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Member Posts: 3945 From: Duluth, Minnesota, U.S. (West end of Lake Superior) Joined: Member Rating: 10.0 |
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Author | Topic: Where should there be "The right to refuse service"? | |||||||||||||||||||||||||||||||||||||||
NoNukes Inactive Member |
Is this law really such that it makes it okay for businesses to ban homosexuals, or are people making more out of this than it really is? Excellent question. Particularly so given the responses from the governor about how the law does nothing of the sort and how he is surprised about the backlash. I think the key is that the Indiana state government is going to avoid stepping in and applying a fix in a claim of discrimination if two criteria are met: 1. The putative defendant is claiming or demonstrating a religious belief that causes/requires him to discriminate. 2. The government has no compelling interest in preventing the discrimination. Given that Indiana offers absolutely no protection against discrimination based on sexual orientation, and that the Republicans who dominate Indiana's legislature are adamant that such protections will never be offered, I would suggest that 'no compelling interest' in this context is red state speak for 'screw you gay folks'. Note that the 14th amendment prevents Indiana from claiming that there is no compelling interest in protecting people from discrimination by race, ethnic origin, creed, etc.
Is this law really such that it makes it okay for businesses to ban homosexuals For some businesses. Depending on the good or service, some will find it easier to make a case than others. I think it would be difficult to use the law to avoid selling a gay man a hamburger, but much easier to avoid renting a house or an apartment to the same man. Edited by NoNukes, : No reason given.Je Suis Charlie Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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Jon Inactive Member |
Looks like the governor's trying to play both sides on this:
quote: I would think this is unlikely to happen any time soon and that Pence knows it.Love your enemies!
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Diomedes Member Posts: 996 From: Central Florida, USA Joined: |
Looks like the Arkansas governor is refusing to sign the religious freedom law on his desk until it undergoes revisions:
Arkansas governor signs amended 'religious freedom' measure | CNN Politics Excerpt:
Arkansas Gov. Asa Hutchinson says he does not plan to sign the religious freedom bill that sits on his desk right now, instead asking state lawmakers to make changes so the bill mirrors federal law. Stupid question: but if the federal law already exists, what is the purpose of creating a state law that essentially mirrors exactly what the federal law says? Isn't that redundant?
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Jon Inactive Member |
Stupid question: but if the federal law already exists, what is the purpose of creating a state law that essentially mirrors exactly what the federal law says? Isn't that redundant? Aren't there lots of laws duplicated at the state and federal level?Love your enemies!
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NoNukes Inactive Member |
but if the federal law already exists, what is the purpose of creating a state law that essentially mirrors exactly what the federal law says? Isn't that redundant? The Indiana's law does not simply mirror federal law. It contains additional provisions that do not exist in federal law. First, Indiana law provides an explicit coverage for private business accused of discrimination. Second the Indiana law provides for a cause of action against a private person claiming discrimination even when there is no government involvement whatsoever. Federal law does nothing of the sort. The law is clearly designed to target and eliminate things like photography studios being sued for discriminating against gay people. In fact the bill's sponsors have been quite clear about that. It looks like all of the Republican presidential hopefuls are bending over backwards to support Indiana's law. Good for them. Currently there is a lot of deceptive talk claiming that Indiana's law is not about discrimination and that it's just like federal law. Clearly both things are wrong, and I don't believe it will be too long before that becomes clear to everyone.Je Suis Charlie Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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dwise1 Member Posts: 5952 Joined: Member Rating: 5.7 |
Tonight on NPR's All Things Considered, there was an analysis of the federal law and what it covered and did not cover, etc.
Refer to npr.org for specifics. Refer to All Things Considered for 01 April 2015. Circa 1991, I was personally involved in the religious discrimination lawsuits involving Boy Scouts of America, Inc. As a non-lawyer, it was an eye-opener. Justice is justice and what BSA, Inc, was doing was blatantly unjust. But the USA does not have a justice system, but rather a legal system. You cannot plead against the blatant injustice, but rather must be able to cite a specific law that is being violated and be able to prove that that law was being violated. In the case of Randall v. Orange County Council, the applicable law that was chosen, the Unruh Civil Rights Act, spoke of "places of entertainment" (as I recall from my personal involvement). Therefore, the plaintiffs had to, among other things, establish that the Scouting Program was a "place of entertainment". Not truly representative of what Scouting actually is, but required for legal purposes. The court's findings that discrimination did indeed exist resulted in the boys being allowed to continue to participate in the program. When they had both fulfilled their requirements for Eagle, BSA was able to force the California Supreme Court to make a decision, which was that, while BSA did blatantly commit discrimination, they are a private organization and hence were not subject to the law. At the same time, BSA immediately and arbitrarily disposed of their other pending cases, totally bypassing their own officially published due process. I was only able to listen to the NPR report while driving in my car. What I gathered was that the federal statute's precise legalistic wording led to court decisions against the party claiming religious immunity, which in turn led to individual states taking the initiative to remove any such ambiguity. Edited by dwise1, : Clean-up in Unruh Act isleAlso added consequences of Randall case
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AZPaul3 Member Posts: 8564 From: Phoenix Joined: Member Rating: 5.1 |
Just some clarification.
