Ken’s Take on the World


Healthcare: Privilege or Right?

As Republicans struggle to obtain enough votes in the US Senate to pass their version of a bill (Better Care Reconciliation Act) that was originally brought forward to repeal, and replace, the Affordable Care Act (ACA) much focus has been placed upon the economic costs and the personal costs to those who would be affected should this legislation become enacted into law.  As one who has paid attention to the debate over healthcare access for the past three decades, I have been thinking of a much deeper question that we should be asking of ourselves as it would, perhaps, better drive the debate over this legislation.  The question that each of us should ask is this:  Should healthcare be considered a privilege, a commodity, that should be available only to those who can afford such care or, should it be considered a necessary right for every person that must be protected, and assured by government?

 

When I have posed this question to those who express opposition to the ACA, the most common response that I receive is that healthcare should be treated as any other service that a person would seek out.  The most common support offered for this position is that every person receiving services should be required to pay for such services.  To bolster this claim, these critics argue that it is not fair to expect others to pay for services that they receive.  On its face this appears to be a reasonable argument that must be considered.  After all, you wouldn’t take your car to a mechanic and not be expected to pay for repairs or maintenance on your vehicle.  You don’t take your family to a restaurant and expect to receive free food, do you?  You wouldn’t call an air conditioning repair person and expect to not receive a bill for the parts and services provided, would you?  These criticisms appear to suggest that healthcare services and products are no different than whether or not your vehicle or your heating and cooling systems at home are functional.  This is a false and illogical argument.

 

When one dines out at a restaurant, one knows what they can afford and if they are unable to afford to dine at a certain establishment they simply eat dinner at home or at a less expensive restaurant.  When your air conditioner is on the fritz, if you do not have the money available for repairs, you will need to open your windows, use fans, or other methods of staying cool.  For those with underlying health conditions in which extreme heat is dangerous, communities provide cooling centers, or family and friends are often able to step in to provide temporary shelter until the air conditioning is repaired.  Even if a new central air system must be installed, the cost is almost always going to be less than $5,000 USD.  Many heating and cooling companies will also finance this amount to keep costs manageable.  Similarly, if you need repairs on your automobile, you can determine what are the most crucial and pay for those and defer other repairs until later.  Or, your community may have decent public transportation available.  Or, you may be able to car-pool to work or use a ride-sharing service.

 

Healthcare, unlike these other services, is not a commodity that can simply be delayed in many cases.  I have frequently likened the provision of healthcare as an essential service that must be available to every single person.  Similar to a community that provides fire departments and trained personnel to operate this life-saving equipment.  Or, law enforcement agencies that respond to safety or criminal complaints.  Or, military agencies like the Coast Guard who respond to emergencies on our nation’s waterways.  We don’t bat an eye when we are asked to fund these critical services.  As a society, we have come to realize these are critical pieces of infrastructure that exist for the benefit of each of us even if we never need to directly use these services.  Why, then, do we look at healthcare differently?

When I have attempted to discern how so-called conservatives continue to maintain the position that healthcare is a commodity, and not a right, in addition to the arguments about paying for services and the burdens of having to pay for those who cannot afford these services, they remind me that healthcare services are already provided to people in the nation’s Emergency Departments (ED) regardless of one’s ability to pay for such care.  This, then, implies there is, in fact, some existential right to healthcare.  When I point out this inconsistency in logic, one person actually mentioned that fewer (uninsured) people seek medical care as if this implies lower costs to taxpayers.  The problem with this (il)logic is that while uninsured individuals are far less likely to present to a primary care physician in the community setting, they are far more likely to present to an ED for treatment of conditions that can be much more effectively, and economically, managed in a community setting by a primary care physician.  This translates into significantly increased healthcare costs for all of us.  The average cost of an ED visit in the United States is nearly $2,200 based on a study described in “The Atlantic.”  Compare this to the average cost to a primary care provider (PCP) in the US which is only $100 based on an Agency for Healthcare Research and Quality (ARHQ) study by the Department of Health and Human Services (HHS).

