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GlennMacGrady
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 Posted: 03/27/15 11:57 am ::: |
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| beknighted wrote: |
I don't know about all of the other states, but my understanding is that this particular version of the law is intended to reach private transactions, while other ones (notably the federal version) are about interactions with the government. If that's correct, the breadth of this one is much greater than the others. |
Here's the Indiana bill, Beknighted:
http://iga.in.gov/static-documents/9/2/b/a/92bab197/SB0101.05.ENRS.pdf
You are probably referring to Section 9. In any event, please note that the prerequisites for both Sections 8 and 9 are:
- a governmental law that burdens the free exercise of religion
- some religious defendant who is making that claim or defense
- in the context of an adjudicative proceeding
- in which the strict scrutiny standard will be used to evaluate the claim exactly the same as if the government were a party, and in fact the government has an absolute right to intervene.
I'd be interested in how your "breadth" hypothesis would increase the supposed detrimental effect on gays. Or, if you feel Constitutional today, perhaps you could explain how it increases the positive effect on the exercise of religious freedom. |
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justintyme
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| Posted: 03/27/15 12:19 pm ::: |
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| GlennMacGrady wrote: |
| I have no idea what your politics or religion are, and I'm not talking about my personal political or religious beliefs in my legal analysis in this thread of what I perceive to be a profoundly misunderstood and incompetently reported Indiana statute. I'd be willing to more generally discuss the Constitutional free exercise of religion or the interpretation of biblical texts in another thread. However, I feel confident that neither the passage or defeat of this particular Indiana statute would affect your cultural concerns one way or the other. |
The problem I have with this analysis is that it arbitrarily narrow, only considering the letter of the law rather than the spirit and the potential later application.
For instance, if you told the people who passed the original RFRA how it would be used in the case of Hobby Lobby they would probably puke. The idea of a corporation being considered a "person" was foreign to them. The RFRA was not intended to allow businesses to impose their religious beliefs upon their employees (or their customers), but rather to stop the government from preventing private citizens from actively practicing their faith.
More importantly, your legal analysis completely ignores the climate in which this law is being passed, and the arguments being made by those who passed it. The authors of this bill have made no secret to the fact that they wanted it passed due to SCOTUS's impending decision on same-sex marriage. They see cases like the New Mexico photographer who lost her court battle after refusing to work at a same-sex wedding, or the Oregon baker who refused to sell to a same-sex couple. So what they want, is legal protection for those people. In other words, they want to make sure that these people can legally discriminate as long as it is based upon their religious beliefs.
These are some significant parts:
| Quote: |
| Sec. 4. As used in this chapter, "person" means an individual, an association, a partnership, a limited liability company, a corporation, a church, a religious institution, an estate, a trust, a foundation, or any other legal entity. |
This solidifies that businesses (or really any entity at all) needs to be treated as "persons" for this law.
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| Sec. 5. As used in this chapter, "state action" means: (1) the implementation or application of a state or local law or policy; or (2) the taking of any other action; |
"The taking of any other action" is significant here. This would limit the State's ability to successfully bring discrimination charges against a person or business, as long as their reason for discriminating was based upon their religious tenets. In other words, what New Mexico did against the photographer would be near impossible under this law.
| Quote: |
Sec. 7. (a) A person whose exercise of religion:
(1) has been substantially burdened; or
(2) is likely to be substantially burdened;
by a violation of section 6 of this chapter may assert the violation, or impending violation, as a claim or defense in a judicial proceeding, regardless of whether the state or a political subdivision of the state is a party to the judicial proceeding.
(b) A person who asserts a claim or defense under subsection (a) may obtain appropriate relief from a violation, or an impending violation, of section 6 of this chapter, including relief against the state or a political subdivision of the state. Appropriate relief 2015IN 568—LS 7497/DI 69
3 under this subsection includes any of the following:
(1) Injunctive relief.
(2) Declaratory relief.
(3) Compensatory damages.
(4) Recovery of court costs and reasonable attorney's fees. |
Here we learn that this bill not only applies to the state, but also the interaction between private entities. "Religion" can not only be cited when the State brings action against an entity, but also if a private citizen does. So if I bring a discrimination lawsuit, or a wrongful termination lawsuit, the person or business or other entity that I am suing can use their religion as a defense against me. And not only that, but they can counter sue for "compensatory damages".
