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Bishop Ely signs move the NCAA out of Indiana petition

Bishop Ely signs move the NCAA out of Indiana petition

Posted by John B. Chilton


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David Murray

The one thing that I can add regarding the law in question in Indiana is that the law has the appearance of seeking something without saying just what it is. This is rather bad law regardless of what the law seeks to address. I believe this especially after watching the defense of this law. In each case, the supporter attempted to turn it as a positive. The nature of the law is denial with a base of being for religious freedom.

If anything, the Clinton terms had a number of LGBT issues addressed. In each case, we have found the same troubling quality of legal development from each of these laws. Religious freedom is but another case in point showing what occurs when law is built on poor legal theory. The purpose of law is to be focused on need, and best when the law fits the broad nature of the nation’s legal tradition. This law is especially troubling, and we can see the problem. Even the supporters seeks to cover over just what the law is about.

The fact is that in free societies we have the right to hold thoughts that are ours, but in our lives around others in society that right has natural limits due to those rights of others. It is similar to that classic ruling given expression by the Supreme Court – the right to free speech does not mean standing in a theatre yelling ‘fire’.

On the general tone of this discussion, I think honest and better than the case with issues today.

Philip Snyder

If a white baker can be “forced” to create a “Black Pride” cake, why can’t a black baker be forced to create a “White Pride” cake? Does the 14th Amendment still stand or are some animals more equal than others in our Animal Farm?

Each form of “controversial” speech will be deemed “hate” speech by someone. If the 1st Amendment only protects non-controversial speech, then it really doesn’t protect free speech. If it only protects religions we like, then it really doesn’t protect religion.

Freedom means that we are not going to be happy with the choices everyone makes. We can either be adult and mature about it and move on or we can become special snowflakes that can’t have our worldviews questioned (and note that I am not saying anyone here considers him/herself a special snowflake that can’t have their worldview questioned). The choice is ours. Are we going to find a way to live together in relative peace and toleration or will the majority roll over the minority over and over again? If someone says or does something that offends us are we going to scream and cry about how badly we are wounded or are we going to commit it to God and move on – letting God take care of the revenge/justice?

David Streever

“will the majority roll over the minority over and over again”; that’s actually precisely what anti-discrimination aims to prevent, and why a white baker baking a ‘black power cake’ is not equivalent to a black baker forced to bake a ‘white power cake’.

Whites wield more economic power than people of color, and ‘black power’ is a response to being marginalized, oppressed, and excluded. “White power” is an attempt to resist the efforts of people of color to escape oppression and marginalization.

I don’t think that it behooves any of us to pretend that the playing field is even, or to ignore the sheer quantity of data that establishes that racism and white supremacy is alive and well in America. Your examples are problematic, because they ask us to pretend that we live in an alternate universe where whites are not a vast majority economically, and where laws do not aid in the systemic oppression of people of color.

Jim Crow is over, but disparate mandatory sentencing laws that put young black men in prison for 10x the length of young white men still exist.

I don’t think it’s appropriate to frame the speech of oppressed racial minorities as infantile whining and crying. Claiming that your racial examples were equivalent, and then saying that it’s “special snowflake”-y to talk about it is problematic at best.

Personally, I leave divine justice to God; I don’t believe revenge has a place in this world or the next. I do believe that we are called, however, to work towards a juster world, and ignoring the very real power dynamics and racial disparities which differentiate ‘black power’ from ‘white power’ does not seem to bring us closer to a just world.

David Streever

John, your point about forced speech is interesting, and helps me parse some of my own assumptions/biases. I think I don’t think of forced speech as something that is preventable, at least in our current society, because of my own experiences with it.

As a consultant, I don’t get to refuse to support speech I may not agree with, and I don’t know anyone else who does either. Economic realities force us to accept jobs no matter the goals, opinions, or politics of the clients; it’s just how it is. Most of the folks I’ve worked with have had problem clients (clients who paid late, clients who requested unreasonable amounts of revision, clients who don’t communicate well & require multiple rounds of work to get anything done but refuse to pay for the extra time); when to drop these clients is a huge discussion topic. (Yes, freelance designers & developer have fascinating conversations :D)

We actually worry and agonize over dropping people who barely pay us; the luxury of refusing to engage in speech we disagree with isn’t one we have at all.

I’ve sat down in a diner and heard a patron making racist remarks in front of a busser or server of color; that person didn’t have the economic freedom to walk out or refuse service.

Granted, at least in my case, it’s primarily hypothetical (I haven’t ever had to write something I found personally offensive) but I’ve absolutely had to work for, and with, people whose behavior I’ve supported/enabled simply by my presence. I think that people at the lower rungs of the economic ladder are not going to be sympathetic to some arguments that relate the cake backing to support of ideas they don’t like because they are already in that position.

The RFRA won’t help low-income people avoid being compelled to support ideas they disagree with; I think a better law would look at the many daily violations of free speech for marginalized people and address that.

