“We Don’t Want You”: Indiana ‘Religious Freedom’ Bill Lets Businesses, Individuals Decide Who Gets Equal Treatment
Indiana’s state motto is “The Crossroads of America.” This week, two important roads in American politics and jurisprudence are crossing in Indiana.
One of those roads is the ongoing quest to give real protection to the rights and liberties of racial and religious minorities, women and gay people.
The other path, a reactionary one, wants to vastly expand one particular American right, the free expression of religion, to allow businesses and individuals to pick and choose who they think deserves equal treatment.
Indiana’s House and Senate have passed an Orwellian-named “religious freedom” law that Republican Governor Mike Pence said he would sign [Ed. note: Pence signed the bill into law on Thursday morning]. The bill protects businesses and individuals from having to do things — and to obey laws — that would be a “substantial burden” on their religious freedom.
Gay marriage is the most visible and politicized arena where this rights conflict is being fought. Some businesses and individuals say it would violate their religious freedom if they had to, say, provide flowers, pastries or appetizers to a gay wedding. Indiana’s new law agrees and would protect them.
This is a radical new understanding of the right of religious expression that would trump the civil rights of others.
The Indiana law is the wholly predictable and unfortunate consequence of the Supreme Court’s decision in Hobby Lobby v. Burwell last summer. In that famous case, the Supreme Court said that by forcing Hobby Lobby to provide its employees with health insurance that covered some forms of contraception, the Affordable Care Act violated the company’s religious rights.
One odd facet of the decision is that for-profit companies have the same religious rights as individuals, something common sense has a very hard time with.
More importantly, the court majority in Hobby Lobby said religious freedom no longer only meant protecting how one worships in private and in church, but also means protection from any compromise of beliefs that may come up in the public world of business and everyday life. “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs,” Justice Ruth Bader Ginsburg said in her dissent.
Dissenters correctly predicted that the decision would set the table for a continuing course of new litigation, new laws and new ways to justify old discrimination. That is exactly what is happening.
If it is legal for a company to refuse to cover contraception in its insurance plan, couldn’t a Christian Scientist company refuse to provide health insurance at all? If it’s okay to refuse catering services at a gay wedding, what about at an interracial marriage? They violate some religious beliefs, too. What if a corner store owned by Muslims didn’t want to serve Jews, or vice versa?
It isn’t hard to make this a long list. Indiana is on the verge of sanctioning and empowering this very un-American mutation of a fundamental American principle.
Earlier this week, Senator Ted Cruz launched his presidential campaign at a convocation service at a Christian fundamentalist university. What a powerful message that sends to Americans who aren’t Christian — Jews, Buddhists, Muslims, atheists and, the biggest category of all, “none of the above.” The message is simply: We don’t want you.
Indiana is at a crossroads and is about to send that very same message, enshrined in a law.
By: Dick Meyer, Chief Washington Correspondent for the Scripps Washington Bureau and DecodeDC; The National Memo, March 27, 2015
“Almost Anything Passes For ‘Religion’ In This Country”: Religious Freedom? Nope, Just Plain Old Discrimination
Religious conservatives have lost their battle over gay marriage. Most will even admit it. The clock is ticking down to April 28, when the U.S. Supreme Court will hear arguments for and against it—and by the end of June, they will have ruled on the right of every American to a civil marriage to the person of their choosing, regardless of gender. Although a “no gay marriage” ruling is possible, almost no one believes the Supreme Court will rule against the civil right to marriage.
Majority support for gay marriage is to be found in virtually every demographic in society. But the minority who still opposes it does so with vigor and conviction. The Roman Catholic hierarchy (not the people in the pews) and conservative Evangelicals continue to look for ways to express their disdain and condemnation for gay or lesbian couples who want to be married or who have been married. The new strategy is to do state-by-state what has been impossible nationally. With the help of ALEC (the conservative American Legislative Exchange Council), bills are popping up all over the country in state legislatures with what conservatives hope will be their effective (and legal) defense against the rising tide of acceptance of gay, lesbian, bisexual, and transgender (LGBT) people.