So, based upon the wording of this bill, it does in fact seem to allow for discrimination akin to the events in New Mexico and Oregon.
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pilight
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| Posted: 03/27/15 12:36 pm ::: |
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| justintyme wrote: |
| The idea of a corporation being considered a "person" was foreign to them. |
This is certainly not true. Corporations have been considered people under the law since at least 1886 (Santa Clara vs Southern Pacific Railroad).
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justintyme
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| Posted: 03/27/15 12:44 pm ::: |
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| pilight wrote: |
| justintyme wrote: |
| The idea of a corporation being considered a "person" was foreign to them. |
This is certainly not true. Corporations have been considered people under the law since at least 1886 (Santa Clara vs Southern Pacific Railroad). |
Hmm. I thought that Citizens United expanded constitutional protections (free speech) to corporations and that expansion played a significant role in the Hobby Lobby desicion.
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pilight
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| Posted: 03/27/15 1:02 pm ::: |
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| justintyme wrote: |
| pilight wrote: |
| justintyme wrote: |
| The idea of a corporation being considered a "person" was foreign to them. |
This is certainly not true. Corporations have been considered people under the law since at least 1886 (Santa Clara vs Southern Pacific Railroad). |
Hmm. I thought that Citizens United expanded constitutional protections (free speech) to corporations and that expansion played a significant role in the Hobby Lobby desicion. |
Expanded, perhaps, but the concept of corporation as person is far from new. Even the case I cited above isn't its first mention. Dartmouth College v. Woodward (1819) and a few others touched on it as well.
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GlennMacGrady
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| Posted: 03/27/15 1:56 pm ::: |
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| TonyL222 wrote: |
Forget [all] the legal mumbo jumbo. I'm having a hard time reconciling in my mind how refusing service to citizens based upon their sexual preference would be an expression of my Christian convictions.
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Well, Tony, your mind may not matter. The minds that matter on this issue are those of religious people whose religion holds the traditional view that homosexual conduct (but not status) is immoral and sinful.
One might not like historical facts, but facts they are. And the historical fact is that all traditional Abrahamic religions hold homosexual conduct (but not the status of having a homosexual orientation) to be immoral. The Abrahamic religions are Judaism, Christianity, Islam, Bahai, Mormonism, and the various Restorationist religions. Today, it's probably fair to say that some of the more liberal sects of Protestantism and Judaism no longer subscribe to this traditional morality, but pretty much all the rest still do. In fact, in Islamic countries governed by sharia law, homosexual conduct is considered so immoral that it's subject to the death penalty.
The traditional Abrahamic moral view toward homosexual conduct is derived from traditional interpretations of various texts of the Hebrew Bible and the New Testament, including Jesus' comments on marriage in Mark 10:6-8.
Buddhism is more complicated, but there are many statements from the Dalai Lama that homosexual conduct is immoral for Buddhists within his sect of Buddhism.
All this may be unpleasant to many folks today, and these interpretations may be disputed, but they are historical facts. And they are historical facts that still strongly persist in all cultures today, in the minds and religious beliefs of billions of people.
So, to answer your disingenuous question, religious people who subscribe to traditional religious morality and practices are sometimes reluctant to engage in activities that they perceive to be inconsistent with their institutional religion's teachings on subjects such as abortion, the death penalty, sacramental marriage, religious statuary, Christmas creches, depictions of the Ten Commandments, prayer in school, bigamy, polygamy, sodomy, religious leafleting, and many other religious practices or beliefs, some of which have already been litigated.
The legal mumbo jumbo necessarily comes in when some religious person's activity is prosecuted by the government or a private party under some governmental law, and that person then claims he or she is exempt from the law by virtue of the Constitutional protection of the Free Exercise of Religion Clause. At that point, the court must decide which of two mumbo jumbo legal rules to apply to the dispute. The Indiana statute (and all RFRA statutes) simply say use Rule A instead of Rule B.
This all is a complicated intersection of complex law and religion, and I'm trying really hard to to explain it so there is at least a more informed balance to the discussion.
Finally, Tony, I'll answer your question in a more practical way, as I already have done above. I don't believe most small businesses owned by religious people will refuse their products or services to gays -- just as you presumably wouldn't. I think the number will be microscopic, and that there will be no practical impediment to gays, who will have many competing business outlets at their service.
