Tag Archives: RFRA

Inviting Pollyanna Back

Okay, I know this blog can be a downer.

I think a lot of the “what the hell is going on here” tone of too many of my posts is due to the fact that I’m a perpetually disappointed optimist. Had I approached life with lower expectations, I might have simply shrugged and moved on, but I have always believed that despite ups and downs, the human trajectory is ultimately a progressive one. Over the past several years, most of the available evidence has seemed to rebut that presumption, so you can see where I might get testy.

That said, the current “Pence mess” in Indiana, believe it or not, has made me cautiously optimistic.

Granted, our elected officials–and especially our utterly clueless Governor–have inflicted significant and totally unnecessary damage on my city and state. Granted, too, the fact that we elected these bozos testifies to widespread abandonment of political engagement by most thoughtful Hoosiers.

But the overwhelming anger and pushback over the passage and signing of the “Religious Freedom Act”–from citizens, from CEOs, from Universities, from mayors, from faith communities–is an incredibly positive occurrence.

Leave aside the contending analyses of what Indiana’s RFRA would or would not do. What is beyond dispute is that this measure was instigated by, and intended to placate, right-wing organizations smarting from their loss on the issue of marriage equality. Its anti-gay symbolism was intentional, and a negative response from LGBT folks and their allies should have been anticipated (although it clearly wasn’t).

The depth and breadth of that response, however, wasn’t foreseeable. Three thousand people turned out to a protest organized a mere two or three days before–many of them people I know who have never before participated in a demonstration. The business community, the civic community, religious communities, the media–rose up as one to say “This mean-spiritedness does not represent us. Hoosiers are better than this.” (And by the way, Governor, insisting that you oppose discrimination rings pretty hollow when you also oppose civil rights for LGBT folks.)

The NCAA and even Nascar have piled on.

Dare I let Pollyanna whisper in my ear once more? Might it be that a period of apathy and resignation, a period when nice people just bemoaned bigotry and “talked amongst themselves” on social media and within more inclusive communities, is coming to an end? Might we be seeing the last throes of the Christian Taliban–those who Molly Ivins memorably called “Shiite Baptists”?

Could we be entering into a “Network” age, when people are mad as hell and not going to take it anymore?

I plan to stay tuned…

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This Business Serves Everyone

The mis-named “Religious Freedom” bill is gliding through the Indiana General Assembly, where–despite polls showing the movement’s loss of members and power– lawmakers still tremble at the thought of crossing (no pun intended) the Religious Right.

The bill is a transparent effort to dignify discrimination by businesses offended–offended, I tell you–by the very idea of taking money for goods and services from same-sex couples. Of course, by its terms, it will allow establishments to turn away anyone they dislike based upon “sincere religious convictions,” so the potential for mischief is great, but everyone knows that the intended target of the measure are those uppity homosexuals.

Of course, as Erika Smith has pointed out, merchants can already discriminate against gays with impunity, since Indiana’s civil rights law doesn’t protect against discrimination based upon sexual orientation–so an additional “We’ll show you!” bill will basically serve to announce to the rest of the country that Indiana is a state where bigots hold sway.

We may not be able to muster sufficient rational candidates and voters to fill our legislative chambers with grown-ups and nice people, but that doesn’t mean reasonable Hoosiers don’t have recourse. I am delighted to learn of “Open for Service.”

Welcome to Open For Service! We are a grassroots campaign built to honor businesses that will not turn a customer away for any differences. To register your business, it is $10.00 for a sticker and web badge with the proceeds going to SCORE a national non-profit that mentors people who would like to start a business of their own. Join us, hang out and promote an “open minded economy!”

The stickers say “This Business Serves Everyone.”

One of the great virtues of capitalism is that consumers can choose where to spend their dollars. I patronize Costco rather than Walmart because I want to support businesses that treat their employees well and avoid those who don’t. I have the right to never set foot in Hobby Lobby, or buy sandwiches from Chik-fil-A–in short, a market economy offers me the right to make choices based upon any criteria important to me.

So if, as I fear, this piece of nastiness passes into law, I plan to patronize stores with stickers–and to ask hard questions before spending my dollars at stores without them.

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An Important Clarification

In a recent column in the Pittsburgh Post-Dispatch, Duquesne Law professor Bruce Ledewitz makes an important point about the Affordable Care Act and contraceptive coverage –a point that has gotten lost in all the language of victimization and self-righteousness: religious institutions are not required to provide contraception and other objected-to medical coverage under the Affordable Care Act. Instead, the religious institution is required only to forward a list of its employees to its insurance carrier, which must then provide the coverage itself if the employees want it, without cost to the employer.

That, boys and girls, is what has given rise to the assertion that the employers’ religious liberty is being violated–or “burdened” excessively, to use the terminology of the Religious Freedom Restoration Act (RFRA). RFRA was passed in response to a series of Supreme Court decisions rejecting claims that obedience to laws of general application–laws against drug use, zoning and historic preservation laws and the like– shouldn’t apply in situations where they prevented people from acting on their religious beliefs. (For example, the Court held that Native Americans could believe in smoking peyote as part of a religious ritual, but they couldn’t act on that belief.)

As Ledewitz notes, the claim that having to send a list to your insurance carrier “burdens” your religious exercise strains credulity.

To see how extreme this position is, imagine that the Obama administration had offered yet another compromise: that the religious institution need only offer a list of its employees to the government and the government would provide health insurance ecoverage. If religious employers had really wanted to compromise, they could have lobbied for this option. But, undoubtedly, they would have objected even to this requirement…..

Even closely held for-profit corporations have claimed exemption under RFRA, as if these corporations had religious consciences. The owners of these corporations assert that their corporations are alter egos of their human shareholders, when, in fact, the whole point of the corporate form is to shield the shareholders from the debts of the businesses. When it comes to money, the corporations and the owners are quite separate.

RFRA was never intended to operate in this maximalist fashion. Under the free-exercise-religion claims that RFRA replaced, religious plaintiffs usually lost their cases against the obligations of generally applicable laws. And even today most religious believers find ways to compromise with government programs and requirements with which they disagree. Catholic judges, for example, for years have granted divorces, even to Catholic couples. These judges have not asked for exemptions in these cases.

But instead of compromise and goodwill, the Affordable Care Act has provoked overheated rhetoric and over-the-top objections on the part of religious institutions and individuals, many of whom opposed the act from the beginning and are now continuing their political campaign in the courts.

Commentators have noted the hypocrisy of Hobby Lobby’s assertion of religious objections–it happily does business in China despite that country’s one child policy and forced abortions. Given the tenuous connection of employers to contraceptive coverage availability under the Obama administration compromise, it’s abundantly clear that the objections are motivated by politics, not religion.
But even if the objections were sincere, where would it stop? If your religion teaches that women are to be submissive, can you be exempted from compliance with EEO regulations? If your theology holds that blacks are inferior (as Mormon teachings did until the late 1970s), can you ignore civil rights laws? As Ledewitz warns,
 If RFRA really means what the plaintiffs in the Affordable Care Act litigation claim that it means — that religious believers are free to invoke the protections of the act no matter how minuscule their legal obligations appear to be and despite a commercial and even profit-making context — then RFRA is unworkable and will inevitably be repealed. If that occurs, religious believers will have inadvertently undermined the very religious liberty that they now invoke and that America rightly prizes.

American law has made numerous concessions to religious belief, but this is a bridge too far. As the old saying goes, pigs get fed–but hogs get slaughtered.
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