Indiana is a good case in point. On Monday, the Indiana House of Representatives passed a bill that would exempt individuals and companies from non-discrimination rulings by the courts—based on their religious beliefs. A similar bill was passed earlier by the Indiana Senate, and once the two are reconciled, Republican Governor Mike Pence has indicated he will sign it. This legislation, like its sister bills in other state legislatures, is based on the Religious Freedom Restoration Act (RFRA) bill passed by the U.S. Congress in 1993. Many states have their own RFRAs, which, like the federal one, prevent any law which substantially burdens a person’s free expression of religion. (This legislation figured heavily into the Hobby Lobby case.)
If this legislation becomes law, anyone who disagrees with any non-discrimination legislation or court rulings would be allowed, based on their religious beliefs, to disregard the provisions of that non-discrimination protection.
The multiple ways in which such legislation is problematic are stunning. First, this would open the floodgates for citizens/corporations to exempt themselves from all kinds of laws, merely by claiming that it violates their religious beliefs. Now, we are presumably not just talking about your common, everyday, vanilla, mainstream religions (think Methodists, Presbyterians, Unitarians, Reform and Conservative Jews). Such a law would, presumably, also protect members of the Westboro Baptist Church with its “God hates Fags” approach; the crazy, renegade Mormon man and his 25 wives; Satan worshippers; and Scientologists. Almost anything passes for “religion” in this country, and there would be no end to the appeals for exemption following certain laws based on the tenets of one’s religion, no matter how small and no matter how outside the mainstream that religion.
However, religionists don’t have to be crazy or on the fringes of society to wreak havoc on those they disdain. In debating the bill, Representative Bruce Borders (R-Jasonville) cited an anesthesiologist who refused to anesthetize a patient because the procedure for which his services were needed was an abortion—all due to his religious beliefs about the sinfulness of that procedure. A Roman Catholic pharmacist could refuse to fill a prescription for physician-prescribed birth control, citing her church’s objection to any kind of artificial birth control. A Southern Baptist pharmacist could refuse to fill a prescription for Truvada, the Pre-Exposure Prophylaxis (PrEP) drug used by gay men (and others) to lessen their risk for being infected with HIV, claiming his church condemns the “gay lifestyle,” by which he means, apparently, promiscuous and profligate sex.
It is difficult for me to understand how this is not akin to the fervently held religious beliefs that the races should not “mix” in marriage, and the anti-miscegenation laws that emanated from those beliefs. Of course, in 1967 the U.S. Supreme Court struck down those laws as unconstitutional in Loving v. Virginia. How is this any different from a 1960s lunch counter owner denying service to African Americans because of his religious beliefs (widely held at the time) that “Negroes” were lesser human beings and citizens than white folks?
Taken to their logical and extreme conclusion, such laws could allow someone to ask to be exempted from meeting the requirements of the Americans with Disabilities Act, if that person’s religion believed (as in much of the Old Testament) that physical infirmities were the result of the afflicted person’s sin (or that of his parents), and “my religion condemns sin rather than cooperating with it.”
But these debates and legislation are not fueled by the religious adherent’s condemnation of sin. Chances are, the florist who refuses to provide flowers for a gay wedding does not deny service to a bride who is on her second or third marriage. Jesus is silent about gay marriage, but roundly and emphatically condemns remarriage after divorce. The photographer who refuses to take pictures for a lesbian marriage (because it is against God’s will) should also decline to photograph a lavish and ostentatiously expensive wedding (Jesus talks a lot about the sinful nature of greed). If this were seriously about not serving sinful people, then obese people would be turned away from fast-food outlets as obviously living the sinful “lifestyle” of a glutton. If this were really about condemning sin, then service would be denied to all sinners, not just a particular sin among a particular, targeted group.
Make no mistake: These legislative bills, like the one about to become law in Indiana, are about exempting some people from having to comply with non-discrimination laws already in place for LGBT people, as well as pre-empting and forestalling any efforts to put such protections in place. This is old-fashioned discrimination all dressed up in ecclesiastical vestments and “religious freedom” language. But it is still discrimination, pure and simple, against a targeted group of fellow citizens. No amount of cloaking such legislation in the garb of “freedom of religion” is going to turn this sow’s ear into a silk purse.