 

A review of multiple studies has demonstrated that access to health insurance is correlated with significantly improved health outcomes.  The review, published recently in the “New England Journal of Medicine” (NEJM), documents that improved healthcare outcomes are especially notable among pediatric patients.  Further, this review notes that not only are healthcare outcomes improved, but other measures of quality of life, including educational achievement, are improved with access to health insurance.  Other studies have demonstrated the significant economic consequences associated with illness.  I am not only speaking of the direct costs associated with providing medically-necessary care, but the impacts that illness and preventable injury have on individual and societal economic stability and growth.

 

I believe we must frame the debate over access to health insurance as one of a necessary right that must be protected by government actions.  Only then, will we be able to determine the most effective means of financing healthcare in the United States.



Twinks and Trump

Today I read an Op-Ed in The Huffington Post regarding an actual group called, “Twinks 4 Trump.”  I learned there are actually two such things http://www.huffingtonpost.com/entry/im-a-gay-dad-and-heres-what-i-want-the-twinks-4-trump_us_57a469aae4b0ccb02372168d  One site is, apparently, a parody site with all photographs and the like.  The other is actually a group of younger gay guys who claim to be conservative who further claim to support Mr. Trump in his campaign to become the 45th President of the United States.  The founder of this second group is a young man named Lucian Wintrich.  He attempts to articulate reasons for being a, “conservative” and a supporter of Donald Trump here: http://www.advocate.com/commentary/2016/8/02/twinks4trump-creator-5-things-media-gets-wrong-about-gay-conservatives  The problem with his message, and I applaud, “The Advocate” for including this, is that Mr. Wintrich missed the memo that neither Mr. Trump, nor the Republican Party are conservative in any sense of the word.

 

Many Republicans are claiming that the GOP is the opposite of the Democratic Party.  They are correct as many who claim to be Democrats say the same thing.  The problem that supporters of the Grand Old Party miss is that the opposite of, “progressive” is not, “conservative.”  The antonym of progressive is actually regressive and this is what today’s Republican Party seeks to impose on our great nation.  This is a message they have honed and promoted over the past 50 years, long before Mr. Wintrich was even born.  Lucian Wintrich and another, “alt-right” golden boy, Milo Yiannopoulos, were not even born until after some of the biggest challenges facing the LGBT community had already been fought.  They reap the benefits of the hard-fought efforts of thousands of people who refused to back down in the face of bigotry, prejudice, discrimination, and violence.  I wonder if either of them have even read about Stonewall, Anita Bryant, the AIDS epidemic, Don’t Ask, Don’t Tell, Harvey Milk, Leonard Matlovich, ACT-UP, the Mattachine Society, and others who really paved the way for the lives they are free to lead today?  I will not sit idly by while the demagogues of the Republican Party seek to roll back all of the progress made to prevent discrimination and promote equality for all people.  I will not stand around while Republicans attempt to roll back the economic advancements that have occurred over the past eight years.

 

This phenomenon, that is the fallacy of a GOP that is a tolerant and inclusive political party, is not limited to this group of younger, mostly white, guys.  We have already learned the Republican Party Platform that was approved at this year’s Republican National Committee (RNC) convention is the most notoriously anti-LGBT platform in the party’s 162-year history!!  Another group that has been supportive of the GOP for years is the Log Cabin Republicans who have also failed to recognize the messaging they claim to support regarding smaller government and fiscal responsibility is not embodied in the principles or actions of the GOP today.  And yet, someone like Mr. Yiannopoulos proclaims Mr. Trump to be the, “most pro-gay candidate in history!”  While Mr. Trump is not the most anti-gay candidate in modern history, it is clear by his statements that he is not remotely, “pro-gay.”  At best, Donald Trump is apathetic to the concerns of the LGBT community.  He has promised to appoint judges who would reverse marriage equality and other non-discrimination measures that protect LGBT citizens.  I guess folks like Wintrich and Yiannopoulos think uttering the acronym, “LGBTQ” during an acceptance speech is proof the Republican Party has finally embraced them.  For the record, Mr. Trump’s use of this nomenclature was used in reference to an attack by a Muslim on a gay nightclub in Florida that left 49 people dead and many more wounded.  It should also be noted that Mr. Trump appeared surprised that no one on the convention floor booed at his use of this language.  This comment was not in support of LGBT people, it was designed to stoke hatred of Muslims!!  This is what was being applauded on the convention floor. http://reason.com/blog/2016/08/03/lgbtq-at-the-rnc-and-dnc

