Where should there be "The right to refuse service"?

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. 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.

Looks like the governor's trying to play both sides on this:

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"Gov. Mike Pence: Change RFRA Law to Make it Clear Discrimination Won't be Allowed" from IndyStar:

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In his latest effort to clarify the Indiana's controversial new "religious freedom" law, Gov. Mike Pence called on lawmakers Tuesday to pass legislation clarifying that it does not allow business owners to discriminate in providing services.

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I would think this is unlikely to happen any time soon and that Pence knows it.

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 PoliticsExcerpt: 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?

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.

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 isle
Also added consequences of Randall case

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.

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. 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. 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.

"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." All of them, unfortunately. That's why we try to keep specific laws and independent courts that would modify that discretion. 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. 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. 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.

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

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The amendment to the Religious Freedom Restoration Act approved Thursday by both chambers prohibits service providers from using the law as a legal defense for refusing to provide services, goods, facilities or accommodations. It also bars discrimination based on factors that include race, religion, disability, sexual orientation, gender identity or United States military service.

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Indiana, Arkansas Amend 'Religious Freedom' Laws : The Two-Way : NPR

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(For a primer on religious freedom acts what they do and don't mean, NPR's Domenico Montanaro has this post from Wednesday)

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Lawmakers meeting in Indianapolis on Thursday are debating a proposed amendment to the law to include sexual orientation and gender identity as protected classes. If approved, it would be the first time either category had received such recognition in the state.

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Brandon Smith of member station WFYI in Indianapolis writes that the compromise also "adds language to clarify that the law does not 'authorize a provider to refuse to offer or provide services, employment and housing to any member of the general public.'"

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Meanwhile in Arkansas, Gov. Asa Hutchinson says he wants the Legislature to either recall the bill passed Tuesday or to pass a follow-up measure making it hew closely to a 1993 federal religious freedom law. Besides Indiana, 19 other states have similar laws, but in many, sexual orientation is already a protected class.

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Popcorn anyone?Enjoy

"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.

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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.

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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. 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.

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A draft circulated early Wednesday said that the new "religious freedom" law does not authorize a provider including businesses or individuals to refuse to offer or provide its services, facilities, goods or public accommodation to any member of the public based on sexual orientation or gender identity, in addition to race, color, religion, ancestry, age, national origin, disability, sex or military service.

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Assuming this new language survives, one might well ask what the point of the new law will be.

Southern Baptist Minister: Religious Liberty Law Permits Denial Of Some Services : NPRAvailable 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:

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INSKEEP: I've got one other question, and it involves a story from the time of desegregation of the United States - racial desegregation. And I don't mean to suggest here that these two situations are exactly the same, but they were two situations of great social change. And it involves the great sportscaster Red Barber, who was broadcasting on the radio at the time and was quite upset at first at the desegregation of baseball, Jackie Robinson coming to play in the major leagues. He said once that he thought about resigning, but then realized that his job was simply to report what was happening on the field. I wonder if there are people who are uncomfortable as a matter of conscience with gay marriage who might, with reason, take that position - that their job is simply to sell flowers, that their job is to take photographs, that their job is not to judge either way, that none of us are put on Earth to judge, actually, that their job is not to judge the people in front of them necessarily.

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Also, the first comment:

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Standing in my bakery listening to the articulate but hopelessly ignorant preacher say that my decoration on a cake is an exercise of free speech made me laugh out loud. I write, draw or design what my customer desires. It is NOT a reflection of my beliefs or an expression of personal ideology. ETC

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Moose

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.HBD

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.