The hounds are not going to stop yelping, snarling and nipping. What we’ve seen in milder versions elsewhere and recently in extreme ones Indiana and Arkansas will continue. They are in the end expressions of the same anti-gay craziness that brought us one-man/one-woman DOMA-style laws and amendments throughout the country.
There is one key motivation — homophobia, and one key catalyst — perceived cleverness.
[If you are a podcast sort, you can catch my 19-minute rant on this instead here instead or also.]
Among the cascades of coverage, we are too tightly focused. There are also big themes and implications beyond the literal and details. Instead of looking beyond the obvious, we have largely the spurious and specious, including:
- Oh, gee, the 20 states with Religious Freedom Restoration Act (RFRA) laws and 12 more with them in the works are just copying the 1993 Federal version that courts subsequently ruled inapplicable to states.
- Honk. Wrong. That was before the SCOTUS’ Hobby Lobby and Citizens United decisions giving personhood to companies and their big shots. The 1993 law actually protects religious rights as of Native Americans to use peyote without fear of being fired for positive blood tests later. It offers true First Amendment shields to people, rather than encouraging people to harm, hinder and hurt other people under a ruse of felt sense of creed.
- Without such laws, those with deeply held religious (a.k.a. fundy Christian) beliefs will be persecuted, prosecuted, and even made to solemnize same-sex marriages against their will)
- Beyond risible. RFRA champions have been on the air, including NPR, claiming absolutely that in all the states with these statutes, no LGBT person has been denied products, services or any accommodation, and none ever will be. That’s asking to disprove a negative, but I’ll put good money that we’ll see these cases and that the states, particularly with Indiana-style versions, have offered solid protection civilly and criminally. Where there is no sexual orientation/identity protection, the burden falls squarely on the wronged people to prove the are not “burdening” those claiming religious offense.
- These laws are a First-Amendment expression. They only work to ensure the free exercise of religion.
- Forget that. South Carolina, Indiana and almost certainly Arkansas’ when it goes through play with the legal concepts of what imposes a substantial burden on someone claiming religious exemption, and with whether the state or federal government is party to any action or has a compelling interest in the matter. In short, this aspect also shifts the burden to any victim of discrimination, offering huge expense and time to prove wrongdoing.
Michael’s Crystal Ball
You are welcome to check me on these predictions. I see:
- Mike Pence has screwed himself out of a shot at being the 2016 GOP nominee for POTUS. He has been positioning himself as not as crazy as the other likely candidates, but he proved unable to shepherd his fellow Republicans in the General Assembly. He angered left and right. The country sees Hoosiers politics for what it is and that’s on him.
- Attacks on and end-runs around gay rights won’t stop. Just as and anti-equality types have kept up a relentless assault on same-sex marriage, even with the probability of a SCOTUS Loving-v.-VIrginia type of ruling soon, this First-Amendment ruse has become the weapon of choice of anti-gay sorts.They will push and pass these RFRA laws as they did the DOMA-style ones until courts beat it out of them.
- Cleverness (and concomitant smugness) will rule the legislative battlefield. As with passing DOMA laws and amendments to stymie marriage equality, RFRA laws patterned loosely on the 1993 version are too hard for anti-gay types to avoid. When they think they have latched onto legal tricks and loopholes, they’ll go for it. (Think Prez Clinton’s parsing of “what your definition of is is” and remember that it failed for him.) When lawyers/legislators who are sure they have outsmarted lefties and gays and such they have to go with it. No matter how bad the blowback is on Indiana and Arkansas, they won’t be able to check themselves.
This all bodes ill for our political discourse.
Our current configuration of conservative SCOTUS justices is extreme unlikely to back away from its corporations and their bosses are people dystopia fostered in Citizens United and Hobby Lobby rulings. Moreover, the SCOTUS has long been loath to mandate nationwide in traditionally states-rights areas. Finally, if as expected, the summer ruling legalizes US same-sex marriage, that probably is all the SCOTUS can handle.
One might think the heavy-handed obviousness we saw in Hobby Lobby should never happen, much less be replicated. If you pardon the expression, honest to God, we allegedly believe as a nation that our First Amendment prevents the huge blunders of England. We supposedly want to protect the religious from government, as well as the public from theocrats.
How is it what we have forgotten the second aspect of the First Amendment?
Notes for the research minded
The wording of the Indiana law is here.
The version the Arkansas legislature passed is here.
Content analysis by the WaPo is here.
Distinctions drawn by the NYT are here.
Pence’s reaction is a slow-motion political equivalent of the slightly racist older uncle being bewildered when everyone yells at him for his “jokes” at a family gathering. It’s as if the 21st century hasn’t made it to the State House yet.