The Gay Legal Rulings Thread

[grumbler]

I was under the impression that the Federal version applied only to governmental interactions, whereas the Indiana version is about private citizens/businesses.  The Federal version has also lost a lot of its original clout in a series of SCOTUS decisions.

The SCOTUS rulings stated that the Federal law couldn't apply to the states - Congress didn't have that power.  That's why states have been enacting their own versions of the law.  The Federal law still applies to Federal jurisdictions.

[Syt]

So with Indiana's "Freedom of Religion Restoration Act," I have couple of questions:

- If a business owner refuses service to someone (say, someone he believes is gay) because it would be an undue burden on his religious conscience, how does the burden of proof work? After all, many times you can't tell from someone browsing your store whether they're gay or not.

I don't believe that anyone has ever used FRRA to justify denial of service.

- How far can this law go? If you think adulterers are sinners, can you refuse service? If you're devout Hindu and come into contact with an "untouchable" caste? Or as devout Muslim, can you refuse service to women who are not dressed appropriately or wear no hijab?

None of those have ever been successfully justified under any version of FRRA.

- And what if you feel you've been wrongfully denied service?

FRRA doesn't change this at all.

And that's three questions, not "a couple." 

The Indiana version of the FRRA is the same as the federal version, which passed the HoR unanimously and the Senate 97-3.  It has been enacted in something like 20 states. It is hardly controversial in actual fact, and hasn't lead to denial of service on religious grounds.  I find the widespread belief that it is something new and controversial to be a powerful condemnation of the American media system.

I'm sorry, maybe FRRA isn't the right term. I meant the State Senate Bill 101. Full text is here: http://www.indystar.com/story/news/politics/2015/03/27/text-indianas-religious-freedom-law/70539772/

Unfortunately, English is my second language and I'm not a lawyer, so I find it difficult to understand.

[Malthus]

So with Indiana's "Freedom of Religion Restoration Act," I have couple of questions:

- If a business owner refuses service to someone (say, someone he believes is gay) because it would be an undue burden on his religious conscience, how does the burden of proof work? After all, many times you can't tell from someone browsing your store whether they're gay or not.

I don't believe that anyone has ever used FRRA to justify denial of service.

- How far can this law go? If you think adulterers are sinners, can you refuse service? If you're devout Hindu and come into contact with an "untouchable" caste? Or as devout Muslim, can you refuse service to women who are not dressed appropriately or wear no hijab?

None of those have ever been successfully justified under any version of FRRA.

- And what if you feel you've been wrongfully denied service?

FRRA doesn't change this at all.

And that's three questions, not "a couple." 

The Indiana version of the FRRA is the same as the federal version, which passed the HoR unanimously and the Senate 97-3.  It has been enacted in something like 20 states. It is hardly controversial in actual fact, and hasn't lead to denial of service on religious grounds.  I find the widespread belief that it is something new and controversial to be a powerful condemnation of the American media system.

I'm sorry, maybe FRRA isn't the right term. I meant the State Senate Bill 101. Full text is here: http://www.indystar.com/story/news/politics/2015/03/27/text-indianas-religious-freedom-law/70539772/

Unfortunately, English is my second language and I'm not a lawyer, so I find it difficult to understand.

Don't sweat it, you had it right.

Grumbler is just pointing out that the significant controversy over the enactment of this law (which you have no doubt read) is unjustified.

The reason it is unjustified: the same law exists federally and in several states already, without any of the bad effects on minorities that have been proposed as arising from this law in Indiana actually occurring; so it is reasonable to assume it won't have those bad effects in Indiana, either.   

That said, I haven't myself actually compared the texts of the various laws.

[grumbler]

I'm sorry, maybe FRRA isn't the right term. I meant the State Senate Bill 101. Full text is here: http://www.indystar.com/story/news/politics/2015/03/27/text-indianas-religious-freedom-law/70539772/

Unfortunately, English is my second language and I'm not a lawyer, so I find it difficult to understand.

Senate Bill 101 is substantially identical to the Federal law which, as I noted, was passed almost without opposition (total 3 votes against in both houses of Congress combined):
Federal law:

PUBLIC LAW 103-141—NOV. 16, 1993 107 STAT. 1489
(a) IN GENERAL.—Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION.—Government may substantially burden a person's exercise of religion only if it 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.

(c) JUDICIAL RELIEF. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

http://www.gpo.gov/fdsys/pkg/STATUTE-107/pdf/STATUTE-107-Pg1488.pdf

Indiana law (from your cite):

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) 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.

Sec. 9. 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 proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.

Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person's exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case, the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney's fees, to a person that prevails against the governmental entity under this chapter.

