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01 April 2015

Freedom to Discriminate

The Religious Freedom Restoration Act (42 U.S.C. § 2000bb-1 et seq.) signed into law by President Clinton applied to actions by the federal government that infringed on the free exercise of religion, notably Native Americans who used peyote during religious ceremonies. The federal law also set the standard as "strict scrutiny" which means basically that to interfere with a religious practice, conduct, or act, the government must have a compelling governmental reason and the burden placed on the religious act the by a governmental rule or law must be the least restrictive way in which to further the government interest. The federal RFRA has never applied to the states and was found to be unconstitutional by the Supreme Court as applied to the states in 1997 in a case called City of Boerne v. Flores. As the federal RFRA does not and cannot apply to the states, states began enacting their own RFRA laws to prohibit government from infringing on the free exercise of religion.

As long as the RFRA or any state version of the RFRA applies only to acts that infringe on religion by the government, I have no problem with the law and most people do not have a problem with the law, as the First Amendment forbids actions by the government that (among other things) infringes on the free exercise of religion. Here is where Indiana ran afoul of the Constitution and infuriated a lot of people -- the Indiana law extends the protection to "persons" and since the Hobby Lobby decision by our Supreme Court, "persons" has come to mean not only human beings but also corporations and other businesses. Therefore, the Indiana version of the RFRA permits a "person" (individual or business) to exercise their "religious freedom" to the extent they are permitted to deny services to any other person whose beliefs, lifestyle, or any other characteristic, if providing services or a product to that person offends their religious views.

What this means, in plain language, is that a pizzeria owner can refuse to serve pizza to gay people and claim the protection of Indiana's RFRA statute in doing so as to serve gay people would offend their religious beliefs.

The federal RFRA was NEVER meant to provide a path to legalized discrimination at the state level. It protects the religious practices of people from governmental interference. It does not and can not protect "persons" (individuals or businesses) who choose to discriminate against others.

Much of the country was outraged by the Hobby Lobby decision and as Governor Pence and business owners in Indiana have come to learn is that the majority of people in the United States will not tolerate intolerance. We will not allow to stand a law that opens the door to legalized discrimination. We won't patronize the businesses of Indiana. Money talks and Governor Pence is back peddling fast, stating at a press conference that the law will be changed to prohibit businesses from discriminating against LGBT persons. In his own words, "Indiana is open for business" which I take to be a plea to halt the boycott of his state and "please continue to spend your money here." No, sir. We will not. Not as long as Indiana has legalized discrimination in place. Can we really make an impact by boycotting and shaming the bigotry? Just ask the owners of Memories Pizza.


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