 

I can only hope that, “twinks” like Mr. Wintrich and Mr. Yiannopoulos come to their senses and realize there is no place at the table within today’s Republican Party for LGBT people.  The messaging of the party today is not one of inclusiveness.  It is about divisiveness, bigotry, misogyny, racism, xenophobia, and hatred.  There is hardly any reference to fiscal responsibility.  There has been no message of hope or tolerance.  I am happy that folks like Lucian and Milo can live their lives as they see fit and I truly hope they will never have to face the challenges faced by those who came before me and that my generation experienced.

 

I would challenge Mr. Wintrich and Mr. Yiannopoulos to articulate what they believe are the actual, “conservative” principles they believe they are supporting.  I look forward to seeing, or hearing, what they have to say on that.  I am pretty certain they will be limited to the bigoted, xenophobic, arguments espoused by the Republican candidate for President and these are not conservative principles at all.



Memorial Day 2016

On this Memorial Day, Americans gather together for barbeques and get-together’s with friends and family.  For many, it means a shorter work-week which is always nice.  For many families and friends this is a special day in which we come together to honor a loved one who paid the ultimate price in service to our nation.  Across the country, parades are held and wreaths are presented.  Graveyards in every state serve as the final resting place for those who gave their lives in combat zones across the globe in every war the United States has been involved in throughout history.

 

This is a tribute to a special group of military personnel.  For more than two centuries, one group of military members fought and died for their nation while hiding a very deep secret.  Gay and lesbian service members have fought, and died, in nearly every single conflict since the founding of our nation.  Because of the oppression and hostility they would face, including imprisonment, harassment, threats, and violence, these men and women, no less brave than their peers, were forced to live secret double lives.  Brave fighting men and women while in uniform and extremely discreet, closeted gay people in public.  To do otherwise put them at risk of discovery and other negative consequences.  Those brave men and women who made the ultimate sacrifice are known only to their family and friends.  Until now.

 

While the majority of lesbian and gay service members who were killed in battle throughout our history are unknown, the lifting of the military ban on openly gay service members has allowed the stories of contemporary service members to become public.  More importantly, marriage equality has permitted gay husbands and lesbian wives to collect pension and other benefits when their life mate is killed on the battlefield.

 

US Army Major Alan Rogers (09/21/1967 to 01/27/2008) was killed by an improvised explosive device (IED) while on a patrol in January of 2008 in Afghanistan.  He was the first known combat fatality know to be gay.  In 2005, his Master’s thesis discussed the failure of the military policy of, “Don’t Ask, Don’t Tell” (DADT).  His family states that they were unaware of his sexual orientation before he was killed.  Statisticians have estimated that at least 200 combat fatalities in the Iraq and Afghanistan theaters of operation were lesbian or gay.  http://www.huffingtonpost.com/aaron-belkin/gay-soldier-killed-in-afg_b_475559.html

 

Corporal Andrew Charles Wilfahrt is the first known gay service member killed in combat since the repeal of DADT.  He came out to his parents at 16 and at age 29 decided to join the Army.  He was 31 years old when he was killed by an IED on February 27, 2011.  He played piano and had scored a perfect score on an Army aptitude test. http://thefallen.militarytimes.com/army-cpl-andrew-c-wilfahrt/5837138 http://www.cnn.com/2011/US/07/02/gay.soldier.andrew.wilfahrt/