And I also believe the RFRA rule will be of great libertarian benefit in the overwhelming majority of future Free Exercise of Religion court cases that will have nothing at all to with gay marriage (or abortion). |
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TonyL222
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| Posted: 03/27/15 2:28 pm ::: |
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| GlennMacGrady wrote: |
| TonyL222 wrote: |
Forget [all] the legal mumbo jumbo. I'm having a hard time reconciling in my mind how refusing service to citizens based upon their sexual preference would be an expression of my Christian convictions.
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Well, Tony, your mind may not matter. The minds that matter on this issue are those of religious people whose religion holds the traditional view that homosexual conduct (but not status) is immoral and sinful.
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My mind ALWAYS matters.
I consider myself to be a "fundamental" Christian in that I believe the Bible is the inerrant and infallible word of God. Your long explanation is conflating different concepts. What many people do in the name of Christianity would be rejected by Christ:
Matthew 23:23
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| 23 “Woe to you, scribes and Pharisees, hypocrites! For you pay tithe of mint and anise and cummin, and have neglected the weightier matters of the law: justice and mercy and faith. These you ought to have done, without leaving the others undone. |
Christian who believe that anyone is in sin should believe this:
Matthew 9:10-13
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10 Now it happened, as Jesus sat at the table in the house, that behold, many tax collectors and sinners came and sat down with Him and His disciples. 11 And when the Pharisees saw it, they said to His disciples, “Why does your Teacher eat with tax collectors and sinners?”
12 When Jesus heard that, He said to them, “Those who are well have no need of a physician, but those who are sick. 13 But go and learn what this means: ‘I desire mercy and not sacrifice.’[a] For I did not come to call the righteous, but sinners, to repentance.” |
| GlennMacGrady wrote: |
So, to answer your disingenuous question, religious people who subscribe to traditional religious morality and practices are sometimes reluctant to engage in activities that they perceive to be inconsistent with their institutional religion's teachings on subjects such as abortion, the death penalty, sacramental marriage, religious statuary, Christmas creches, depictions of the Ten Commandments, prayer in school, bigamy, polygamy, sodomy, religious leafleting, and many other religious practices or beliefs, some of which have already been litigated.
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I think you quoted a statement I made - not a question. any statement or question I posted is genuine, thank you.
Everything in your list of evils involves a personal and direct act of sin. Selling a cake or using my expertise to take photographs neither infringes upon my exercise of religion nor endorses the sin of others, IMO. If anything, its an opportunity to display and share the love of Christ with a non-believer.
Jesus particularly disdained the overly legalistic religious practices of the Pharisees. Those religious folk who pushed for this law are modern day Pharisees, in my estimation.
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GlennMacGrady
Joined: 03 Jan 2005
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| Posted: 03/27/15 4:05 pm ::: |
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JIT, I appreciate your professional and civil rejoinders.
| justintyme wrote: |
More importantly, your legal analysis completely ignores the climate in which this law is being passed, and the arguments being made by those who passed it. The authors of this bill have made no secret to the fact that they wanted it passed due to SCOTUS's impending decision on same-sex marriage. |
I don't know the arguments specifically in Indiana. However, I can read the text for it's clear meaning and effect on future FER cases, which I predict over the long term will include only a trivial percentage of gay discrimination cases.
Personally, I see zero possibility that the enactment of a RFRA rule in Indiana, a rule already in place in 30 other states and throughout the federal court system, will influence any Supreme Court 14th Amendment decision on gay marriage. I expect the Court to find a right to gay marriage.
| justintyme wrote: |
| They see cases like the New Mexico photographer who lost her court battle after refusing to work at a same-sex wedding, or the Oregon baker who refused to sell to a same-sex couple. So what they want, is legal protection for those people. In other words, they want to make sure that these people can legally discriminate as long as it is based upon their religious beliefs. |
I'm not familiar with these two cases but will read them if you have cites. If the courts in those cases did not use strict scrutiny to review a Free Exercise issue, then I think those cases were wrongly decided. I strongly believe that all First Amendment protections deserve strict scrutiny. However, even with a strict scrutiny review standard, it's easy for me to see a FER defense failing in certain types of discrimination situations, as they historically have failed in many court cases involving protected classes.
