Saturday, April 04, 2015

Religious Freedom Restoration Acts

The idea behind the federal Religious Freedom Restoration Act (RFRA) was to restrict government from interfering with religious freedom. The key section states  “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability."

The law allows an exception if two conditions are met.

(1) The burden must be necessary for the "furtherance of a compelling government interest."

(2)  The rule must be the least restrictive way in which to further the government interest.

In the Hobby Lobby case the SCOTUS found that (a) the closely held for profit corporation Hobby Lobby qualified as a "person;" (b) the contraception mandate of the ACA substantially burdened the "person's" exercise of religion and (c) the contraception mandate was not the least restrictive way to further the government interest.

In 1997 in City of Boerne v. Flores the federal RFRA was found unconstitutional with respect to the states but continued to be enforced for the federal government.

This decision led to 19 states issuing similar RFRA laws at the state level protecting religion from state and local government.

Fast forward now to Indiana and its version of the RFRA. If the federal government and 19 states already had such laws what was the big deal?

The big deal was that the Indiana law was different in two important ways.

The first difference was in Section 7 where the law defines a "person" as just about any conceivable entity including "a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint stock company, or an unincorporated association."

The second difference is while other RFRAs talk about obtaining appropriate relief against the government, the Indiana RFRA expands that to saying that a "person" "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."

So despite what all the right wing media has been saying this version of an RFRA goes way beyond protecting against government overreach. It is clearly crafted to allow businesses to refuse service to people they don't like based upon religion.

I don't know why this is a surprise to Governor Pence considering that the executive director of a rabidly anti-gay hate group helped draft the bill and was standing behind him when he signed it.

At any rate, despite waffling by Governor Pence, the Indiana legislature, undoubtedly feeling the heat, amended the bill to prohibit using it as a basis for discrimination.

Then there is the case of Memories Pizza in Walkerton Indiana who said flat out they would refuse to provide pizzas for a gay wedding (who has pizza at a wedding?) based upon the law.

The backlash caused them to close shop and supposedly go into hiding. But in the meantime over $500,000 has been raised in their support on so they'll be laughing all the way to the bank.

I don't know if this is a case of someone really stupid getting really lucky or one of the greatest cons in recent memory.

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