 

US Air Force Major Adrianna M. Vorderbruggen was married to her wife in 2013.  One of the first lesbian Air Force members to marry in uniform.  She was 31 when she, along with five other Air Force intelligence members, on December 21, 2015 by a suicide bomber in Afghanistan.  She is believed to be the first openly gay woman killed in combat.  http://www.startribune.com/minnesota-woman-among-six-americans-killed-in-afghan-attack/363317681/ http://www.military.com/daily-news/2015/12/23/us-military-brings-home-six-airmen-killed-in-afghanistan.html

Surely, there are many more stories of gay and lesbian service members who have lost their lives in service to their nation on battlefields around the world.  Not to mention the number of gay men and women who have been wounded in battle including the first US casualty of the Iraq war, Staff Sergeant Eric Alva.  This Memorial Day, as we remember all of those who died fighting for the United States, let us honor those, too, who fought a second battle in silence and secrecy against the very nation they served.



On Guns and Sense

In the wake of the latest mass shooting event in San Bernardino that killed 14 and wounded 21, including at least two police officers, my Twitter and Facebook feeds lit up with calls to enact more vigorous gun control measures.  This is a recurring theme in this country.  There is a mass shooting that captures the attention of the public, there are calls for more gun control, the calls go, mostly, unheeded, and the nation moves on until the next day or next week when the next mass shooting event rivets the nation’s focus on gun violence.

 

In the aftermath of the latest shooting, which baffled investigators for nearly four days before determining this was an act of terrorism, albeit, one of the more convoluted episodes I can recall, Congress finally attempted to take action.  Senator Dianne Feinstein introduced a measure that would close a loophole that currently permits suspected terrorists to legally purchase firearms in the United States.  This measure failed on a mostly party-line vote with all but one Republican voting against the measure and all but one Democrat voting in favor of the measure.  Following the vote, there was condemnation from gun-rights proponents that the measure would have stripped away due process rights from those seeking to purchase handguns.  This was the first time I had heard this suggestion made, and from my Twitter feed, this line of conversation picked up a bit of steam.

 

First off, let me say that Twitter is a difficult environment to try and have a coherent and reasonable debate with anyone on any issue, let alone one as complex and controversial as access to firearms.  Nonetheless, I engaged in conversations with several folks who supported the view that barring people on a consolidated FBI watch-list from legally procuring firearms was a violation of due process rights established under the 5th Amendment of the US Constitution.  I admit that I was baffled at this suggestion as this is the text of the amendment:

 

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” – See more at: http://constitution.findlaw.com/amendment5.html#sthash.VZehsmyM.dpuf

 

The gist of the Twitter conversation is that, as the right to, “bear arms” is an enumerated right within the Bill of Rights, being, “…deprived of life, liberty, or property without due process of law…,” means that blocking specific individuals from obtaining a firearm infringes upon their Constitutional rights.  The focus of this discussion, left unspoken by proponents of this position, is on the word, “liberty” suggesting that not being able to buy a gun deprives an individual of her or his liberty.  Now, I am not besmirching any of the participants of this line of thought as I am certain they are each patriotic Americans.  However, their line of reasoning is flawed.  Being limited to 140 characters, I was unable to effectively explain the errors associated with this line of thought.  It is clear, however, that their focus on depriving a person of, “due process” BEFORE denying a fundamental right is un-Constitutional.  This is an incorrect interpretation of due process as related to the purchase of firearms by an individual who has had their name placed on a watch-list of suspected terrorists.