The Indiana law does not overtly allow any discrimination but bars a city/municipality/town from creating ordinances that would "substantially burden a person's exercise of religion" without showing a compelling government interest to do so. So the scenario goes like this: City passes anti-discrimination ordinance protecting gays. Baker refuses cake for gay wedding. Gay sues baker based upon City ordinance. Indiana law allows baker a religious defense against the suit. Court must determine if the ordinance substantially burdened the baker's exercise of religion. Court must determine if the City had a compelling interest to bar this discrimination. The Indiana law also gives the City unconditional right to insert itself into the suit to present/defend what it may consider its compelling interest in the ordinance. Even with the involvement of the court in making the determinations of fact, and we are talking municipal courts here, the effect of the Indiana law can be clearly extrapolated as being open season on gays, as an unprotected class in Indiana, by businesses owned/operated by bigoted religious zealots. Which was its intent, regardless of legislators' protests to the contrary. The problem gets deeper on appeals through the state court system, and eventually the Federal system, in that without a clear binding law, like the Civil Rights laws, that bars discrimination against gays in furtherance of a compelling governmental interest these cases come down to classic First Amendment cases of religious freedom in the same vein as the use of peyote in tribal ceremonies. For the court watchers, this is going to get interesting.
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NoNukes Inactive Member |
The Indiana law does not overtly allow any discrimination but bars a city/municipality/town from creating ordinances that would "substantially burden a person's exercise of religion" without showing a compelling government interest to do so. Perhaps I quibble here over the meaning of the word "overt"... The law would prevent the creation of such an ordinance, but it is incorrect to suggest that it does not overtly allow discrimination. The law clearly provides a private defense in a civil suit for discrimination regardless of the level of state involvement.
The problem gets deeper on appeals through the state court system, and eventually the Federal system, in that without a clear binding law, like the Civil Rights laws, I don't think a statute is required to establish gays as having the same civil rights everybody else has. A clear ruling from the Supreme Court on the matter could accomplish the same thing and existing law would be applied.
The Indiana law also gives the City unconditional right to insert itself into the suit to present/defend what it may consider its compelling interest in the ordinance. If the city/state chooses to do so then yes. But what kind of right exists when the government has the discretion to ignore that right. What kind of right is subject to mere political expedience, particularly for an unpopular group. Isn't that exactly the same thing as saying that no right exists at all? That's really my characterization of the current problem. Every law abiding citizen has the right to be treated as a human being. I see that right as inherent in the constitution and applicable to the states via the 14th amendment. However the state of Indiana, like many states including the one I currently reside in, simply refuses to give a crap (read as recognize an interest) about the daily lives of a substantial number of their residents. And in the case of Indiana and North Carolina, such refusals are very popular. I understand that not everybody buys into my theory of human rights, but I find the tolerance of mistreatment of groups of people at the mere whim of others to be an unconscionable failing of a state. How is that NOT a compelling interest? It is because the state chooses not to be interested. It's like pre-1950 civil rights when there was a 14th amendment guarantee of equality for black folks that the government ignored under a legal fiction that any fool ought to be able to see as ridiculous. Je Suis Charlie Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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AZPaul3 Member Posts: 8564 From: Phoenix Joined: Member Rating: 5.1 |
... it is incorrect to suggest that it does not overtly allow discrimination. The law clearly provides a private defense in a civil suit for discrimination regardless of the level of state involvement. "No, it doesn't," says the state. "It protects the rights of religious people to act in accordance with their religious conscience. It stems the erosion of religious freedoms by the government."
But what kind of right exists when the government has the discretion to ignore that right. All of them, unfortunately. That's why we try to keep specific laws and independent courts that would modify that discretion.
It's like pre-1950 civil rights when there was a 14th amendment guarantee of equality for black folks that the government ignored under a legal fiction that any fool ought to be able to see as ridiculous. Now, you're getting there. What did this society have to do to finally resolve that "ought"? For gays, we likewise need a clear, unambiguous, undeniable statement of law.
I don't think a statute is required to establish gays as having the same civil rights everybody else has. People, states, governments, yes, even courts, often will not do what they ought to do, what they should do, until you hit them in the head with a clear, unambiguous, undeniable 2x4. Idealism aside, this is the only way the system, all of it, has ever been known to work.
