In A Hog Wallow Without Getting Stink All Over You
And away we go — off on another crazy cruze with Ted!
Cinch up your seatbelts, for Senator Ted Cruz (fueled by his raw ambition and flaming jet-powered ego) has come screeching out of the GOP’s presidential staging area, getting a head start on all the other wannabes seeking the 2016 Republican presidential nomination. And what a crazy start Ted made, launching his campaign from Liberty University. Liberty U is the creation of the late Rev. Jerry Falwell, the self-promoting Christian theocrat, bigot, liar, and buffoonish pretender to be God’s chosen agent on Earth. Cruz hopes that launching there will make him “God’s candidate” — the chosen one of far-right Christian extremists who dominate the vote in the early Republican contests.
But, good Lord — Falwell? The vast majority of Americans remember him as an unholy fool, a non-stop spewer of hate. “I listen to feminists and all these radical gals,” he said. “These women just need a man in the house. That’s all they need. A man to tell them what time of day it is.” And who can forget this piece of vicious sermonizing: “AIDS is the wrath of a just God against homosexuals”? Likewise, the pompous preacher said 9/11 was “what we deserve,” claiming it was God’s punishment for feminism, gays, the ACLU and other evils. His knowledge of African-Americans was equally insightful: “The true Negro does not want integration,” he explained.
Also, in Jerry’s world: “There is no separation of church and state”; “all public schools will be closed and taken over by churches,” and “Christians will be running them”; and the Bible is “absolutely infallible,” even “in areas such as geography, science, history, etc.”
You can’t stand in a hog wallow without getting stink all over you. Yet, Crazy Ted Cruz deliberately chose to stand in Falwell’s political wallow, which leaves him reeking with the stench of Falwell’s nastiness and know-nothingism. Is Cruz running to be president of the USA — or of Liberty University?
Ted’s announcement of his presidential candidacy was a real Cruz-a-palooza! It was part Ronald Reagan, part Elmer Gantry, part John Lennon and, of course, part Jerry Falwell — yet it was totally Ted Cruz — full of blather, bloat and BS.
Not only was it staged at Liberty U but Cruz thumped the word “liberty” again and again, like a televangelist thumping the Bible. “We stand together for liberty,” the candidate declared one final time at the conclusion of the show. That was more than a little cynical. While the mass media reported that Cruz drew a packed house of 10,000 Liberty students, few news stories mentioned a pertinent fact about the crowd — the budding scholars were not at… liberty to avoid his speech, for school officials made attendance mandatory.
Another word reprised throughout the campaign event was “imagine” — used 38 times by Cruz in a sort of dreamy imitation of the John Lennon song. “Imagine health care reform that keeps government out of the way,” warbled the senator, whose family has received free, platinum-level coverage from Goldman Sachs, where his wife was a top executive. But she has now taken a leave from the Wall Street giant to join Ted’s anti-government crusade, so suddenly they had no health coverage. No problem for a hypocrite like Cruz, though — only a day after the big speech, he said he plans to sign up for Obamacare, the very program he demonized and pledged to kill.
But it was in the speech’s finale that Ted reached his crescendo of cynicism: “It is a time for truth,” he bellowed. Truth? This is a guy who fabricates facts to foment fear among the fringiest of the farthermost fringe of the right wingers. The good news is that the more he campaigns, the more obvious it will be that can’t even imagine truth. And like Falwell, he will be another fool for the history books.
By: Jim Hightower, The National Memo, April 1, 2015
“Faith Ought Not Pine For The Old Days”: Thankfully, Faith Of Force And Exclusion Is Not The Only Faith There Is
“Yesterday, all my troubles seemed so far away.” — The Beatles
“Yesterday’s gone, yesterday’s gone.” — Fleetwood Mac
On Sunday, people all over the world will commemorate the morning an itinerant rabbi, falsely convicted and cruelly executed, stood up and walked out of his own tomb. It is the foundation act for the world’s largest faith, a touchstone of hope for over 2 billion people.
But that faith has, in turn, been a source of ongoing friction between those adherents who feel it compels them to redeem tomorrow and those who feel it obligates them to restore yesterday. Last week, the latter made headlines — again.
In Arizona, a state senator suggested a law making church mandatory as a way of arresting what she sees as America’s moral decline. When controversy erupted, Sylvia Allen said she couldn’t understand what the fuss was about.
In Indiana, meantime, the governor signed a law protecting businesses from anything that might infringe upon their “free exercise of religion.” In other words, it protects their right to discriminate against gay people. When controversy erupted, Governor Mike Pence claimed this interpretation of the “Religious Freedom Restoration Act” misreads its intent.
The senator’s ignorance and the governor’s disingenuousness offer stark illustration of what too often these days masquerades as faith.
Allen, like the Taliban before her, seems to believe faith is something you can coerce. Unfortunately for her, that’s expressly forbidden in the first words of the First Amendment to the Constitution that her oath of office requires her to support. She might want to read it sometime.
As to Pence, his claim that the law is being misread is undercut by the fact that it is being celebrated by anti-gay lobbyists. He has contended the RFRA is as innocuous as similar laws passed by other states and the federal government, a claim sharply disputed by law professor Garrett Epps, writing online for The Atlantic, who notes there is language unique to Indiana’s law that seems designed to let businesses refuse service to gay people.
But the most damning witness against Pence has been Pence himself. Five times last Sunday, ABC’s George Stephanopoulos asked him a simple yes or no question: Does the law permit discrimination against gay people? Five times, he refused to answer. By Tuesday, Pence was promising to “fix” the miserable thing. Stay tuned to see what that will mean.
Taken together, Allen and Pence exemplify a “faith” that has become all too common, a U-turn faith that seeks to return America to a mythic yesterday. Pence’s law would effectively allow businesses to give gay people the kind of mistreatment that was common 40 years ago, while Allen explicitly says she wants to go back to the way things were when she was a child. For the record: Allen turns 68 this week, according to Wikipedia.
And so it goes with this faith of force and exclusion. Thank God it’s not the only faith there is. Indeed, in the same week Allen and Pence were making fools of themselves, a pastor in Miami was pushing for socially conscious redevelopment of a blighted inner-city community, a church in Los Angeles was hosting a panel on police-involved shootings, and a preacher near Washington was recruiting men to mow lawns, clean up trash-strewn lots and mentor troubled boys.
This is the faith of sacrifice and service. Unlike the faith of force and exclusion, it gets no headlines, generates no heat. It just is.
But one is thankful it is. One is glad for its example and reminder.
This week, Christians mark the long ago dawn when the Son rose. But if that faith means anything, it means the ability and imperative to face what is without fear. So faith ought not pine for the old days.
After all, dawn is the breaking of the new.
By: Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, April 1, 2015
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