David Murray

Frankly, if there is an case for business having the right to deny service based on personal religious belief there could be made a case such a business has the duty to inform its public of this. However, I very much doubt such businesses would be willing to post this on their store front…

It is a sad age that religion is used in the public square to promote bias – and all in the name of faith.

Paul Powers

The mayor of Indianapolis has issued an executive order affirming the city’s anti discrimination policy for those who do business with the city.

Paul Powers

David, the federal RFRA isn’t inconsistent with the court decisions you’ve discussed above. These cases have to do with what the First Amendment requires or prohibits the federal and state governments from doing. For example, SCOTUS has held that a state can require all retail establishments to be closed on Sundays, even though that creates a hardship for observant Jews, Muslims, Seventh-Day Adventists, etc. But while the First Amendment doesn’t require a state to allow an exception for shopkeepers who observe the sabbath on a different day, it doesn’t prohibit states from making that accommodation either, at least as long as it’s across the board (a law permitting Jewish shopkeepers to be open on Sundays but not allowing Muslim shopkeepers to do so probably wouldn’t pass muster). Instead of repealing the federal–and most of the state–RFRAs, I think it would be better to amend them to clarify that they cannot be used to get around anti-discrimination laws.

I also think there’s a misunderstanding about what the new law actually does. It does _not_ legalize discrimination against LGBT persons in Indiana. Sexual Orientation and Gender Identity/Expression are not a protected class under the 1964 Civil Rights Act or under any Indiana statute I can find. So, unless there’s a local ordinance prohibiting it, discrimination against LGBT persons by places of public accommodation is odious, but it isn’t illegal, nor was it illegal before the law was passed. It also remains to be seen how courts in Indiana will apply the Indiana RFRA to such ordinances. We won’t know until someone files a discrimination complaint in a city with an anti-discrimination ordinance and the owner of the establishment raises the RFRA as a defense. It won’t necessarily be a slam-dunk for the owner. The court might find that the owner’s exercise of religion is not substantially burdened by the ordinance. Or it might uphold the ordinance as the least restrictive means of promoting the city’s compelling governmental interest in preventing its citizens from being discriminated against. Again, the best solution, as I see it, would be for the Indiana legislature to amend the statute to clarify that it cannot be used to circumvent anti-discrimination ordinances (but I’m not holding my breath).

David Streever

If it’s not inconsistent with the judicial history, why did they feel the need to pass it? Congress explicitly saw Employment Division vs Smith (1990) as being judicial overreach, and the law itself specifically targets language used in previous rulings.

It states that the general applicability of a law is irrelevant if it poses a substantial burden on an individual; this is completely at odds with Scalia’s opinion in ED v Smith, which stated the opposite; that the burden was irrelevant if the law was general enough in applicability.

In response, the Court reaffirmed their ruling in 1997, by declaring RFRA applications in states as unconstitutional, which is why we’re now seeing so many states pass their own RFRAs.

The Court & the legislators clearly see a conflict, or they wouldn’t keep addressing the direct language used by the other. I may have misunderstood you entirely, but I don’t think we can say that there are no inconsistencies or conflicts between the two sets of ideas.

As to what the law actually does: Speaker Bosma said that people would be allowed to put up signs saying ‘No Gays’. I think that, given the number of statements about this & the focus that the legislators have had in discussing LGBT discrimination, it is reasonable to conclude that the real intentions of the Bill (and the rationale for the vague language you allude to in your last sentence) is to discriminate against LGBT folks. We can’t ever really know what someone else is thinking, but reading the statements of lawmakers, I notice that they primarily focus to issues between certain Christians and LGBT folks.

Would the law protect the rights of a State employee to use peyote at work as part of a religious ritual? I don’t think so, so I remain convinced that the real point of the law–regardless of the Governor’s understandable denials–is to allow and permit individuals to discriminate against LGBT folks. I guess history will have the last say on how the bill will be used, but I don’t think that my theory is far-fetched.

Philip Snyder

If the law is used to stop serving gay people who come into a store to purchase goods or services to be delivered in that store, then I would agree with you. The gov’t can declare a compelling interest in protecting discrimination against homosexual men and women. No religion that I know of says we should not serve cake or flowers to homosexual people (or people of color or pallor or straight people etc.).

However, if the law is used to protect people from violating their consciences to support with their goods or services events that the proprietor finds sinful (thus, being materially involved in sin), then the gov’t and the plaintiff would have to show a much higher burden of proof. So a black baker could not deny service to all bald white people on the suspicion that they were skinheads. But that baker could refuse to provide the cake/confections to a skinhead banquet. Likewise a Jewish baker should not refuse to sell his/her goods to a Christian clergy person who comes into his/her establishment to buy kosher baked goods, but should be able to refuse to sell a cake to an Easter reception with the words “Jesus Christ is Risen” on it.

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