By: The Rt. Rev. V. Gene Robinson, Senior Fellow at the Center for American Progress; The Daily Beast, March 25, 2015
“Those Bad Things Are Gone Now”: How The Supreme Court Is About To Explode America’s Racial Wealth Gap
When discussing race, the conservative argument is best expressed by the famous words of Chief Justice John Roberts: “The best way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Translation: America has done bad things in its history, but those bad things are gone now, so we should move past those horrors and look forward.
Conservatives believe that if blacks and Latinos simply work hard, get a good education and earn a good income, historical racial wealth gaps will disappear. The problem is that this sentiment ignores the ways that race continues to affect Americans today. A new report from Demos and Brandeis University, “The Racial Wealth Gap: Why Policy Matters,” makes this point strongly. The report shows that focusing on education alone will do little to reduce racial wealth gaps for households at the median, and that the Supreme Court, through upcoming decisions, could soon make the wealth gap explode.
Wealth is the whole of an individual’s accumulated assets, not the amount of money they make each year. As such, in his recent book, “The Son Also Rises,” Gregory Clark finds that the residual benefits of wealth remain for 10 to 15 generations. To understand why that matters, consider the fact that Loretta Lynch, Obama’s recent nomination for U.S. attorney general, is the great-great-granddaughter of a slave who escaped to freedom. (That’s four generations). Consider also that most people on Social Security today went to segregated schools. (That’s two generations.) If Clark is correct in his thesis, then the impacts of wealth built on the foundations of American slavery and segregation will continue to affect Lynch’s great-great-great grandchildren.
It is therefore unsurprising that addressing just one aspect of this disparity cannot solve racial wealth gaps. Demos/Brandeis find that equalizing graduation rates would reduce the wealth gap between blacks and whites by 1 percent, and between Latinos and whites by 3 percent at the median. Equalizing the distribution of income would only reduce the wealth gap by 11 percent for blacks and 9 percent for Latinos. Part of the durability of wealth gaps is the disproportionate benefits that whites still enjoy: They face less job market discrimination and are more likely to reap a big inheritance, for example. This means that the returns to education and income are generally higher for whites. But even after controlling for these returns, income and education can’t explain the entire wealth gap.
Because America’s primary vehicle for wealth accumulation is our homes, much of the explanation of the racial wealth gap lies in unequal homeownership rates. According to the Brandeis/Demos analysis, equalizing homeownership would reduce the racial wealth gap by 31 percent for blacks and 28 percent for Latinos. This effect is muted because centuries of discrimination—including racial exclusion from neighborhoods where home values appreciate, redlining, and discriminatory lending practices—mean that people of color are segregated into relatively poor neighborhoods. Indeed, in 1969, civil rights activist John Lewis bought a three-bedroom house for $35,000 in Venetian Hills, Atlanta. He and his wife were the first black family in the middle-class neighborhood. In his book, “Walking with the Wind,” he notes that, “within two years… the white owners began moving out.” Had the value of his house simply kept up with inflation, it would be worth $222,881 today. But Zillow shows that three-bedroom houses in Venetian Hills, Atlanta, are currently selling for around $65,000 to $100,000.
Systematic disinvestment in communities of color means that even when blacks and Latinos own their homes, they are worth far less than white homes. In addition, blacks and Latinos are targets of shady lending. They are more likely to be offered a subprime loan even if they are qualified to receive a better rate. In the wake of the financial crisis, big banks like Blackstone scooped up foreclosed homes and are now offering them to people of color to rent, further pulling wealth out of these communities to benefit rich whites.
The financial crisis had a disparate impact on people of color. A Center for Responsible Lending report examined the loans originated during the subprime boom (2005 to 2008), and found that blacks and Latinos were almost twice as likely to have foreclosed during the crisis. The New York Times reported that Wells Fargo “saw the black community as fertile ground for subprime mortgages, as working-class blacks were hungry to be a part of the nation’s home-owning mania.” They discovered that loan officers “pushed customers who could have qualified for prime loans into subprime mortgages” and “stated in an affidavit… that employees had referred to blacks as ‘mud people’ and to subprime lending as ‘ghetto loans.’”
