“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
“Let’s Not Beat Around The Bush”: Voter ID Laws Have But One Intent, To Limit The Franchise
Belatedly, federal Judge Richard Posner has arrived at the obvious conclusion about voter identification laws: They are enacted as a barrier to the franchise, an un-American tactic hatched by conservatives to prevent certain people from voting. It’s too bad that his epiphany came so late.
Posner is one of the nation’s most respected conservative jurists. As a judge on the U.S. Court of Appeals for the 7th Circuit, he might have led the nation’s highest court to reject new restrictions around voting. Instead, in 2007, Posner wrote the majority opinion that upheld Indiana’s stringent law, setting the stage for the U.S. Supreme Court to reason that it did no harm to an unfettered franchise.
That was quite wrong, as Posner now acknowledges. While he disavowed his earlier endorsement of the law in a new book, Reflections of Judging, he went further in a video interview earlier this month with The Huffington Post, saying that the dissenting view was the right one.
In that dissent, the late Judge Terence Evans wrote: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” That about sums it up.
Still, I see in Posner’s late-arriving epiphany occasion for hope that debates about obstacles to voting, which have proliferated in states controlled by Republicans, will now proceed with more intellectual honesty. Let’s give up the preposterous justification that the barrage of new restrictions around the franchise — regulations that include limits on early voting — are intended to prevent voter fraud.
Recently, the consequences of those restrictions have been clear in Texas, which was among the states that rolled out new measures after the U.S. Supreme Court decimated the Voting Rights Act earlier this year. (Posner has had interesting comments about that decision too, dismissing its intellectual and legal foundations as non-existent. “The opinion rests on air,” he wrote.)
Eighty-four-year-old Dorothy Card, a Texas resident, has voted for six decades, but she stopped driving 15 years ago and doesn’t have a driver’s license, the ID preferred in voter-suppression states. By late last month, she had tried three times to obtain an ID that would allow her to vote in November elections, according to Think Progress, a left-leaning political blog. Her daughter said she would keep trying but with little expectation of success since each attempt required a different set of documents.
But perhaps the case that poses the biggest challenge for the Texas voter-suppression camp concerns a sitting judge, Sandra Watts. She was nearly barred from voting earlier this month because her name is listed slightly differently on her driver’s license than on voter registration rolls. Her driver’s license lists her maiden name as her middle name, while the voter registration roll lists her real middle name. As a consequence, she was told she’d have to vote using a provisional ballot, which would be checked to assure her identity.
As she told a Texas TV station, it’s not unusual for a married woman to condense her name by putting her maiden name in the middle. “I don’t think most women know that this is going to create a problem. That their maiden name is on their driver’s license, which was mandated in 1964 when I got married …” she said.
Meanwhile, there are no — zip, zilch, zero — comparable stories of fraud prevented by the new laws. Perhaps that’s because in-person fraudulent voting of the sort the new laws ostensibly prevent is virtually non-existent. Analyses have consistently shown that voter fraud is much more likely to occur through absentee ballots, which the voter-suppression crowd have usually ignored.
Here’s the not-so-hidden agenda behind voter ID laws: blocking the franchise for voters who lean toward Democrats. Those voters can be found easily enough among poorer blacks and Latinos, who tend to be less likely to own cars and to have driver’s licenses. Target them, and you can shave off several hundred or a few thousand votes — enough to win a close election.
That’s what Republicans are up to. Let’s hope Posner’s acknowledgment might at least spark more honesty about their motives.
By: Cynthia Tucker, The National Memo, October 26, 2013
“A Failure Of Democracy”: Judge Richard Posner’s Unforced Error On Voter ID And Non-Existent Voter Fraud
Two weeks ago, Richard Posner, one of the most respected and iconoclastic federal judges in the country, startled the legal world by publicly stating that he’d made a mistake in voting to uphold a 2005 voter-ID law out of Indiana, and that if he had properly understood the abuse of such laws, the case “would have been decided differently.”
For the past ten days, the debate over Judge Posner’s comments has raged on, even drawing a response from a former Supreme Court justice.
The law in question requires voters to show a photo ID at the polls as a means of preventing voter fraud. Opponents sued, saying it would disenfranchise those Indianans without photo IDs — most of whom were poor, elderly, or minorities. State officials said the law was necessary, even though no one had ever been prosecuted for voter fraud in Indiana.
Judge Posner claimed, during an Oct. 11 interview with HuffPost Live, that at the time of the ruling, he “did not have enough information … about the abuse of voter identification laws” to strike down the Indiana statute. But he also said the dissenting judge on the panel, Terence Evans, had gotten it “right” when he wrote that the law was “a not-too-thinly-veiled attempt to discourage election-day turnout” by certain voters who tended to vote Democratic. (It was passed on a straight party-line vote by a Republican-controlled legislature.)
