A Definitive Guide to Indiana's RFRA

Summary:

          RFRA laws enacted before the Supreme Court ruled on Citizen's United vs. FCC (2010) and Burwell vs. Hobby Lobby (2014) were passed under the assumption they could never be applied to businesses.  Those two rulings fundamentally changed the nature of RFRA and created their potential to undermine local LGBT consumer protections in states that lack comprehensive state-wide anti-discrimination laws.  RFRA laws are perfectly benign in states that have comprehensive anti-discrimination laws.  In states that don't, such as Indiana, they can be used to supersede local protections and allow businesses to deny the sale of goods or services to LGBT people.
         The Indiana congressmen and lobbyists who wrote and sponsored Indiana's RFRA did so specifically to allow businesses such as florists and bakeries to refuse to serve gay couples.  They proudly admit this.  Although the language of the Indiana law is similar to most other versions, the differences that do exist all strengthen the law's ability to protect businesses from discrimination claims.


1) The federal version of RFRA was signed by Bill Clinton in 1993.  It was designed to help Native Americans.  It could only be used to help people (or what we are now forced to call "natural people" - the living, breathing types) resist action from government forces.  It couldn't be used to help businesses at all.  Before 2010, every version of RFRA passed was done so under the assumption that it could never be used to protect businesses - yes that includes the Illinois version that Obama voted for in 1998.

2) In 2010 the Supreme Court ruled for Citzens United vs FCC, and it suddenly became an open question as to whether an incorporated business with limited liability could have other first amendment rights beyond speech - specifically religious rights.  This was a hypothetical question until 2014 when the Supreme Court cited the federal RFRA in ruling that Hobby Lobby could deny birth control coverage to it employees.  After that ruling, Republican groups began aggressively exploring ways RFRA-style laws could be used to allow businesses to discriminate against minorities.  The extent to which RFRA laws could actually do this was questionable because, in almost all versions, it uses language such as, "the government can burden someone's expression of religion if it has a compelling reason to do so".

3) What constitutes a compelling reason has never been fully decided.  It is almost certain that RFRA laws could not be used to discriminate against people based on race, sex, age or national origin because the federal government already has laws protecting those classes.  However, the federal government has no protections for people based on sexual orientation or gender identity.  So, in a state that has no state-wide protections for LGBT people (like Indiana), a court could conclude it has no compelling interest in protecting them.  That is why RFRA has become an LGBT and why it is only an issue in states that lack state-wide discrimination protections for LGBT people.  Such laws have become a potential means for Republicans to supersede local LGBT protections and furthermore are a symbol of hatred directed at LGBT people.

4) This is exactly what is happening in Indiana.  We are a state that has no state-wide protections for LGBT customers, but we do have such protections at the local level.  We are also a state where a gay marriage ban has recently been ruled unconstitutional and a proposed amendment had been abandoned.  The primary forces involved with both the gay marriage ban amendment and RFRA are two powerful Republican non-profit groups, The Indiana Family Institute and Advance America, along with many state senators and representatives affiliated with them.  The author of Indiana's RFRA, Dennis Kruse, was also the author of Indiana's gay marriage ban amendment and a long-time affiliate of both The Indiana Family Institute and Advance America.  Mike Pence is also a close affiliate of these two groups.  The Indiana Family Institute is run by Curt Smith.  Advance America is run by Eric Miller.

5) After the gay marriage ban amendment was abandoned, Smith, Miller, Kruse, Pence and others began working on RFRA laws as a means of allowing businesses to refuse to serve gay couples.  This was their publicly stated purpose.  These men are on record numerous times admitting that this was the purpose of the bill.  Eric Miller's Advance America website STILL admits (proudly!) that this is the purpose of this law.  Mike Pence spoke with George Stephanopoulos today to clarify the meaning of the law.  Stephanopoulos asked him, point blank, if the law is suppose allow businesses to refuse to serve gay couples, citing Eric Miller's website, and Pence refused to answer.

Here is the by-line of the Indiana RFRA showing Dennis Kruse as the author:














Here is Dennis Kruse's Indiana Senate Bio showing his long-time affiliation with Indiana Family Institute and Advance America (Look under 'Activities'):

Here is Advance America's website congratulating Pence and Kruse for getting the law passed:



Here is the picture of the bill's signing with Pence directly flanked by Curt Smith, Eric Miller and Dennis Kruse (Kruse is old guy on Pence's direct left obscured by text boxes):




Here is the interview with Stephanopoulos:




So when Mike Pence (or anyone involved with passing this law) tries to say it isn't about denying services to gay couples, he is lying.