 

It has been publicly recognized that this list compiled by the Department of Justice is flawed and there are names on the list that, most likely, should not appear on the list.  Other names, like at least one of the suspected shooters in San Bernardino, should probably be on this list.  Some elected US officials, children and infants, and deceased individuals names appear on this list as has been reported by numerous media outlets.  See: http://www.wired.com/2007/09/700000-name-ter/  http://dailycaller.com/2015/12/04/san-bernardino-shooting-suspect-not-on-terrorist-watch-list/

 

Critics of this list complain that due to flaws, the list should not be a bar to legally obtaining a firearm.  They state that the list is arbitrary and that people are not informed their name is on a watch-list until they attempt to engage in activity (such as attempting to board a commercial airliner) that would cause the person’s name to appear.  Prior to September 11, 2001, several federal agencies maintained lists of individuals who were subjected to heightened scrutiny.  After the horrible terrorist attacks of that day, President George W Bush signed a Presidential Directive requiring the FBI to consolidate and maintain these listings.  There are currently nearly a million names in this database.  If your name is on the list, you can expect to be subjected to enhanced scrutiny in certain circumstances (boarding a commercial aircraft, being pulled over for speeding, attempting to purchase a firearm, etc.).  A number of reasons exist why a person’s name may appear on this list.  One reason, is that you are, in fact, suspected of being a terrorist.  Often, an individual’s name will appear because it is either identical to, or similar enough to, a name used by a known or suspected terrorist.  Senator Ted Kennedy’s name appeared on the watch-list because a suspected terrorist was using, “Edward Kennedy” as an alias.  Representative John Lewis had his name on the list for the same reason as did at least one Roman Catholic nun.  The list is hardly arbitrary as you have to be, “nominated” by someone in the intelligence community in order to be evaluated, promoted, and finally, placed on the list.  Additional information on being on this list, and how to remove your name on the list may be found here:  http://people.howstuffworks.com/government-watch-list.htm

 

In any case, the folks I attempted to carry on a debate with via Twitter, are incorrect that denying or, most likely deferring, the purchase of a firearm violates their due process rights under the US Constitution.

 

What, exactly, is, “due process?”

 

As the name implies, it is a method, or process, that is owed to another person.  This may be established within the framework of organizational policies or, as used in this discussion, a requirement that is established within the framework of our nation’s founding document, the US Constitution.  Due process provides a means for an individual, or group of individuals to seek relief, or a redress, of a grievance.  The process involves those steps put into place for that appeal.  Under the US Constitution, due process, especially as recognized under the 5th and 14th Amendments is recognized as two separate entities.  There is procedural due process and there is substantive due process.  Procedural due process requires that a process for redress of potential harms be provided for the person who has suffered.  Substantive due process requires that this process be sufficient to resolve the issue at hand.

 

The folks in the Twitter universe invoking the 5th Amendment due process provisions as a reason to not block actual or suspected terrorists from obtaining firearms are actually missing the entire point about both, procedural and substantive, due process.  A number of these folks have suggested that by not providing due process BEFORE denying a fundamental right, a person’s fundamental rights have been violated.  This is not the case.  My counterargument to this flawed assertion is that while procedural due process may exist prior to a “harm” being inflicted, substantive due process begins AFTER a fundamental right has been infringed upon.  Furthermore, none of the recognized, “enumerated,” or, “fundamental” rights is absolute.

 

An example of procedural due process would be if I intended to stage a protest rally in a certain location.  It should be noted that not all speech is protected under the 1st Amendment.  For example, a person cannot yell, “Fire!” in a crowded theatre because he or she feels like causing a commotion.  Politically protected speech, though, is recognized as an essential, or fundamental, right.  However, even politically-motivated speech is subject to certain restrictions.  Namely, the time and the place of such protest may be limited for specific reasons, including safety.  If I failed to obtain the appropriate permits prior to engaging in this protest, I could be arrested and denied permission to exercise what has been recognized as a fundamental right—the right to engage in politically-protected speech.

 

Additionally, a person must be legally capable of exercising the particular right.  Would any logical person suggest that a five year-old child has the legal capacity to purchase a firearm with their allowance money?  This is why those persons who have been adjudicated as being mentally-unfit are banned from possessing firearms.  The same goes with certain convicted felons even after they have served their prison sentences.  Aren’t we denying these individuals their fundamental rights?  Yes.  Again, no right established in the US Constitution is considered absolute!