Last Thursday, former Supreme Court Justice John Paul Stevens sounded several of the same notes, telling the Wall Street Journal that while he “isn’t a fan of voter ID,” his own 2008 opinion upholding Judge Posner’s ruling was correct — given the information available at the time. Incidentally, Justice David Souter dissented for roughly the same reasons as Judge Evans, and Justice Stevens now says that “as a matter of history,” Justice Souter “was dead right.”
But all the judges had the same record in front of them at the time. So what information did the dissenters rely on that Judge Posner and Justice Stevens did not? That’s the question raised in a smart critique by Paul M. Smith, who argued the plaintiffs’ case before the Supreme Court.
Mr. Smith pointed out that there was never any doubt the law would make voting harder for potentially tens of thousands of voters, and that the plaintiffs submitted numerous affidavits from voters who explained how they would be harmed by the law. Even if the actual number was lower, it was certainly higher than zero, which is the number of voter-fraud incidents recorded in Indiana when the law was enacted.
In other words, both the Seventh Circuit and the Supreme Court got the balance of burdens wrong, as Indiana University law professor Fran Quigley rightly noted. Given that voting is a fundamental right, Quigley wrote, “the burden should have been on the State of Indiana to prove the law was necessary, not the challengers to prove how it would trigger abuse.”
Judge Evans put it more pungently in his 2007 dissent, saying the law was effectively using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”
Rather than acknowledge this reality, Judge Posner’s original opinion dismissed the importance of the voters’ claims, contending that since no election gets decided by a single vote, the “benefits of voting to the individual voter are elusive.”
That bizarre logic suggests that the judge’s problem was not a lack of information, but what former White House counsel Bob Bauer called “a failure of democratic imagination.”
Particularly in light of the Supreme Court’s decision in June gutting the Voting Rights Act, it would be nice if Judge Posner extended his fuller understanding of the true nature of voter-ID laws to his legal opinions, and not simply to online interviews.
By: Jesse Wegman, Editors Blog, The New York Times, October 22, 2013
“Moving Past The Awkwardness With Respect”: Learning To Talk About Harriet Tubman, Slavery And Racism
Slavery and race are awkward and uncomfortable subjects for many Americans. As a result, we often find awkward and uncomfortable ways to talk about them. That was my conclusion earlier this week when, as a means of debuting his new channel All Def Digital, hip-hop entrepreneur Russell Simmons posted a video parody titled, “Harriet Tubman’s Sex Tape.” In the video, the iconic “conductor” of the Underground Railroad is shown secretly recording sexual relations with her “Massa” in an attempt to blackmail him into allowing her to start her now famous freedom train. Almost as soon as it was released the three-minute video prompted a wave of condemnation and a Change.org petition. It wasn’t long before the NAACP asked Simmons to take it down. He offered an apology—”For all those I offended, I am sincerely sorry”—and removed the clip from his website.
Simmons’s satirical approach represents one extreme. (“I’m a very liberal person with thick skin,” he explained.) On the other is the trend of introducing children to slavery with traumatic role-playing exercises. For example, in 2008, a middle school social studies teacher in suburban New York, who is white, bound the hands and feet of two black girls and instructed them to crawl underneath a desk to simulate the conditions of a crowded slave ship. In 2011, an elementary school student in Ohio described himself as having been “humiliated” after he was forced to play the role of a slave at a mock slave auction and his white classmates were urged to degrade him during the exercise. That same year in Virginia, the Washington Post reported that a fourth grade teacher also held a mock slave auction in her class and that the white children took turns buying the black and mixed-race children.
It’s not just in school classrooms that this reality show approach to slavery is taking place. At Connor Prairie Interactive History Park in Indiana, the public is asked to pay $20 to “Come face-to-face with slave hunters, see fear and hope in the eyes of a fellow runaway and… experience life as a fugitive slave during your journey through one of the most compelling periods in Indiana’s history. “ 60% of the visitors to the park are school children. According to a 2009 article from the Organization of American Historians’ Magazine of American History by historian Carl Weinberg, white visitors to the park often say they are getting quite a lot out of the experience of the reenactment, but it is not uncommon for African American visitors to feel uncomfortable about fully immersing themselves in the experience. Is this really a surprise to anyone?
Just for a moment, imagine if the holocaust was taught by either of these methods—a satire of Anne Frank, for example, trading sexual favors, or a fourth grade class of children being separated into jews and gentiles with the latter leading the former off to their death. It is hard to visualize either of those things happening. Slavery is the most profound mistake this country has ever made—”the great and foul stain upon the North America Union,” as John Quincy Adams said. We need to learn how to move past the awkwardness and talk with each other about it respectfully before we can laugh about it or relive the experience.
By: Noliwe M. Rooks, Time Magazine, August 17, 2013
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