These problems are troubling, but, as unlikely as it seems, things are about to get even worse. The Supreme Court is set to decide Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a landmark case challenging the disparate impact test, which allows a practice to be considered discriminatory if it disproportionately and negatively impacts communities of color, even if a discriminatory intent can’t be proven.
The case involves an excellent example of why disparate impact is so important: Nearly all of the tax credits that the Texas Department of Housing and Community Affairs had approved were in predominantly non-white neighborhoods. At the same time, the department disproportionately denied the claims in white neighborhoods. A federal judge decided that regardless of racial intent, the result had a “disparate impact” and increased neighborhood segregation. As Nikole Hannah-Jones has extensively documented, disparate impact has been crucial in holding banks accountable. For instance, the Justice Department used it to settle with Bank of America for $335 million after it was discovered that a mortgage company purchased by BofA had been pushing blacks and Latinos into subprime loans when a similar white borrower would have qualified for a prime loan. Because there was no official policy that required blacks and Latinos to get worse loans, the case would not have been won but for the disparate-impact statute.
The Supreme Court has already decimated the Voting Rights Act, opening the door for onerous restrictions on voting. They upheld a law banning affirmative action at state universities and have already crushed integration efforts at K-12 schools. Worryingly, as Demos Senior Fellow Ian Haney López told ProPublica, “It is unusual for the Court to agree to hear a case when the law is clearly settled. It’s even more unusual to agree to hear the issue three years in a row.” Given the importance of neighborhood poverty to upward mobility and wealth building, this case had the potential to be the most destructive, dramatically curtailing opportunity and making the wealth gap into a chasm. As Patrick Sharkey notes, “Neighborhood poverty alone accounts for a greater portion of the black-white downward mobility gap than the effects of parental education, occupation, labor force participation, and a range of other family characteristics combined.”
Demos and Brandeis suggest policies to boost homeownership, like better enforcement of anti-discrimination laws, lowering the cap on the mortgage interest deduction so blacks and Latinos can benefit and authorizing Fannie Mae and Freddie Mac to allow homeowners to modify their loans. In addition, America needs to systematically invest in poor neighborhoods. Equalizing public school education funds for poor and nonwhite schools would increase home prices in poor neighborhoods. In addition, a baby bond program would directly reduce wealth gaps by giving children money that could be used for a down payment on a house or an investment in their education. What’s clear is that we cannot simply hope that wealth gaps will disappear. These gaps were created by racially biased federal policies and need to be remedied by public policy as well. Government created the white middle class in the 1950s; now it’s time to create a black and Latino middle class. The Supreme Court, with its supposedly race-neutral philosophy, will only make it more difficult to close racial wealth gaps.
By: Catherine Ruetschlin, a Senior Policy Analyst at Demos & Sean McElwee, Research Assistant at Demo: Salon, March 14, 2015
“Georgia Bill Helps Wife Beaters”: “Religious Freedom Restoration Act” Is Among The Worst In The Nation
Georgia is poised to pass the nation’s harshest “religious freedom” law, allowing discrimination, judicial obstruction, and even domestic violence. Yet while the bill is far worse than Arizona’s notorious “Turn the Gays Away” bill, it’s attracted far less attention from national advocacy groups and businesses.
The bill, the “Georgia Religious Freedom Restoration Act,” is one of a raft of similar bills (RFRAs, for short) wending their way through state legislatures across the country. The bills are part of the backlash against same-sex marriage, but they go much farther than that. Like the Hobby Lobby decision, which allows closely-held corporations to opt out of part of Obamacare, these laws carve out exemptions to all kinds of laws if a person (or corporation) offers a religious reason for not obeying them.
For example? Restaurants could refuse to serve gay or interracial couples, city clerks could refuse to marry interfaith couples, hotels could keep out Jews, housing developments could keep out black people (Genesis 9:18-27), pharmacies could refuse to dispense birth control, banquet halls could turn away gay weddings, schools could specifically allow anti-gay bullying, and employers could fire anyone for any “religious” reason.
