Ken’s Take on the World

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!!