JIT, I was going to reply in some detail to your quotes from and interpretations of the statute, but the wording you are quoting is different from what I read as the final version of the statute. Is one of us reading the wrong thing?
In any event, the statute does give standing to corporations but goes on to define those only as closely held corporations -- ones that are small enough to discern an actual religion of the individual owners -- which was a limitation also prescribed by Hobby Lobby.
As to giving a religious defendant the right to strict scrutiny in an action by a private prosecutor, there still must be a governmental law that is "burdening" the defendant's religious freedom. It's that law that gets strict scrutiny (rather than intermediate scrutiny), just as it would for a governmental prosecutor. This is fair and reasonable.
Moreover, it's fair due process to give this defense to a defendant in those states that give private plaintiffs standing to prosecute actions under governmental nondiscrimination laws. What concept of fundamental due process would deprive a defendant of a First Amendment defense, or a greater level of judicial scrutiny to the statute at issue, just because a state law is being enforced by a private prosecutor rather than by a governmental prosecutor? It would probably be unconstitutional, under the Due Process Clause, have such an invidious discrimination against religious defendants depending on the identity of the prosecutor.
Last edited by GlennMacGrady on 03/27/15 4:59 pm; edited 3 times in total |
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GlennMacGrady
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| Posted: 03/27/15 4:46 pm ::: |
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| TonyL222 wrote: |
Everything in your list of evils involves a personal and direct act of sin. Selling a cake or using my expertise to take photographs neither infringes upon my exercise of religion nor endorses the sin of others, IMO. If anything, its an opportunity to display and share the love of Christ with a non-believer.
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Tony, we're getting off topic but, with all due respect, this issue still isn't about your "IMO". I take it that, even if you as fundamentalist Christian subscribe to the immorality of homosexual conduct and gay marriage, you would still not withhold business services from gay people. I have predicted that the vast majority of religious people would act the same as you, and that this is one practical reason why the entire opposition to this statute is a trivial tempest in a teapot.
However, there still are many religious people who don't share your IMO. They have their own IMO, which may include refusing government compulsion to provide products and services in circumstances that, in their IMO, violate their religious precepts.
The issue, which you are Pharisaically avoiding, is whether those religious people (such as Notre Dame University, the Little Sisters of the Poor, Liberty University) should have an exemption from that government compulsion based on the Free Exercise of Religion Clause.
This societal legal issue doesn't disappear for all those people, and for the rest of us, just because you personally wouldn't resist the government compulsion. With due respect, your quoted comment sounds solipsistic.
How do you react to this realistic example. A fundamentalist Christian happens to believe abortion is an intrinsic evil. He owns a drug store. The government passes a law requiring all drug stores to sell abortion-inducing drugs and devices. The owner believes that to do so would violate one of his religion's most important moral principles, the sanctity of life. Should this person be able to go into court and claim exemption from the law based on the Free Exercise of Religion Clause of the federal or state constitution?
You don't have to answer. The universal answer in all jurisdictions is a resounding YES.
The second question is whether the court that hears the case should review the compulsory law under the strict scrutiny standard or some lesser standard. That is what this statute is about, and all it's about. |
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GlennMacGrady
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| Posted: 03/27/15 5:38 pm ::: |
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| pilight wrote: |
| justintyme wrote: |
| pilight wrote: |
| justintyme wrote: |
| The idea of a corporation being considered a "person" was foreign to them. |
This is certainly not true. Corporations have been considered people under the law since at least 1886 (Santa Clara vs Southern Pacific Railroad). |
Hmm. I thought that Citizens United expanded constitutional protections (free speech) to corporations and that expansion played a significant role in the Hobby Lobby desicion. |
Expanded, perhaps, but the concept of corporation as person is far from new. Even the case I cited above isn't its first mention. Dartmouth College v. Woodward (1819) and a few others touched on it as well. |
In addition to the cases cited by pilight, the federal Dictionary Act, which is the very first federal law on the books, says:
"In determining the meaning of any Act of Congress, unless the context indicates otherwise—
"the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;"
Two related issues were perhaps more novel in Hobby Lobby:
1. Whether a for-profit corporation as well as a non-profit corporation can be a person. The Court said yes.
2. Whether a corporation can have a religious belief. The Court said yes, but only if it is a small and closely-held corporation. That's somewhat ambiguous, but it's very clear that a widely held corporation can't rely on the Free Exercise of Religion Clause as a defense to governmental compulsion.