 

Now, to the point recent Twitter postings allude to:  Denying a person the legal opportunity to purchase a firearm violates their 5th Amendment due process rights.  Never mind that this right generally refers to an individual who has been formally accused of committing a serious crime.

 

If I was to enter a gun store, or any other environment that sells firearms, and attempt to purchase a firearm, I may be required to provide certain information which is supposed to be checked against a database that includes names that are on the consolidated terrorist watch-list.  Suppose my name flags as being on this list.  I will assume I would be informed this is the reason that I was being denied the opportunity to purchase said firearm(s) as this has not happened to me before.  If nothing else, I would be informed that there is a process that I may follow to address and correct any information that I believe is erroneous and what that process is for doing so.  After all, the gun seller wants to make a sale and would like me to return to purchase the gun(s) I wanted, right?

 

If the folks I was conversing with through Twitter were able to catch on to what I was pointing out, they might have a viable claim that the placement of their name on a list of suspected terrorists violated their 5th and 14th Amendment due process rights.  I would suggest that an individual might want the ability to be notified PRIOR to their name being placed on the list.  There is no process for this, however.  This is where the folks I was having a dialogue with should have their grievance.  There is a process for having your name removed from this list.

 

The process for purchasing a firearm, as I stated before, requires that a purchaser be eligible to exercise this action.  One additional point regarding the folks I was conversing with is that I am surprised that folks who claim to be so patriotic are so sympathetic to the needs and desires of actual terrorists.  Perhaps, that was a bit snarky, however, that is what the Senate vote was designed to address—the ability of terrorists who WANT to legally purchase firearms.  Why would patriotic Americans want to, even inadvertently, facilitate the efforts of a terrorist?

 



Religious Freedom and the Restoration of Legalized Discrimination

Recently, Indiana’s Governor, Mike Pence, found himself at the center of a firestorm associated with his signing of a so-called Religious Freedom Restoration Act (RFRA).  This past week has seen Governor Pence attempting to defend, and ultimately, backpedal on the law.  The backlash has led to a number of prominent voices speaking out against the enactment of this law and the hashtag, #BoycottIndiana trending on social media sites.  The outcry has led Arkansas Governor, Asa Hutchinson to withhold his signature from a similarly-worded bill sent to him by his legislature.  Governor Rick Snyder of Michigan has vowed to veto a similar bill if sent to him by the Michigan legislature.  The Indiana legislature is currently scurrying to amend the Indiana RFRA at the behest of businesses and residents of the state.

As Governor Pence has repeatedly pointed out, Indiana was simply doing what the Federal government and, at least, 19 other states had already done.  Unfortunately, the Indiana law went further than the Federal law does and is also significantly different than the Illinois law that Governor Pence is fond of noting, then State Senator, Barack Obama, voted for.  Most people are not exactly aware of the history of these types of laws or even what they are designed to do.  A little bit of history might be in order.

Our nation’s founders were quite clear that religious influence in the public sphere could present problems that needed to be avoided.  They also recognized the important role that religion played in the lives of people and that people needed to be able to practice their religious traditions free of undue government influence.  As a result of compromise, religious expression was included in the founding document of our nation as a component of the First Amendment to the US Constitution.  This amendment included two provisions associated with religious freedom.  The first provision provided that government, “…make no law respecting an establishment of religion,…” which is frequently referred to as the, “Establishment Clause.”  The second provision that addresses religion, “or prohibiting the free exercise, thereof…” which is the more familiar part of religious liberty.

Over more than two centuries a number of conflicts regarding religious liberty have found their way through the Federal Courts and rulings have sometimes limited government overreach and sometimes limited religious expression.  A 1990 US Supreme Court Case upholding the termination of two employees who were terminated after using Peyote during Native American religious ceremonies drew the outrage of progressives and conservatives and the Religious Freedom Restoration Act of 1993 was subsequently enacted.  This law was designed to require any Federal Government action against an individual that impaired the person’s ability to freely exercise their religious liberties must meet the highest level of scrutiny in judicial review.  This is known as, “Strict scrutiny.”  A 1997 Supreme Court ruling stated the provisions of the Act could not be applied to the states.  As a result, a number of states began to enact their own RFRA to protect religious expression rights from government overreach.

