Being Gay Doesn’t Pay: Does Indiana’s RFRA Discriminate?

First Impression Media

On 26 March 2015, Indiana Governor Mike Pence signed the Religious Freedom Restoration Act (RFRA). The Huffington Post states that the legislation “could legalise discrimination against lesbian, gay, bisexual and transgender individuals.”

MANY spoke out against the bill, which The Advocate and Indy Star both informed. Some notable figures are:

Additionally, representatives to larger bodies of people sounded their disapproval, including Apple (Tim Cook), NCAA (Mark Emmert), SalesForce (Marc Benioff), Eli Lilly, Cummins, Angie’s List (Bill Oesterle), Yelp (Jeremy Stoppelman), Scotty’s Brewhouse (Scott Wise), and beloved St. Elmo’s Steakhouse/Harry & Izzy Restaurants. Many other businesses around Indiana also chimed in, displaying “This Business Serves Everyone” stickers at their establishments.

And despite holding a Super Bowl XLVI, the stunning city of Indianapolis may have lost it’s bid to hold future conferences, conventions and sporting events. Adrian Swartout of GEN CON displayed concern on obliging a contract, as (largely listed) others are debating on choosing a different hosting city. It looks like VisitIndy has a lot of PR with lots of groups to regain their commerce.

But obviously it’s a current trend. As The Advocate reported, 23 more states could also pass discriminatory bills.

Could the ‘Gay Cake’ discrimination case of Northern Ireland soon to be legally allowed in America?

A Baker in Norther Ireland Refused To Bake A Cake With This On It.
A Baker in Norther Ireland Refused To Bake A Cake With This On It.

 RFRA (Wiki’ed) 

The Religious Freedom Restoration Act of 1993 is a federal law that passed unanimously through the US House of Representatives, passed 97-3 through the Senate and signed into law by then-president Bill Clinton. The law reinstated the Sherbert Test.

Former President Bill Clinton Signs The RFRA of 1993
Former President Bill Clinton Signs The RFRA of 1993

The Sherbert Test is an effective way to determine whether the government has violated the right to exercise the freedom of religion. For the government to be in the wrong, the government must have burdened the individual’s religious freedom (penalizing or withholding benefits, for example). However, the government is able to burden the individual’s religious freedom if the government can show it is a justified infringement for the government’s interest and there’s no alternative way to achieve that interest. (How the Sherbert Test came to be in the following block)

The Sherbert Test was named after Adell Sherbert from the case Sherbert v. VernerSherbert was an Seventh-Day Adventist Church member, believing that God forbade working on Saturdays, the Sabbath. As her employer altered the workdays from 5-days to 6-days (including Saturdays), she refused to work and was fired. She applied for unemployment compensation to be refused via state trial court. The Supreme Court overturned it, allowing Sherbert to receive benefits in support of her religious freedom.

The RFRA includes that the “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” meaning that a religious-neutral law could be overruled due to religious freedom.

Prior to the RFRA of 1993, judgements of the Supreme Court were inconsistent. Whilst favouring religious freedom in Sherbert v. Verner and Wisconsin v. Yoder; however, laws that were religious-neutral held precedent, such as a case with Employment Division v. Smith. In Smith, Native Americans were fired from their rehab clinic jobs for testing positive for a drug made from the peyote cactus, which was used for their religious ceremonies. The Supreme Court ruled against the Native Americans, stating that the government was “not coercing or punishing them for their beliefs.”

Notable court cases where RFRA was applied are as follows.

  • Six tribes noted RFRA against the National Forest Service’s plan to permit upgrades to Snow Bowl Ski Resort, noting that they risk ‘ghost sickness’ via contaminated water from mortuaries and hospitals. Their claims were rejected.
  • In Adams v. Commissioner and Miller v. Commissioner, the use of RFRA were denied. In Adams, a Quaker refused to pay federal income taxes because they fund military expenditures. In Miller, taxpayers refused to use SSN’s because they related to the marks of the beast from the Bible.
  • In Burwell v. Hobby Lobby, the Supreme Court ruled in favour of Hobby Lobby. Despite the Affordable Care Act‘s contraceptive mandate, the Supreme Court ruled that Hobby Lobby, a closely-held corporation, could refuse to give contraceptives that ’causes abortion’ due to religious beliefs of the owners.