7) Although Indiana's RFRA is similar to most other versions, the differences that do exist all all strengthen the law's ability to protect businesses from discrimination claims.  An excellent summary of these differences can be found here:

http://joshblackman.com/blog/2015/03/26/comparing-the-federal-rfra-and-the-indiana-rfra/

6) While repealing Indiana's RFRA would prevent the subverting of Indiana's local LGBT protections, it isn't necessary or sufficient to protect the rights of all Indiana's LGBT people.  RFRA laws can only be used to legalize discrimination against classes of people who's rights are not already protected by state anti-discrimination laws.  Hence the more important step for Indiana to take is to make LGBT people, and all classes of people, protected from discrimination at the state-wide level.

Lines (post 19)

I want to share my values and beliefs, but I am afraid.

Our beliefs are personal and expressing them leaves us extremely vulnerable.
They inform our sense of identity.
They establish and maintain our membership within groups.

If there is significant conflict between one's beliefs and those of the groups to which one belongs, a dilemma ensues: if one suppresses one's beliefs to more comfortably exist within groups, anxiety, self-doubt and loss of self-esteem can result.  However, if one does not suppress their beliefs, interpersonal conflict, rejection and exclusion can result.

Where is the optimal path here?
Is there a middle way?

Unfortunately, I don't see one.
I think such individuals must weight the discomfort of keeping their beliefs suppressed against the speculative risk or reward of making them known.

My hypothesis is that, in most cases, the rewards of making your beliefs known will far outweigh the risks.
At least, that is my hope.

I hope that in sharing one's beliefs one will eventually find others who share compatible beliefs - and such people may give each other a real opportunity to find community.

My fear is that we live in a world where the strongest senses of identity are built upon belief or disbelief in God, and the strongest lines of community and group membership are drawn along religious (or anti-religious) boundaries.  

Is there a way to express one's beliefs on God without alienating those who disagree?

Is there a way to be welcoming of differing views without falling into moral relativism?

At times in my life I have believed in God.  At other times I have been agnostic/atheistic.
I've believed in many different kinds of Gods, Christian, Hindu, pagan, my own bizarre amalgamations of strange loops of technological singularities.  My concept of God has changed drastically throughout my life and I can't promise it won't change again in years to come.

I do not need to share a belief in God with someone in order to commit myself to them within the context of a community.

But I do need to share something.  I cannot join a community of ISIS members.  Nor could I join a community formed by the Westboro Baptist Church.  There are some lines I simply will not cross.

People are on the other sides of those lines if they:

Believe that it is OK to hurt people for any reason other than defense.
Believe that it is OK to steal from people for any reason other than defense.
Believe that it is OK to lie to people for any reason other than defense.
Believe that it is OK to be selfish, greedy, egotistical, lazy or irresponsible.
Believe that it is OK to have slaves or servants.
Embrace racism, sexism or homophobia.
Hate education.
Hate logic, science or technology.
Hate religion.

This is a list of my guiding principles.  It is not necessarily a complete list or an unalterable one, but it's a fair representation of the morals I try to live by.  It separates me from both religious extremists and moral relativists.  Where does the list come from?  I don't know.  Did I just make it up?  I guess, but I do not see it as an arbitrary list.  Rather I see it as working hypotheses, a heuristic, meant to keep me safe.  Maybe it keeps me a little too safe.

Sharing Beliefs (post 18)

I have made the observation that I and most people are intentionally trying to maximize rewarding experiences.

In doing so (or attempting to do so) we come up with and employ numerous theories and strategies.  And while many of these may be unconscious or unrecognized, others are explicitly adopted and endorsed.  The type of theories and strategies one praises says a lot about who one is.

For myself, although the articulation changes, I assign great importance to strategies such as:

• Orienting one's life, as much as possible, to causes, goals and entities greater than oneself
• Striving to derive one's happiness from the happiness of others
• Searching for and pursuing overarching purpose
• Seeking fellowship and community

In this I am not unique.  Similar lists find prominent places in many different religious, philosophical and psychological programs.  Hedonists and rugged individualists may reject the above strategies, but I think most people would have at least a neutral if not positive view of them.

Among the people who most strongly agree with these statements, there are still bitter, violent disagreements over the nature of the goals, causes and purposes that people should be uniting behind.