A state statute such as Indiana's must be compatible with Hobby Lobby's holdings re corporations. |
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norwester
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| Posted: 03/27/15 5:51 pm ::: |
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I don't know the official name of the cases (nor really how to quickly look them up), but this article covers mostly the Oregon case against the cake baker, and references the photographer in New Mexico and a baker in Colorado, all who lost their cases based on state non-discrimination statutes (it seems to me). There was also a florist here in Washington State.
Oregon ruling really takes the cake -- Christian bakery guilty of violating civil rights of lesbian couple
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PUmatty
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| Posted: 03/27/15 6:12 pm ::: |
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The politicians in Georgia who are trying to pass a similar law have no problems demonstrating exactly what it is for.
http://www.slate.com/blogs/outward/2015/03/27/georgia_legislators_admit_religious_liberty_bill_is_about_discrimination.html
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| But if anti-gay conservatives have any intellectual integrity, Thursday’s Georgia dispute should put an end to this charade. Jacobs, the representative who introduced the anti-discrimination amendment, is no flaming liberal; he is a moderate Republican who was legitimately concerned that a broad measure protecting businesses’ “religious exercise” could function as a license to discriminate. If Georgia’s religious freedom bill truly wasn’t designed to legalize discrimination, this amendment would have been utterly uncontroversial. Instead, it spurred heated opposition from conservatives, who refused to support any religious liberty bill that explicitly forbade discrimination. |
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justintyme
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| Posted: 03/27/15 8:12 pm ::: |
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| PUmatty wrote: |
The politicians in Georgia who are trying to pass a similar law have no problems demonstrating exactly what it is for.
http://www.slate.com/blogs/outward/2015/03/27/georgia_legislators_admit_religious_liberty_bill_is_about_discrimination.html
| Quote: |
| But if anti-gay conservatives have any intellectual integrity, Thursday’s Georgia dispute should put an end to this charade. Jacobs, the representative who introduced the anti-discrimination amendment, is no flaming liberal; he is a moderate Republican who was legitimately concerned that a broad measure protecting businesses’ “religious exercise” could function as a license to discriminate. If Georgia’s religious freedom bill truly wasn’t designed to legalize discrimination, this amendment would have been utterly uncontroversial. Instead, it spurred heated opposition from conservatives, who refused to support any religious liberty bill that explicitly forbade discrimination. |
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Actions speaking louder than rhetoric once again. If the bill isn't going to allow discrimination there should be no issue at all explicitly stating so. This would seem the way to guarantee the most civil liberties for the largest amount of people.
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beknighted
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| Posted: 03/27/15 9:07 pm ::: |
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| GlennMacGrady wrote: |
| beknighted wrote: |
| GlennMacGrady wrote: |
| pilight wrote: |
| It makes no more sense now than it did when people were claiming religion as an excuse to refuse service to black people |
I'm genuinely curious. Can you identify any case where the Free Exercise of Religion Clause of the Constitution was held to justify an otherwise illegal refusal to service black people?
As I've tried to explain above, the only thing this proposed statute does is to specify which of two available judicial standards the Indiana courts must use when adjudicating whether a state law is constitutional under the FER Clause. |
Sure. Bob Jones University used to refuse to admit blacks on religious grounds, and once it started admitting blacks, refused anyone who engaged in interracial dating, also on religious grounds.
In any event, the purpose of these laws is quite clear, and it's not to protect religious freedom generally. It's to let people refuse to serve gays. |
Re your first paragraph: Name the "case" where a court allowed the Free Exercise of Religion Clause to allow otherwise unlawful discrimination against blacks. THAT was my challenge to Pilight.
You can't, and in fact, by referring to Bob Jones University, you are legally hoisted on your own seemingly politically biased petard. In the 1983 Bob Jones case, the Supreme Court applied the strict scrutiny test of Sherbert-Yoder -- that is, of the Indiana statute under discussion -- and held that the Free Exercise of Religion Clause does NOT allow admission discrimination against blacks. The Indiana statute would produce exactly the same result in Indiana state courts -- for blacks and for gays.
