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Department of Asshole Amplification - Blather. Rants. Repeat.
A Møøse once bit my sister ...
Department of Asshole Amplification

I've finally downloaded Semagic to this computer, so I don't go losing entries like I did at least twice in the past week. I'm not going to completely recreate the browser-eaten post from last night about the homophobic new law in Indiana that I railed at, in a much shorter version, after it got eaten, but I did want to repeat at least some of the Actual Legal Analysis that died in the crash- particularly in the context of the talking point that many, including Mealy-Mouth Mike Pence and the Moonie Times, have been resorting to in reaction to the horribly bad publicity this law has gotten.

We're not intending to discriminate, they say. We're just doing the same thing that a bunch of other states, and even the Clinton-era federal government, did with their OWN Religious Freedom Restoration Acts.

Okay, that's not a real quote. But this is, from Mealy-Mouthed Mike's own mealy mouth:

"For more than 20 years, the federal Religious Freedom Restoration Act" -- which was passed during the Clinton administration -- "has never undermined our nation's anti-discrimination laws, and this law will not do so in Indiana either."

That sounds nice- but just calling a new law the same thing as an existing one doesn’t make it the same. I went and looked at both of them, which is what we lawyers do. The federal law cites, and was passed in express reaction to, the “peyote case” from the U.S. Supreme Court that denied tribal members the right to use otherwise illegal drugs in a religious context.  Indiana’s new law does not mention that case, or suggest it as the “wrong” in need of “righting” by statute. 

Also, the Clinton-signed law defines “exercise of religion” co-extensively with the term as it is used in the First Amendment, invoking centuries of case law on what that term means; Indiana’s expands it beyond any such bounds:

As used in this chapter, "exercise of religion" includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.

So the would-be discriminator doesn’t have to cite a religious precept chapter-and-verse. There doesn’t even have to be a book- or creed, or tenet associated with a religion for one’s “religious freedom” to be in need of “restoration.” Pretty much, this will do it:

Finally, this “new” attempt at “restoration” goes way beyond the federal one in defining who may be repressed by horrors like two same-sex people falling in love.  The 1993 Act of Congress contained definitions of “government” and “state” that are substantially the same as what Indiana just did, but in addition to significantly increasing the scope of “religion” that must be protected in its “exercise,” the Hoosiers also included this incredibly broad definition of “person” under its version:

As used in this chapter, "person" includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

It begs the question of who, or what, CAN’T use this new destructive tool in the discrimination toolbox.  It’s even broader than what the Supremes allowed in Hobby Lobby.

So when you hear the talking point about how nothing bad will happen, because this is the “same thing” that Bill Clinton signed over 20 years ago, and why are we picking on Indiana? Because it's not, and we should be.  And if there's any doubt about it, watch the multiple times Mealy-Mouthed Mike refused to deny that the new law can be used to discriminate against LGBTs- and how he said that including such people as a protected class against such discrimination is "not on my agenda."

Well, guess what? Spending a fucking dime in your home state isn't on mine:P

2 comments or Leave a comment
angledge From: angledge Date: March 30th, 2015 08:07 pm (UTC) (Link)

Devil's in the details.

Thanks for the breakdown on how THIS RFRA is different from the Federal RFRA.

 photo Nevada Jones.jpg

Edited at 2015-03-30 08:52 pm (UTC)
captainsblog From: captainsblog Date: March 30th, 2015 11:40 pm (UTC) (Link)

Re: Devil's in the details.

Totally stealing that pic. Also stealing these additional compare-and-contrasts from today's Rude Pundit post. It's ruder than mine, but not nearly as much as compared to the one I did yesterday.
2 comments or Leave a comment