There is also this: RFRA was introduced more than 20 years ago, and a lot of those state laws are of about the same vintage. That is nearly the span of an entire generation. And on the issue of LGBT rights, particularly, things have changed markedly in this country during those 20+ years.
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Haha… Thank you, That helped a lot…
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I like that Schumer is out front on this. It is important to remember why Congress passed RFRA - it was in response to a Supreme Court case - Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S. 872 (1990) - in which the Court held that Oregon could deny unemployment benefits to someone that used peyote in a ceremonial religious ritual. Of course, Smith was a Scalia case, and I have always felt that much of it was focused on the fact that it involved drugs and a degree of “otherness.”
RFRA was focused entirely on protecting individual rights against the government passing general application laws that would interfere with recognized religious practices without a compelling state interest. Whether that law is good or necessary can be debated (I am personally not a fan, but I can understand both sides). But, it was never about allowing private actors to be exempt from anti-discrimination laws, and to make that comparison is absurd.
Indiana’s law is clearly about one thing - allowing people to discriminate against those that they do not like for whatever reason. That is the context in which it was passed and the only reason why it was brought up now. It certainly was not passed to make sure that Indiana state laws are not imposed in a discriminatory way against Jews, Muslims, or practitioners of other non-Christian faiths. And, having spent a lot of time in Indiana, I can assure you that there will be no restrictions on anything seen as Christian.
I find the Indiana law particularly unfortunate because I have always found Hoosiers on the whole to be a very warm and welcoming group of people, even if they elect a bunch of crazies.
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Thanks for that, link, lgb. I’m not sure how many around here know this –
Though he’s justifiably accused of being too close to Wall Street, he also played a key role in persuading Elizabeth Warren to run for the Senate, taking the populist firebrand to dinner a few times after her bid to lead the Consumer Financial Protection Bureau ran aground.
– but it’s worth remembering, for future reference…
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Schumer’s not the enemy, nor was Reid, but Schumer has a more in-your-face persona than Reid,
If we already have federal legislation that does the same thing, why would Indiana need to introduce legislation at the state level?
Both laws are absurd!
Both need to go!
Need I remind you chuck, ours is a secular government. Division of church and state MUST BE ABSOLUTE!!
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"In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion;[4] therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”
Now however, religions are burdening our secular government with their bigotry!
I said at the time this was going to happen! Division of church and state must be absolute!!!
Stop screwing around chuckles! And he is going to be the next majority leader? Sigh…
If you are writing legislation for a state and want it to be “just the same” as existing federal legislation, you reference that federal legislation by name and statute index in your state law then say that those protections also apply to the state government, etc.
So far as I can tell, the Indiana bill is made from whole cloth, not referencing previous federal legislation at all. There is no legal reason to believe that they should be seen as equivalent, and lo and behold, when you look at what they actually say they are wholly different in intent and effect.
I am really not a big fan of the federal RFRA. It is a crappy law which has huge side effects like the Hobby Lobby decision. But don’t start pretending that your discrimination-promotion bill is the same as something else just because you used the same code language to describe it as the other thing used.
Unfortunately, Schumer is wrong about the scope of the Federal RFRA. No doubt the framers of that law never thought for-profit corporations had religious rights; they were only thinking of individuals. However, the scope of all Federal laws is controlled by the idiotic “Dictionary Act” 1 U.S. Code § 1 (the very first section of the U.S. Code!) which says:
“the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
That was a key point that led to the decision in Hobby Lobby. Note also that the Dictionary Act does not distinguish for-profit from not-for-profit corporations. It cannot be denied that not-for-profit corporations have free exercise rights, since virtually all churches in America are incorporated and they certainly have free exercise rights.
The drafters of the Federal RFRA in fact put into place a far more sweeping law than they imagined, and not just because they neglected the Dictionary Act. It is also the case that, although they believed they were merely restoring the status quo before Scalia’s Smith decision, prior Supreme Court precedent had not demanded “strict scrutiny” (a compelling interest/least restrictive means framework) for upholding a law that neutrally imposes costs on religious exercise. It was much closer to an ordinary balancing test. See, for example, Braunfeld v. Brown, 366 U.S. 599 (1961) (upholding a mandatory Sunday closing law applied to a store operated by Orthodox Jews, notwithstanding the fact that this could drive them out of business since they had to be closed on Saturday too, in observance of the sabbath. The minor inconvenience of maintaining a registry of religiously exempt stores was too much, the Court thought, to ask of the state as an accommodation–nothing close to a least restrictive means test).
Of course, it remains the case that antidiscrimination law is a compelling state interest and corporations should not be able to hide behind religion to express their bigotry. Such a principle knows no bounds. But to be safe, it is high time the Federal RFRA was repealed. Scalia turns out to have made a wise decision in Smith.