Re your second paragraph, shame on you for parroting completely misleading gay activist political talking points. Please explain how 97 U.S. Senators and a unanimous House of Representatives wanted to "refuse to serve gays" when they passed language identical to the Indiana statute in RFRA in 1993.
Again, you can't. The immediate trigger of RFRA then was to overturn Justice Scalia's opinion in Smith, which allowed Oregon to criminalize the use of peyote by Native Americans, and to force the federal courts to return to the strict scrutiny test of Sherbert-Yoder in future Free Exercise cases. It had nothing to do with gays.
The most recent use of RFRA by the Supreme Court was in the Hobby Lobby case, in which Obamacare's alleged abortifacient mandate was held to violate the Free Exercise of Religion rights of certain closely held small businesses. Nothing to to with gays.
Name one case where the strict scrutiny FER test of RFRA, or of any state's little RFRA, was held to invalidate a law protecting gays. If you can't, why would anyone be predicting -- much less hysterically asserting -- that such a case would arise in Indiana?
This whole thing is nothing more than uniformed legislators alarming even more uninformed voters via even more informed journalists, repeated by even more uninformed internet bloggers, about a fundamental religious right to freely practice religion, upon which this country was literally -- LITERALLY -- founded by Pilgrims and other religious groups seeking to escape the religious intolerance and tyranny of European monarchs. |
My apologies - I read your question for refer to an example of someone using a religious claim to support discrimination. I see now that you meant something different. However, I do think the Bob Jones case shows that people will engage in discrimination on religious grounds (real or spurious). What stops them is that the law contains penalties for doing so - an IRS regulation in the case of Bob Jones University - and a law that says that discrimination on religious grounds is okay enables that discrimination.
In any event, the Indiana statute is not identical to the RFRA. The most significant difference is that it permits individuals and businesses to use the RFRA-like defense in private law suits. The RFRA extends only to government actions.
I stand by the claim that the purpose of the bill was to permit discrimination against gays. For example, its proponents specifically cited examples of people who were sued for refusing to provide goods and services for gay weddings. Equally important, these laws have been pushed by opponents of same-sex marriage as a kind of rear guard action, so it couldn't be clearer why we're seeing them now.
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beknighted
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| Posted: 03/27/15 9:10 pm ::: |
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| GlennMacGrady wrote: |
| A state statute such as Indiana's must be compatible with Hobby Lobby's holdings re corporations. |
Actually, no. Hobby Lobby concerned a federal statute that governs only federal actions. State law could be different. There are lots of examples where state law differs from federal law, and sometimes appears to be contradictory, and yet the state law is valid.
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Howee
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| Posted: 03/27/15 11:47 pm ::: |
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| TonyL222 wrote: |
| Jesus particularly disdained the overly legalistic religious practices of the Pharisees. Those religious folk who pushed for this law are modern day Pharisees, in my estimation. |
"Amen!" to that, baby.
These deluded people are on the wrong side of history. A lot like the people who saw fit to stone adulterers, etc., in biblical times (or in ISIS times). Or hang black men who might look at white women, more recently.
Human decency eventually overrides the idjits who implement their precious religious beliefs to separate themselves from, or otherwise castigate, "the sinful" others. And all the pompous parsing of legalese can't make it smell like anything other than the ish it is: discrimination.
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TonyL222
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| Posted: 03/28/15 10:25 am ::: |
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| GlennMacGrady wrote: |
How do you react to this realistic example. A fundamentalist Christian happens to believe abortion is an intrinsic evil. He owns a drug store. The government passes a law requiring all drug stores to sell abortion-inducing drugs and devices. The owner believes that to do so would violate one of his religion's most important moral principles, the sanctity of life. Should this person be able to go into court and claim exemption from the law based on the Free Exercise of Religion Clause of the federal or state constitution?
You don't have to answer. The universal answer in all jurisdictions is a resounding YES.
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You ask how I react to your hypothetical, and then tell me what the "universal" answer is. If it were universal then we wouldn't be having this discussion.
My reaction is that an independent drug store owner should have the right not to carry any specific drug he/she chooses not to carry. That's not much different than say a Christian book store deciding not to carry books on Satanism.
But that is not the same as the issue being discussed. This case would be more like the drug store owner deciding he/she will not sell drugs to Muslims but will sell those same drugs to others. Public commerce with that excludes classes of people based on race, gender, religion sexual orientation, etc is wrong. Now of course there are business targeted toward a gender (Curves, for instance). But they don't accept some women but not others based on religion or sexual orientation.
