When asked about the Indiana RFRA on Meet the Press today, Gov. Jindal said the following:
Let's remember what this debate was originally all about. This is about business owners that don't wanna have to choose between their Christian faith, their sincerely held religious beliefs, and being able to operate their businesses. Now, what they don't want is the government to force them to participate in wedding ceremonies that contradict their beliefs. http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_religious_freedom.html Longtime advocates of RFRAs would understandably object to this characterization as ignoring all the many less-controversial religious liberty claims that originally motivated the push for RFRAs, but in terms of the political impetus for the new state RFRAs, Gov. Jindal is undoubtedly correct as to what the debate is "all about." Accordingly, it seems appropriate that the coming debate in Louisiana won't be about a new RFRA or new RFRA amendment (like those considered in Indiana and Arizona) that would leave the answer to the wedding vendor cases unclear and subject to future judicial balancing. Rather, the coming debate in Louisiana will be over proposed legislation (introduced Friday) that would clearly give businesses the right to refuse marriage-related services and benefits to same-sex couples. Bill: http://www.nola.com/politics/index.ssf/2015/04/louisiana_religious_freedom_bi.html Story about the Bill (in which Doug is quoted): http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_fight_headed.html The Louisiana bill would, in Steve's words below, have the "benefits of clarity," but it would likely "cut too broadly" even for many who support carve-outs from antidiscrimination laws in the same-sex marriage context, as the language of the proposal would allow vendors to refuse service to interracial couples, interfaith couples, couples involving divorced individuals, or any other type of couple to which there is a religious objection. The legislation closely mirrors the proposed Marriage and Religious Freedom Act that was introduced in the last Congress and was sponsored by 103 Representatives and 17 Senators. It is also similar to an exemption proposal first offered by a group of law professors in 2009, although that group subsequently modified its proposal to limit it to small businesses and include a hardship exemption that would require services to be provided when no other business was available to provide them. The group has also suggested that states could make a race exception to the religious exemption if they are concerned about the exemption allowing discrimination against interracial couples. (The Louisiana proposal, like its federal counterpart, begins with the following finding: "Leading legal scholars concur that conflicts between religious liberty and changing ideas about the institution of marriage are very real, rapidly increasing, and should be addressed by legislation.") (note: the federal version explicitly says "same-sex marriage" in this finding, rather than "changing ideas about the institution of marriage"). I have argued that exemptions designed to allow businesses to refuse services and benefits to same-sex couples, such as the exemption proposed in Louisiana (and previously, in Oklahoma, Oregon, Washington, Minnesota, Kansas, South Dakota, Tennessee, and the U.S. Congress), would be vulnerable to challenge under the Equal Protection Clause. Others have argued that they would be vulnerable to Establishment Clause challenge. I suspect both arguments, however, would be strongly disputed by proponents of the exemptions. - Jim On Sun, Apr 5, 2015 at 10:45 AM, Steven Jamar <stevenja...@gmail.com> wrote: > The benefits of clarity in regulation are that it obviates the need for > litigation and it allows for compromise among disparate and often competing > interests as well as allowing for compromise of competing values. If a law > specifically exempts a well-defined business or entity, then the very real > costs of litigation to enforce rights either by the person excluded or by > the business seeking to exclude are avoided. If a law specifically draws > a line and includes specific examples or a limited exclusive list, then to > that extent people can understand and predict results without resorting to > expensive litigation and broad-brush misinterpretation (willful or > otherwise). A law exempting from public accommodation laws cake bakers, > photographers/videographers, and florists would be clear (in many cases at > least), but would cut too broadly — allowing race discrimination, gender > discrimination, religious discrimination, and so on. If the carve-out were > only for one type of discrimination — sexual orientation — and only for > that would the public accommodation law not apply, again one might have > relative clarity and compromise, but, of course, at a social justice cost > for some but with some accommodation of some who wish to discriminate on > that basis. > > Enter religious freedom acts (nothing restorative about them, is there, so > they should be RFAs, not RFRAs). Now it is all up in the air. A broad > exemption is enacted with no clarity, no predictability, and endless > opportunity for mischief from both sides and endless possibilities for > interpretation. And all the comcomitant social costs and litigation > costs. The state RFA approach allows the public accommodation to > discriminate on the basis of sexual orientation and puts the burden on the > victim to sue — which is time consuming and taxing financially, socially, > and emotionally. And it then puts the business owner to having to defend > the action on a fact-specific, individual-specific basis of convincing a > judge and jury that the actions were justified by a religious exercise > being substantially burdened. Well, Hobby Lobby made this easy — just > claim complicity with evil as your burden and you’re home. Then the > burden shifts to the victim — and not the state — to show the compelling > state interest and least restrictive alternative. So would now the state > need to be impleded as a necessary party for complete adjudication? Or > would it intervene? > > The Indiana sort of RFA carve-out is fraught with problems that a specific > provision is not. If the desire is to discriminate against someone on the > basis of their sexual orientation in some businesses, carve out those > businesses. Most will not discriminate either because they don’t feel the > desire to do so or because they see little point in excluding 10% of their > possible business clients. It takes religion out of the equation. > > But to some, this paints too broadly and so some who migh accept some > carve out push it back to religiously-based motivations — but that creates > all the problems noted above. > > In the end, this is another manifestation of the fight between liberty as > license and equality as inclusion. Equality and liberty can often be > mutually supportive at least for some — requiring non-discrimination in > employment on the basis of race is premised on equality — but makes the > historically excluded group more included and thus able to exercise liberty > more — they have more options, more choices, more liberty. > > But a cost of any such regulation is a reduction in choice and liberty for > some. Same is true for zoning ordinances, environmental regulations, OSHA, > and so much more — they all limit the liberty of the person who must comply > with them. > > Hence the concept of “ordered liberty.” Liberty does not equal license. > And never has. The fact that many people dislike the change wrought by the > Reconstruction Amendments to bring equality into the constitution at some > cost to liberty to discriminate against historically excluded and > marginalized groups does not invalidate the dramatic change those > amendments brought about. > > Including those who are LGBT favors the equality principle and gives them > more liberty. But it does cost some liberty to those who would continue to > exclude them — for any reason, including religious beliefs. > > Do you favor equality as inclusion or liberty as license? Or some > compromise, uncomfortable as they can be, between the two? > > As I argued about 20 years ago, we should recognize the legitimacy of the > restrictions on religious exercise as well as the legitimacy of claims > premised on religious exercise and reach principled compromises whenever > possible. And when that doesn’t work — sometimes the principles are not > sufficient to reach a principled compromise, unless the principle itself is > compromise between two first-order concepts like liberty and equality, then > simple pragmatism should rule. > > But such is not the world we live in at present for the most part. But > maybe Indiana and the responses of people to the misguided state RFA and > Indiana’s attempt to fix it are a hopeful sign that some sort of compromise > and working-out of intractable differences will be possible. > > Steve > > > -- > Prof. Steven D. Jamar > Assoc. Dir. of International Programs > Institute for Intellectual Property and Social Justice > http://iipsj.org > http://sdjlaw.org > > "I do not at all resent criticism, even when, for the sake of emphasis, it > for a time parts company with reality." > > Winston Churchill, speech to the House of Commons, 1941 > >
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