None of the awful, dreadful things that supposedly will happen to gays and lesbians under the Indiana law have happened under the federal law, even when it was believed to apply to state laws.  Twenty other states have adopted this law, and none of the awful dreadful things happened there, either. 

This is a non-story, made into a story by ignorance and the willful promulgation of untruths.  I didn't realize how very stupid actor Harvey Fierstein was until he started his ludicrous tweets about this, so I guess some good has come of this.

[Admiral Yi]

Syt:

The World's Most Well-Spoken Black Man discussed this on CNN. 

He mentioned three issues with this law, compared to other states (or the US) that have a similar statute.

One is that the law applies to "any person," which he interpreted to include corporations.

Two is that the belief in question does not have to be central to a religion.

The third is that other states, specifically Illinois, where Obama voted for a similar measure, already have a statute protecting gays as a protected class.

On top of that there is the March Madness connection, which raises the profile.  Not sure if the final is being held in Indianapolis this year, but rounds of 16 and 8 have been.

[Martinus]

What is the justification for making a religious belief more worthy of being "unburdened" than, say, any other strongly held belief?

[Admiral Yi]

What is the justification for making a religious belief more worthy of being "unburdened" than, say, any other strongly held belief?

I would guess a larger number of voters in favor of it.

[Syt]

Thanks for the explanations, guys.

An Atlantic article on the same subject also just popped up in my news feed: http://www.theatlantic.com/politics/archive/2015/03/what-makes-indianas-religious-freedom-law-different/388997/?utm_source=SFFB

"What Makes Indiana's Religious-Freedom Law Different?

[...]

If you do that, you will find that the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to "the free exercise of religion." The federal RFRA doesn't contain such language, and neither does any of the state RFRAs except South Carolina's; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

The new Indiana statute also contains this odd language: "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 proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding." (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

[...]

So, let's review the evidence: by the Weekly Standard's definition, there's "nothing significant" about this law that differs from the federal one, and other state ones—except that it has been carefully written to make clear that 1) businesses can use it against 2) civil-rights suits brought by individuals.

[...]

In 2000 my sister in the U.S. suggested I should move over to the States and enroll in a law school. I'm glad I never did that. 

[grumbler]

What is the justification for making a religious belief more worthy of being "unburdened" than, say, any other strongly held belief?

The First Amendment.

[grumbler]

Thanks for the explanations, guys.

An Atlantic article on the same subject also just popped up in my news feed: http://www.theatlantic.com/politics/archive/2015/03/what-makes-indianas-religious-freedom-law-different/388997/?utm_source=SFFB

"What Makes Indiana's Religious-Freedom Law Different?

[...]

If you do that, you will find that the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to "the free exercise of religion." The federal RFRA doesn't contain such language, and neither does any of the state RFRAs except South Carolina's; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

The new Indiana statute also contains this odd language: "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 proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding." (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

[...]

So, let's review the evidence: by the Weekly Standard's definition, there's "nothing significant" about this law that differs from the federal one, and other state ones—except that it has been carefully written to make clear that 1) businesses can use it against 2) civil-rights suits brought by individuals.

[...]

In 2000 my sister in the U.S. suggested I should move over to the States and enroll in a law school. I'm glad I never did that. 

I hadn't noted the bolded (by me) part.  That changes my conclusions, I think.   The businesses part isn't an issue, since the USSC has held that businesses are persons, but the fact that the religious burden defense can be applied to civil suits could be a difference.  I am not sure how a government entity could not be involved in a civil rights case (the plaintiff is suing for damages resulting from a violation of a law, not for damages resulting from differing interpretations of a contract), so i don't know if there is a practical difference, but I'm going to step back from my assertion that there was nothing new here.

[The Minsky Moment]

"What Makes Indiana's Religious-Freedom Law Different?

First, the Indiana law explicitly allows any for-profit business to assert a right to "the free exercise of religion." The federal RFRA doesn't contain such language

Not explicitly but the larger definition of "person" was written in by the Supreme Court in Hobby Lobby

[Martinus]

So, what does it mean to live in a democracy where Sodomite Suppression Act can even be put on the ballot?

[The Brain]

So, what does it mean to live in a democracy where Sodomite Suppression Act can even be put on the ballot?

You think democracy should should just be about stuff you agree with and not about the will of the people?

[Martinus]

So, what does it mean to live in a democracy where Sodomite Suppression Act can even be put on the ballot?

You think democracy should should just be about stuff you agree with and not about the will of the people?

[dps]

What is the justification for making a religious belief more worthy of being "unburdened" than, say, any other strongly held belief?

The First Amendment.

Frankly, I can't really see what the Federal law does or what behavior it protects that the First doesn't already do/protect.