On March 26th, Indiana Governor Mike Pence signed the Religious Freedom Restoration Act.
The uproar would lead one to think such a law was brand new and have never been codified in law before. That would be wrong of course, 19 other states and the federal government have their own versions of the RFRA. The federal version was in fact, signed by President Clinton in 1993 after it passed the Senate on a vote of 97-3.
The moment it became law, activists, talking heads and journalists, without discussing the actual text of the law, began pontificating how gays could now be “discriminated against” in the state of Indiana. The histrionics hit a fever pitch, when Justin Nelson of the National Gay And Lesbian Chamber of Congress said businesses in Indiana would be allowed to put “Straights Only” signs up in their windows.
Gabriel Malor wrote an in depth analysis for the law and had this to say:
Is Indiana’s RFRA Like the Other RFRAS?
Yes and no. Indiana’s RFRA applies the same standard as in the other RFRAs that is described above: substantial burden versus compelling interest and least restrictive means. Indiana’s RFRA is a defense not just for individuals, but also companies and corporations. This is similar to the federal RFRA after Hobby Lobby, which also applies to individuals, companies, and closely-held corporations. But not all state RFRAs include companies and corporations. So that’s different in some states.
Indiana’s RFRA also protects individuals both in lawsuits or administrative actions brought by the government and in lawsuits brought by private parties. Some states, like New Mexico, do not allow RFRA to be used as a defense in litigation where the government isn’t a party. Also, the federal circuit courts are split about whether the federal RFRA can be used to defend against private lawsuits where the government isn’t a party. So that’s also different in some states and in some federal circuits.
Otherwise, it’s the same law.
You Didn’t Say Anything About The Gay Stuff.
That’s because the words “gay,” “lesbian,” and “sexual orientation” don’t appear in any of the RFRAs. Until now, the most controversial RFRA case was last year’s Hobby Lobby v. Burwell, which was about whether the federal government has a compelling interest in forcing religious business owners to pay for abortifacents. (It doesn’t.)
This big gay freak-out is purely notional. No RFRA has ever been used successfully to defend anti-gay discrimination, not in twenty years of RFRAs nationwide.
Despite the law being similar to legislation that has existed for over 20 years, it didn’t stop a bunch of misinformed “activists” from going into knee-jerk mode, demanding boycotts of the state. Apple CEO Tim Cook, in the pages of the Washington Post, writing an op-ed completely devoid of any facts and instead relying on emotional rhetoric about the Indiana law, that again, is not all that different from other laws in 19 other states and the federal law.
Law professor Josh Blackman lays out specifically what the law says:
This brings us back to the Hoosier State. Section 9 of Indiana’s RFRA provides that “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.” In the wake of Elane Photography, Indiana made explicit for its own law what the four federal courts of appeals and the Obama Justice Department had already recognized about the federal counterpart. Indiana’s RFRA does no more than codify that the private enforcement of public laws — such as discrimination claims — can be defended if there is a substantial burden on free exercise of religion. That’s it. And again, until recently, this provision was not particularly controversial.
University of Virginia law professor Douglas Laycock:
“The hysteria over this law is so unjustified. It’s not about discriminating against gays in general or across the board. It’s about not being involved in a ceremony that you believe is inherently religious.”
So knowing this, why would Connecticut Governor Dan Malloy sign an executive order banning state paid travel to the state of Indiana?
Connecticut Gov. Dannel Malloy signed an executive order on Monday barring state spending on travel to Indiana and any other state enacting legislation that protects religious freedoms but ultimately discriminates against gays and others groups.
Malloy, the incoming chairman of the Democratic Governors Association, called Indiana’s new religious objections law “disturbing, disgraceful and outright discriminatory.”
He, like so many others are falsely claiming the law allows for religion to be a basis for discrimination when it does no such thing. But it’s the excuse he had to go with when he was reminded the state of Connecticut has its own version of the RFRA – one that is in fact more strongly worded than the bill Mike Pence signed.
So what is Malloy’s angle here? Clearly it has nothing to do with principles and everything to do with politics. Specifically:
1. He’s angling for 2016. A Presidential run? Highly unlikely. Malloy doesn’t have the donor contacts others do and nobody really knows who he is. That said, it’s not hard to see him putting himself out there in the hopes of landing a role in the executive branch within the cabinet, should a Democrat win.
2. Helping to keep attention off Hillary – For the entire weekend and into today, the media has fallen over itself to cover this story. Meanwhile, we also learned during this same time frame, that Hillary’s emails and her server — which were both under subpoena at the time — are gone. The emails have been deleted and the server has been wiped clean.
Dan Malloy understands the game. In the end, this is not going to be an issue that will move people. Liberals would love for this to last into 2016 but this outrage will at some point be replaced by the next outrage and another outrage after that.
Today Pence announced that he has directed the Indiana legislature to “fix” the controversial law—not because of a flaw in the text, but because of the way the law has been perceived by the media and the general public. (This comes after several days of uncertainty over whether or not the governor would support modifications to the bill.)
Changes are in the works, but don’t expect that to stem the flow of criticism. Instead, expect the Democrats to continue to push this issue while Hillary laughs at being able to get away with potential violations of the law and as the Middle East is complete chaos.DONATE
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