The national movement to pass these laws is well-funded and well-coordinated; most of the laws are written by the same handful of conservative legal hacks in Washington, working for organizations like the Alliance Defending Freedom and Ralph Reed’s Faith and Freedom Coalition, both of which have had a hand in the Georgia bill.
Jeff Graham, executive director of Georgia Equality, said in an interview with The Daily Beast that “in the last two years, there have been 35 bills introduced around the country to establish or expand a RFRA. And there have been over 80 bills filed that specifically allow for discrimination against gay and trans communities.”
As worrisome as these laws are, however, Georgia’s is worse than most.
First, the language is the strictest possible. As with other RFRAs, Georgia’s act says that the government cannot “substantially burden a person’s exercise of religion” without a “compelling governmental interest” and the “least restrictive means of furthering” that interest. This is the classic three-prong test that was at issue in Hobby Lobby, and is considered extremely difficult to meet.
Georgia’s RFRA also specifies that “exercise of religion” can be just about any “practice or observance of religion, whether or not compelled by or central to a system of religious belief.”
In other words, if I say it’s my religious exercise, it is.
Second, the Senate version of the bill was passed by its sponsor, State Senator Josh McKoon, with all kinds of shenanigans. He rammed it through the judiciary committee, which he chairs, while opposition members were in the bathroom.
Then, on dubious procedural grounds, he refused an amendment by a fellow Republican that would have specified that the “religious freedom” could not be used to discriminate against others.
Ironically, says Graham, Georgia doesn’t have that many protections for LGBT people in the first place.
“This is a preemptive strike against the LGBT community,” he says. “If this bill is not intended to allow discrimination, why were its sponsors so adamant about refusing to say so?”
McKoon’s bill passed the Republican-dominated State Senate on March 5, and now heads to the State House, where Republicans have a 2:1 advantage over Democrats, and where representatives have shelved their own version of the bill to try to pass McKoon’s version.
The combination of these factors has led to a curious result: a law so strict that it will lead to a host of unintended consequences—and has even led some Republicans to oppose it.
Some legal commentators have said that the law would give a pass to spousal and child abusers, as long as the husband (or father) has a religious pretext. Which is easy to provide; the Christian Domestic Discipline Network, for example, offers a host of rationales for “wife spanking.” And let’s not forget Proverbs 13:24: “He who spares his rod hates his son. But he who loves him disciplines him diligently.”
Georgia has numerous laws protecting child welfare, which is arguably a compelling state interest. But are such laws really the “least restrictive means” of protecting it? Not necessarily. At the very least, the laws offer a novel defense against assault and battery.
Or maybe not so novel. Graham says, “We have found cases where people used their religious views as an excuse to impede an investigation into child-endangerment and child-abuse charges. They were not ultimately successful, but they did slow down the investigations.”
With the new law, they would be far better armed. In fact, says Graham, conservative district attorneys in Macon and Marietta have said that the bill would impede investigations and prosecutions of child abuse.
Indeed, Georgia’s RFRA recently gained an unlikely opponent: Mike Bowers, the former attorney general of Bowers v. Hardwick fame. As some may recall, that was the Supreme Court case that upheld Georgia’s anti-sodomy law—and Bowers was the named plaintiff.
In an open letter to Graham (PDF), Bowers said that the law is “unequivocally an excuse to discriminate….[P]ermitting citizens to opt-out of laws because of a so-called burden on the exercise of religion in effect ‘would permit every citizen to become a law unto himself.’”
This perhaps is one reason why conservatives like Bowers and the D.A.s in Macon and Marietta stand opposed to it. As Bowers wrote, “this legislation is not about gay marriage, or contraception, or even so-called ‘religious freedom.’ It is more important than all of these, because it ultimately involves the rule of law.”
What is the future of Georgia’s RFRA?
The Georgia State House ends its session on April 2, and Graham predicts a tight vote. “This will probably go all the way to the final hours” of the session, he said.