I understand that not everybody buys into my theory of human rights... Indeed, my friend, that is the sad part. Hopefully, if we keep pushing this boulder up-hill we can accomplish at least some good until the next generation can take over to push even further against what's coming. You don't have to look very hard to see through the tea leaves, NoNukes. Loving Christianity's next victims of scorn, oppression and discrimination, already started, will be, not just Muslims, but any brown-skinned people who look like Muslims. Especially those who wear rags on their heads or black sheets over their faces. We can not be forced to serve and suffer devil-worshipers. Edited by AZPaul3, : No reason given.
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RAZD Member (Idle past 1435 days) Posts: 20714 From: the other end of the sidewalk Joined: |
People, states, governments, yes, even courts, often will not do what they ought to do, what they should do, until you hit them in the head with a clear, unambiguous, undeniable 2x4. Idealism aside, this is the only way the system, all of it, has ever been known to work. What I find potentially amusing is that an unintended consequence of these religious-free-to-be-a-bigot laws is that they may result in expanded civil rights to include implicitly the rights of the LGBT community. http://www.10news.com/...ve-changes-to-religious-freedom-law
quote: Indiana, Arkansas Amend 'Religious Freedom' Laws : The Two-Way : NPR
quote: Popcorn anyone? Enjoyby our ability to understand Rebel☮American☆Zen☯Deist ... to learn ... to think ... to live ... to laugh ... to share. Join the effort to solve medical problems, AIDS/HIV, Cancer and more with Team EvC! (click)
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NoNukes Inactive Member |
"No, it doesn't," says the state. It protects the rights of religious people to act in accordance with their religious conscience. It stems the erosion of religious freedoms by the government." "You lie state of Indiana", says anyone who can read the statute. The private cause of action NoNukes referred to is explicitly called out by the statute.
quote: The defense arises in a private suit between individuals without regard to government involvement. There is no need for the city/state government to pass an ordinance before the defense "God requires I discriminate" is available.
NoNukes writes: But what kind of right exists when the government has the discretion to ignore that right. AZPaul3 writes: All of them, unfortunately While your rights are not absolute, what we consider to be rights are not subject to mere government discretion. Such a thing is less even than mere privilege. Government can contravene your constitutional rights under a proper showing, yes, but not simply because such contravening is convenient.Je Suis Charlie Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member
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quote: Assuming this new language survives, one might well ask what the point of the new law will be. Je Suis Charlie Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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Minnemooseus Member Posts: 3945 From: Duluth, Minnesota, U.S. (West end of Lake Superior) Joined: Member Rating: 10.0 |
Southern Baptist Minister: Religious Liberty Law Permits Denial Of Some Services : NPR
Available there as both audio (7min17sec) and text transcript. Oddly, the minister repeatedly presented it as a freedom of speech issue, rather than a freedom of religion issue. One thing from host Steve Inskeep stood out to me as being illuminating:
quote: Also, the first comment:
quote: Moose
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herebedragons Member (Idle past 888 days) Posts: 1517 From: Michigan Joined: |
I heard this too, Moose. I thought he made a good point that no one should be forced to use his/her speech to support something he/she did not agree with. He used himself performing a wedding as an example, and I thought it was very sensible. And I was pretty much agreeing with him. But then he took that concept to wedding cakes... ??
I don't think this would be a bad way to frame this issue - not requiring someone to use their speech to support something they don't agree with, but then the problem is deciding what is considered speech in this context. Wedding cakes, flowers and the like, I don't think qualify. HBDWhoever calls me ignorant shares my own opinion. Sorrowfully and tacitly I recognize my ignorance, when I consider how much I lack of what my mind in its craving for knowledge is sighing for... I console myself with the consideration that this belongs to our common nature. - Francesco Petrarca "Nothing is easier than to persuade people who want to be persuaded and already believe." - another Petrarca gem. Ignorance is a most formidable opponent rivaled only by arrogance; but when the two join forces, one is all but invincible.
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jar Member (Idle past 424 days) Posts: 34026 From: Texas!! Joined:
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I think that the issue comes down to not treating all humans alike regardless of ones' personal beliefs.
The topic of a Jewish business closing for the Sabbath is often brought up in an attempt to equate that to the refusal to bake a wedding cake for a same sex couple, but in reality they are not even close to being comparable. In the case of the former the Jewish business still treats everyone, Jew and Gentile, the same. They are closed to the Jew and to the Gentile. There is no discrimination. In the later though not everyone is treated the same. The bakery refused service to just one class of people, those looking for a wedding cake for a same-sex marriage. Had the baker instead said "I will no longer sell wedding cakes because I do not approve of some marriages" then of course there would be no discrimination involved; same-sex couples and mixed-sex couples would be treated equally.Anyone so limited that they can only spell a word one way is severely handicapped!
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