 

States With RFRA Or Similar (IN & MS Has Since Turned Dark Green)
States With RFRA Or Similar (IN & MS Has Since Turned Dark Green)

The Reality of RFRA

The Indiana House of Representatives Republicans Caucus published a FAQ about the RFRA found here. Given, it’s a right-wing publications, but through the FAQ, you learn more than what Miley Cyrus had to say about it. Here are a few note-worthy food for thought.

  • RFRA can be used only as a defence against government action. When businesses enact their own workplace or customer policies, they are not taking government action and the RFRA review standard will not apply.
  • The house amended the RFRA statue to explicitly state that the law doesn’t provide a private cause of action by an employee against a private employer. Apart from specific services directly relevant to personally participating in weddings, the spectre of religious business owners refusing to serve gays and lesbians has been characterised by the legal experts disused above as a myth (experts being law professors from IU, Notre Dame and Valparaiso).
  • Thirty other states have a RFRA judicial review standard. Nineteen states have enacted a RFRA law: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia.
  • Eleven state courts have interpreted their state constitutions to provide similar protections as RFRA: Alaska, Hawaii, Maine, Massachusetts, Michigan, Minnesota, Montana, North Carolina, Ohio, Washington, and Wisconsin.
  • (When asked for examples)
    • A Jehovah’s Witness who lived in Kansas needed a liver transplant; her religion did not allow blood transfusions. A neighboring state had a non-blood transfusion liver transplant; however Kansas denied her request to get the out-of-state procedure. Kansas did not have RFRA. Since there was no state RFRA, they had to litigate because there was no clearly applicable legal standard (just like in Indiana). She died in the process. If Kansas had adopted the RFRA standard, there would have been a clear direction for the state and the courts.

IU Law Professor Daniel Conkle told The Indy Channel that he supports gay rights and the RFRA. He states that other states have religious individuals asking for the protection of their rights from the government or businesses, not vice versa.

Archbishop Patricio Fernandez Flores
Archbishop Patricio Fernandez Flores

John McCormack from The Weekly Standard also wrote a FAQ-formatted information sheet about RFRA. Notable information is as follows:

  • In the decades that the states have had RFRA statues, no business has been given the right to discriminate against gay customers, or anyone else.
  • States have to pass RFRA because in a 1997 Supreme Court case City of Boerne v. Flores (summarised below), the court ruled that the federal law is inapplicable against state and local laws. 
    • City of Boerne v. Flores: Catholic Archbishop Patrick Flores applied for a building permit to enlarge his Church in Boerne, Texas, to be refused since it was located in a historic district and considered a contributing property. The federal RFRA was denied, holding state and local laws in priority.
  • Bad journalism is to blame for the poor image of the RFRA. Indiana has never prohibited discrimination based on sexual orientation at public accommodations. Even without such laws in most states, discrimination doesn’t commonly occur because the US is a nation that is tolerant of gay people and intolerant of bigots.
  • Whilst talking to Stanford Law Professor Michael McConnell, the following example was given on when the RFRA may hold in connection to public accommodation:
    • “…A circumstance where you have somebody renting out a bedroom in their house, and they have children they’re trying to bring up in a particular way, and there would be some very specific conflict with their religion that I could imagine. If the couple could go anywhere and it’s no real interference with their ability to find housing– these cases are just not all one way or the other. They depend powerfully on the particular circumstance.”

 My Thoughts

When I first read about the RFRA being passed in Indiana, I didn’t know how to feel. Should I be pissed, because I could be refused service from anywhere that deem me too homosexual? Should I be happy, because I can protect my beliefs and my rights as a Catholic? I didn’t know enough about it to really feel.

The gay community was in an uproar, obviously. I thought of the scene from Remember The Titans, when the gang walks into an establishment and the following was said:

Server: We’re full tonight, boys.