Hobby Lobby was completely different and dealt with the obligation to provide a very specific health care coverage. Even then I believe it applies to "closely held" businesses (certainly a sole proprietorship). Personally, I agreed with the Ginsberg dissent. There are many medically necessary uses of birth control besides preventing pregnancies - and if a doctor determines it was a medical necessity then health insurance should cover. I don't believe that medical insurance should have to cover recreational (for lack of a better term) contraceptives, or male erectile dysfunction medication either.
But at least in Hobby Lobby, they wanted a universal exclusion from providing coverage for birth control. They were not looking to provide it to some, but not to others.
| Quote: |
| I have predicted that the vast majority of religious people would act the same as you, and that this is one practical reason why the entire opposition to this statute is a trivial tempest in a teapot. |
I'm not comfortable with a law like this even being on the books - even if NO ONE makes use of it.
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| However, there still are many religious people who don't share your IMO. They have their own IMO, which may include refusing government compulsion to provide products and services in circumstances that, in their IMO, violate their religious precepts. |
Well, that is obvious. But just as you like to point out the legal precedents to support you view, I pointed out the scriptural references to support mine. But the issue is not refusing to provide certain products and services. The issue is refusing to provide products and services to certain people. Two completely different things. The former is personal discretion, the latter is discriminatory.
You clearly have a deep understanding - and even a passion - for Constitutional law. But your presentations are mechanical and black and white - and without any deep thought, albeit long winded. Stare decisis is extremely valuable in that it gives us continuity, conformity, and a certain amount or predictability. But if it was the only means and measure of deciding a case then we wouldn't need judges. We could just plug it all into a computer and have it spit out decisions based on past decisions.
Things change. Societal conformity to right and wrong gets reshaped. If not, we'd still be operating under the Dred/Scott decision for example.
This is a discussion forum. I'd personally be more interested in what GlennMacGrady thinks rather than having you recite the outcome of cases. For just about every SCOTUS decision, there is a dissenting opinion (some of which are remembered longer than the majority opinion) from an equally talented legal mind. The Justices write their dissents for a purpose and some of them are much more interesting and telling than the majority opinions.
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caune
Joined: 18 Nov 2004
Posts: 17919
Location: Valley of the Bun
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| Posted: 03/28/15 6:14 pm ::: |
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| GlennMacGrady wrote: |
| beknighted wrote: |
I don't know about all of the other states, but my understanding is that this particular version of the law is intended to reach private transactions, while other ones (notably the federal version) are about interactions with the government. If that's correct, the breadth of this one is much greater than the others. |
Here's the Indiana bill, Beknighted:
http://iga.in.gov/static-documents/9/2/b/a/92bab197/SB0101.05.ENRS.pdf
You are probably referring to Section 9. In any event, please note that the prerequisites for both Sections 8 and 9 are:
- a governmental law that burdens the free exercise of religion
- some religious defendant who is making that claim or defense
- in the context of an adjudicative proceeding
- in which the strict scrutiny standard will be used to evaluate the claim exactly the same as if the government were a party, and in fact the government has an absolute right to intervene.
I'd be interested in how your "breadth" hypothesis would increase the supposed detrimental effect on gays. Or, if you feel Constitutional today, perhaps you could explain how it increases the positive effect on the exercise of religious freedom. |
Glen would this bill allow Muslims to not serve Jews or Christians to not serve Jews or divorced people or unwed mothers or sec offenders? Seems to be general enough you could claim all sorts of religious exceptions.
_________________
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Ex-Ref
Joined: 04 Oct 2009
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| Posted: 03/28/15 6:40 pm ::: |
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Let Pence and his fools have their law.
Put LARGE signs on the door or in the window of each and every business.
Pretty, bright, colorful, welcoming ones of the businesses that will serve everyone and black ones for those business that wish to discriminate. Then let's see how long before there are no more black signs.
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caune
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Barrister15
Joined: 09 Mar 2005
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| Posted: 03/28/15 8:53 pm ::: |
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All this legal mumbo jumbo is giving me a headache and bringing back law school flashbacks. I think I have PTSD.
Can't we just mock Indiana for being so ass backwards?
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caune
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justintyme
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