Oddly, the most effective forces in killing Arizona’s “Turn The Gays Away” bill—corporations and the Chamber of Commerce—seem to be sitting this battle out. Maybe it’s because Arizona was bidding on a Super Bowl and Georgia isn’t. Or maybe it’s because no one is paying attention. But for whatever reason, the corporate silence is deafening.
This is especially the case for Coca-Cola, which has spent millions to brand itself as pro-gay (remember that Super Bowl ad?) but has been mum on the Georgia bill.
“For now, it appears that Coca-Cola has a relationship of convenience with the gay community,” said Bryan Long, executive director of the progressive organization Better Georgia, in an email to The Daily Beast. “The company promotes equality when it serves the brand but won’t stand up for us when we need it most.”
If big business, national media, and national LGBT organizations continue to sit on the sidelines, the bill’s fate may be a matter of vote-counting. The House bill had 59 cosponsors, out of 180 total members. But Graham pointed out that a pending non-discrimination bill has 78, including 19 Republicans. So it is up for grabs.
On the other hand, maybe those who claim to speak for “equality” will decide to actually do something about it.
By: Jay Michaelson, The Daily Beast, March 13, 2015
“The Right To Discriminate”: What Do The GOP Candidates Think Of State ‘Conscience Clause’ Legislation?
There’s an interesting/horrifying piece in today’s New York Times about a trend across the country, but mostly in the South, to enact “conscience” legislation at the state level that would allow businesses to discriminate against gay people if they can justify it on the basis of their religion. One interesting facet of this issue is that the moneyed interests in the GOP, along with big corporations (not the same thing, but there’s plenty of overlap) are completely spooked by these bills. We’ll get to that in a moment, but here are some colorful details:
“The L.G.B.T. movement is the main thing, the primary thing that’s going to be challenging religious liberties and the freedom to live out religious convictions,” said State Senator Joseph Silk, an Oklahoma Republican and the sponsor of a bill in that state. “And I say that sensitively, because I have homosexual friends.”
Of course he does. He goes on:
“They don’t have a right to be served in every single store,” said Mr. Silk, the Oklahoma state senator, referring to gay people. “People need to have the ability to refuse service if its violates their religious convictions.”
I mean, come on. Gay people want to be able to go into every single store? Who do they think they are?
But this brings up a question for me. When the religious conservatives pushing these bills argue for why they’re needed, they always mention a retailer whose work gets right down into all that gayness. Like the baker who might have to make a cake for a gay couple and live through the horror of placing two female figurines on top of the cake, or the photographer who might have to take their picture, trying to see his camera’s viewfinder through the veil of tears he weeps at the destruction of the American family represented by two people making a commitment to spend their lives together.
But no legislator is going to specify an exhaustive list of who would and wouldn’t be able to refuse service, because doing so would be a very difficult thing to write into a bill’s text. Instead, the right to discriminate is inevitably written broadly. For example, one bill in Oklahoma says: “No business entity shall be required to provide any services, accommodations, advantages, facilities, goods or privileges related to any lesbian, gay, bisexual or transgender person, group or association.” Which would mean, for instance, that it would be legal for any store or restaurant to put up a sign saying, “We don’t serve gays.” Other bills (here, for example) are written even more broadly, just saying that the state can’t stop you from acting on your sincerely held religious beliefs, which would include discriminating against gay people if that’s your thing.
As the Times story details, some of these bills have died in the face of opposition from business interests; for instance, when Walmart came out against the one in Arkansas, it was pretty much doomed. The company may be conservative in many ways, but it doesn’t want its state to be known as a bastion of hatred and discrimination.
So I’d be interested to hear specifically from some influential Republicans—like, say, the ones running for president—on what they think of these laws. I looked around a bit and didn’t find any of them commenting on it, which isn’t too surprising given that it’s been playing out at the state level. But maybe someone should start asking. Do they think a baker ought to be able to discriminate? And if they say that there ought to be a way for the baker to exercise his “conscience,” then the next question is, what about a restaurant? What about a hardware store?
By: Paul Waldman, Senior Writer, The American Prospect, March 6, 2015
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