This is ironic but it also makes sense.  People who seek unity with others are more likely to find unity with others - but only among those who hold compatible beliefs.  They are more likely to find tension with those with incompatible beliefs.

This leads us to a set of alternative choices:

1) Not holding strong opinions about our purpose, and thereby being easy to get along with, but perhaps missing out on the experience of commitment to a community or the fulfillment of greater purpose.

- or -

2) Embracing strong beliefs about our purpose and committing oneself to a cause, but thus inevitably creating tension and possibly even violence with people who disagree.

These options are clearly two ends of a spectrum, and, as foreshadowed in earlier posts, I see the optimal path as lying closer to the middle than to the extremes.  I believe is possible to find a balance where one can hold beliefs about our purpose strongly enough to help one commit to higher causes and to a community, but not so strongly that one would lose humility or that one would feel the need to hurt or to force one's beliefs on those who disagree.

Take, for example, two hypothetical people - one holds the sincere belief that science is evil, that it is literally the work of Satan, and that we should not trust scientific institutions - the other holds the sincere belief that God's purpose for us is inextricably tied to using science as a means for learning more about the world.

Both of these individuals face a very similar set of problems.  Should they share their sincere belief with others?  Or should they keep it to themselves?  If they tell others they risk triggering tension, rejection and, potentially, violence.  If they keep their belief to themselves, they may feel they are being dishonest with themselves or others.

The optimal solution would be for such individuals to share their beliefs in a way that is sensitive, venerable and respectful.  If you share your beliefs and you aren't trying to persuade or convert anyone - you are just trying to share something important about yourself - then you are not the cause of any tension, conflict or violence that may result.

Fear of Oneself (post 17)

You cannot create community if you are afraid of yourself.

I know this through experience.

Being afraid of yourself means being afraid of making yourself a target for others' ire or jeer.
This fear is not irrational.

You live in a gigantic pack of murderous animals.
Even if you have no intention of harming or insulting or annoying any of them, you inevitably will.

People will retaliate against you.  People will reject you.  People will mock you.  People may potentially do far worse.

If you are too afraid of this, you risk becoming unwilling to say who you are - what you value, what you believe, what you think your purpose is.  Either that, or you risk prematurely going on the offensive and deriding, mocking or rejecting others before they have the chance to do the same to you.

Either way, you become impaired with respect to establishing deep connections.

Throughout most of history this wasn't a great problem - because most people lived in communities where almost everyone already shared the same world-view.  This is rapidly becoming no longer the case.

In places where people of different cultures interact for purposes of commerce, it has been considered polite to refrain from discussing religion and politics.  That's fine for commerce, but it is a huge impediment to finding or establishing communities.

There is the added problem of proselytizers and missionaries - those who impose their views on others.  Such people impede the formation of new communities as they add an extra element of fear to those who would broadcast their beliefs - the fear of being mistaken for one of them.

In my last post I spoke of the importance of balance.  We can apply that lesson here.

Being unafraid of yourself requires its own kind of balance - a path between extremes of hiding your beliefs, insulting others, or trying to make converts.

Somewhere there must lie a space where one can affirm to the world, "this is who I am", without hostility or ego-centrism, but as a message.

I am alive.  I am looking for those who'd live with me.

The Importance of Balance (post 16)

I value diversity, but I also value searching for common ground.
I value freedom, but also commitment to common goals.
I value power, but also humility.
Competition and cooperation.
Wealth, but more so charity.
Truth and uncertainty.

We continuously search for optimal paths for ourselves, our families and the world.
In this search we face a multitude of trade-offs and contradictions.
Our choices are rarely binary - they most often include a spectrum of options.
The optimal path almost never is found on the extremes or in the exact center - but those are the most obvious places to look, and too often they are the only choices we bother to consider.

Fulfilling our purpose requires balance.
Balance is never accomplished - because it never remains in one place.

Your path is discovered by moving, walking, one step in front of the other.
Walking holds a wonderful lesson concerning balance.
Walking is a process of repeatedly losing one's balance, then recovering it, only to lose it again.

On my walk I am searching for my purpose.
I am also searching for something I believe is deeply connected to that purpose - community.

Community is many things.
It is people living together, more or less, in a common space.
It is people searching together, more or less, for common values.
It is people moving together, more or less, towards common goals.
It is giving up some freedom and some independence in order to experience something greater than yourself.