The one thing that each of these Religious Freedom laws had in common was that they protected individuals and their personal religious practices from government intrusion.  For this reason, these laws have remained, essentially, non-controversial over the past dozen years or so.  What makes the Indiana law so different is that it permits private individuals to invoke a claim of protection under the state’s RFRA when challenged by another private individual.  Another significant difference is that the Federal law, most Supreme Court rulings, and other state-level RFRA’s apply to acts associated with actual practice of religious ceremony.

Another point that should be noted is that Indiana does not include statewide civil rights protections for lesbian, gay, bisexual or transgendered people.  This has led to concerns being raised regarding the potential for discrimination being levied against sexual minorities.  This concern is heightened in light of last year’s US Supreme Court ruling in the case, Burwell v Hobby Lobby Stores, Inc.  While that case addressed reproductive issues, many are concerned that an extension of the arguments made by the attorneys representing the Hobby Lobby side could be applied to lesbian, gay, bisexual or transgendered (LGBT) individuals as well.  Voices from the right and left both note the case of bakeries that have refused to bake cakes requested for celebrating same-sex marriages.  Folks on the right argue this is why RFRA’s are essential while those on the left claim these laws codify discrimination into state law.

While the original RFRA, signed into law in 1993, applied to religious practices, more recent laws, including in Indiana, attempt to apply religious expression to, “sincerely-held religious belief” as opposed to actual religious ceremony.  That is what puts these newer laws into conflict with existing state laws in some cases.  The modern RFRA not only applies to the actual participation in religious activity, but asserts that an individual who merely professes a sincere religious belief is exempt from providing goods or services that are purely secular in nature.

In the case of a business, this confounds reason.  A business receives a license to operate in a particular location as a place of public accommodation.  It is designed to serve the needs of consumers of that particular product or service.  A business is bound by applicable laws of operation for that location including hours, health inspections, accessibility, and, unlike religious entities, pays taxes.  Can a business pick and choose its customers?  A private shopping club can require its customers to purchase a membership, for example.  However, such a purchasing club cannot deny membership to a particular individual if the individual can afford to pay the membership fee and agrees to abide by the rules of the club.  Convenience stores may limit the hours, or numbers of, unaccompanied minors that may be inside a particular business.  A convenience store may not, however, deny minors access to the store or its goods or services completely.  In every state, characteristics such as race, gender, and other factors may be enshrined in state or local civil rights laws.  Failing to provide service to customers of any protected class may result in civil or criminal penalties for that business.  Government has established a compelling interest in preventing discrimination to prevent injustices such as denial of service to members of particular groups.

There is an important discussion to be had regarding religious expression versus religious belief.  Ultimately, the Courts will likely be forced to arbitrate and determine what constitutes religious expression as opposed to religious belief.  I believe there are nefarious reasons underlying the current push to implement religious freedom laws over the past few years.  I have yet to hear of an incident where one individual has attempted to interfere with the free practice, or even the free expression, of religious people.  We have all been exposed to multiple cases of individuals attempting to invoke their religious beliefs as a defense of discriminatory behavior.  Throughout history, religion and religious belief has been used as an excuse to discriminate against others.

I have heard numerous people say, “Why can’t the person just go somewhere else if the (proprietor) doesn’t want to serve them?”  Or, “Why would you want to spend your money somewhere like that?”  Or, “What about the business owners religious beliefs?  Isn’t it discriminatory to force someone to violate their religious beliefs?”  Let’s break these down.

