What Fresh Hell Is This?

April 1, 2015

RFRA: 19 States AND The Federal Gov't The Same As Indiana's?

I heard Robert Mangino on KDKA a few days ago make the case that the Indiana's recently signed RFRA law is about freedom! and what's the big deal, since 19 states AND the Federal Government have all signed similar legislation.

Perhaps he should have done his homework before getting on KDKA's 50,000 brawny watts of radio influence.

For a number of reasons the Federal RFRA has some distinct limitations that Indiana's anti-gay legislation does not have.  For example from the ACLU of Indiana:
Isn't Indiana's new RFRA just like the federal law from 1993?
Unfortunately, the Indiana law is written more broadly than the federal Religious Freedom Restoration Act of 1993. For instance, a critical difference is that SB 101 would allow for-profit businesses, employees and individuals—basically anyone—to assert a legal claim or defense of free exercise of religion in a legal proceeding, regardless of whether the government is a party to the proceeding. This is virtually without precedent.
Then there's this from Matt Anderson, a trial lawyer in South Bend Indiana:
Let’s start with Section 5, which reads: “As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

First, note the lack of any restrictive language in this paragraph. The word “includes” is deliberately used in place of “means.” The latter would at least limit “any exercise of religion” to the predicate definition. “Includes” just means that this is but one example of exercising religion. (Here the law goes beyond its most similar counterparts in Texas and New Mexico which use “means”.) While this language indeed mirrors the federal legislation, proponents of the IRFRA have submitted that Indiana’s constitution protects religious freedom to greater extent than federal law. Second, religion is not defined. So, “any exercise of religion” is subject to a fairly broad interpretation. Third, any action which may fall under the “exercise of religion” may or not be “compelled by, or central to, a system of religious belief.” In other words, even if the belief is at the fringe of what a religion may or may not hold true, it falls under this definition of exercising one’s religion. [Emphasis in original.]
He then adds this part from section 7:
(B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.
And this from section 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.
And he summarizes it this way:
In other words, you can defend yourself in a criminal or civil action on the very broad basis of “any exercise of religion.” Where this may apply the most would be a Court’s ability or inability to apply a human rights ordinance against someone with a religious objection. (That we can even have an exercise in religion running directly against a human rights ordinance is cause alone for concern.) Such ordinances typically prohibit the discrimination employment, housing, education and public accommodations on the basis of a person’s sexual orientation or gender identity.
In fact, whether it's similar to Pennsylvania's RFRA there's this from The Atlantic:
There’s a factual dispute about the new Indiana law. It is called a “Religious Freedom Restoration Act,” like the federal Religious Freedom Restoration Act, passed in 1993.* Thus a number of its defenders have claimed it is really the same law. Here, for example, is the Weekly Standard’s John McCormack: “Is there any difference between Indiana's law and the federal law? Nothing significant.” I am not sure what McCormack was thinking; but even my old employer, The Washington Post, seems to believe that if a law has a similar title as another law, they must be identical. “Indiana is actually soon to be just one of 20 states with a version of the Religious Freedom Restoration Act, or RFRA,” the Post’s Hunter Schwarz wrote, linking to this map created by the National Conference of State Legislatures.

The problem with this statement is that, well, it’s false. That becomes clear when you read and compare those tedious state statutes. 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.
Mangino, you should have done your homework better.

As far as RFRA is concerned, I'll have to agree completely with Indiana native David Letterman on this:
It may be legal but it ain't right.

5 comments:

Heir to the Throne said...

I'll have to agree completely with Indiana native David Letterman that underage rape jokes about Sarah Palin's kids are hilarious.

JUDI M. said...

Then there's this From Sen. Schumer’s Facebook page:

There are two simple reasons the comparison does not hold water.

First, the federal RFRA was written narrowly to protect individuals’ religious freedom from government interference unless the government or state had a compelling interest. If ever there was a compelling state interest, it is to prevent discrimination. The federal law was not contemplated to, has never been, and could never be used to justify discrimination against gays and lesbians, in the name of religious freedom or anything else.

Second, the federal RFRA was written to protect individuals’ interests from government interference, but the Indiana RFRA protects private companies and corporations. When a person or company enters the marketplace, they are doing so voluntarily, and the federal RFRA was never intended to apply to them as it would to private individuals.

The whole article is here

Heir to the Throne said...

"There are two simple reasons the comparison does not hold water."

Sen. Schumer is FOS.
More of his progressive BS that corporations are not people so they deserve no Constitutional or legal protection from the Government.
"protect individuals’ interests from government interference, but ... protects private companies and corporations."

http://voxday.blogspot.com/2015/04/cowardice-ignorance-media.html

Ol' Froth said...

Origional Intent and Strict Constitutionalism Heir. WHen the Constitution was drafted, a corporation could not exist without a government charter, that changed with Trustees of Dartmouth College v Woodward, and was expanded by the COurt in Santa Clara County v Southern Pacific RR. Damn activist judges! Based on the priciple of orginal intent, Schumer is absolutly correct.

Shawn Deny said...

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.
criminal