In many places a person who would be denied service, for any reason, could possibly go somewhere else.  However, in many other places, say a small town somewhere, that business or provider may be the only game in town.  To go somewhere else places a hardship on the willing customer.  What if the business was the only auto repair dealer that was capable of handling your Porsche within fifty or a hundred miles?  Or, what if your business was known far and wide as having the very best wedding cakes in the entire state?  Why should a customer be forced to settle for, second-best?  What if it was something more important that a cake or an automobile?  What if it was a sick child?

Why would someone spend their hard-earned money where it is not wanted?  Personally, I wouldn’t.  I would also make sure my friends and family would not want to spend their hard-earned money there, either.  I would also make certain that as wide an audience as possible knew that this business only liked certain types of money.  Not only would this business not get any, “Gay” money, but they would lose out on an awful lot of non-gay money as well!!  That is not really the point, though.  The business is violating the terms of their operating license.

Am I discriminating against a business owner by demanding service?  No.  The relationship between a customer and a business is mutualistic.  The business provides a product or a service and as consideration, the customer provides payment in the form of money.   It is not discrimination to ask a baker to bake a cake.  It is not discrimination to ask a professional photographer to take a picture.  It is not discrimination to ask a Pediatrician to care for a sick child.  It would be unfair to ask a Pediatrician to perform a craniotomy or to ask a photographer to bake a cake.  Someone recently posed the question, “What if you were a Jewish baker and a Neo-Nazi wanted you to bake a cake to celebrate Adolph Hitler’s Birthday?  Could you refuse to do that?”  I pointed out this was not a religious liberty issue but, rather, a free speech issue.  Baking cakes is not an exercise of religion, but rather, in this case, a source of income generation.  I said there were four possible options.  One, the baker could bake the cake, decorate the cake, and, collect payment for doing so.  This is basic contract law.  Two, the baker could bake the cake and offer to sell the items necessary to decorate the cake to the customer who could then either decorate the cake him/herself or hire someone else to do the decorating.  Three, the baker could refer the customer to another baker who might be willing to comply with the customer’s request.  And, fourth, the baker could refuse to bake the cake at all.  In this scenario, this might be legally risky due to provisions in the Federal Civil Rights Act.

Title II of the Federal Civil Rights Act of 1964 prohibits discrimination by businesses, which are referred to as public accommodations.  Unfortunately, there are limited protected classes in this law and if the person is not a member of a protected class, they could, potentially, be denied service.  It is important to note that any contract requires, “consideration.”  That is, something of value rendered for something provided.  This requires both parties to come to agreement.  Without consideration there is, technically, no contract.

The anecdotes commonly discussed during this debate all seem to wind up revolving around a baker refusing to bake a cake for a same-sex marriage celebration.  A business owner generally does not have to provide a good or a service to a particular customer if that service or product is not in the customary line of goods or products offered.  For example, if a customer goes into a bakery asking for a wedding cake and the owner says they bake Birthday cakes but not wedding cakes then there is no issue.  However, if the bakery regularly bakes wedding cakes as well as Birthday cakes, this most likely would not be lawful.  Most states will not allow a business to deny a service or product that is customarily offered to a customer simply because the proprietor does not “like” the customer.  This would be referred to as discrimination.  If the customer is a member of a class protected under the law, the person may have a legal claim of discrimination.  In a state without protections based on sexual orientation, there is little recourse for a person denied the services of the baker other than complaining to the state’s Better Business Bureau.  This is what makes the RFRA in Indiana so insidious.  It provides a defense to individuals, and businesses, who are sued for discrimination by other individuals.  This law is not limited to actions by the government.  The state of Indiana does not currently have protections based on sexual orientation which could limit the Due Process rights of an individual who believes they have been unfairly treated.

Governor Pence, and the entire state of Indiana has experienced the collective outrage of individuals and groups who believe this is simply an attempt to legally-sanction discriminatory behavior.  This is inconsistent with our American values today.  This serves to put other states, and their legislatures and governors, on notice.  Discrimination is bad for people, it is bad for the economy, and it is bad policy.  Caveat emptor!!