Sunshine: What? There’s tables all over the place, man. What are you talking about?

Server: Well, this is my establishment. I reserve the right to refuse service to anybody. Yeah, that means you too, hippie boy. Now, y’all want somethin’ to eat, you can take these boys out back and pick it up from the kitchen.

But how would they be able to tell? Then I questions my visibility of being a homosexual. Is my gay telling to a third eye? Will they see the confetti in my hair, hear a lisp in my voice, or see the flip of my hand? Then I remembered the wise quip from an inspirational person.

JK Rowling In Response To Dumbledore's Sexuality, 24 March 2015
JK Rowling In Response To Dumbledore’s Sexuality, 24 March 2015

I was relieved by the thought. But was I happy, because really, it’s a “win” for the Catholic community, as well as any religious body of belief. My Catholic mother was pleased when she heard the news, indirectly (yet, somewhat knowingly) opposing my lifestyle. As I’ve stated in a previous post (He Had It Comin’), I tick both boxes of homosexual and Catholic, and don’t find a reason to explain it to persons who don’t already know. But it’s somewhat comforting to know that there had been a win for Catholics, as much as we’ve been abused in late in the media.

But I knew I need to read into it. I must give due diligence to the matter, despite noting that I am no political expert, maybe even hardly a novice. I’m the sort that if I read it enough, or even slowly the first time, I’ll catch on for the time being. So I read the aforementioned articles, wiki’s and FAQs to fully grasp the concept before starting on this blog.

As I’ve stated, I was somewhat angered and saddened by the thought of businesses discriminating against my sexual orientation basely because of what I read from The Advocate, OUT, Attitude Magazine, and Instinct that only said that it’s a disservice of humanity. However, what really got me into looking into it was a Facebook status from my friend who’s father is a Republican State Representative. Paraphrasing (since it’s not burnt to memory), it said “I’m tired of all the statuses about RFRA! People who don’t know about it, and it’s background, really need to shut up!”

He’s a Catholic as well, and I trust my Catholic peers perhaps a bit more than my homosexual peers, and so I knew I had to look into it. And it’s actually really great that I had, because it really changed my thoughts on it. I didn’t just read the liberal, democratic, left-wing’ed homosexual media as some people do, but I looked it up on google and clicked on any relevance to RFRA, despite where it came from. I know this is obviously could still be a small fall from the initial information, but it’s a different take nonetheless. One shan’t be so myopic when wanting to obtain knowledge.

In my opinion, the media as a whole have taken to an interesting story and ran with it. The WHAT IF hypothetical has been thrown around to this legislation that it’s mentally grotesque. If you had read my previous information, you would be able to tell that most cases dealt with how the individual had qualms with the government, and the ruling was against a government body.

However, in cases such as Burwell v. Hobby Lobby, I believe the upholding of RFRA is rightfully so, not because of the reason they said but because I mostly side with businesses in these matters. As for Chick-Fil-A, I believe that if they do not want to hire homosexuals to work at their establishment, they are free to do so as long as no HR laws have been broken, such as being ask if you’re homosexual during the interview. Businesses must have a way to defend themselves against ludicrous individuals.

 

I understand that being an American, we want to go where we want, when we want, how we want and do whatever we do and still be accepted — Okay. But I feel that homosexuals people wanting the government to force businesses to serve their needs is like adult pedestrians wanting crossing guards to force cars on a college campus to serve their needs. It’s a nice thought, having a crossing guard do all the work as you mindlessly skip your way across the street, but honestly, you’re an adult. Grow up, use that brain of yours and if you see a car in danger for itself or others, don’t cross the street and if you feel too deeply distressed by it, take the license and call the police. But take a note from the Sherbert Test and see the other alternatives ‘less burdensome’: Could you eat anywhere else? Can you stay anywhere else? Honestly, this is so hypothetical that it’s comparative to worrying about labor pains a month-old baby girl would have (given, sometimes it’s only 15 years later that she’d actually experience it).

VisitIndy's 2nd Slide On Their Homepage
VisitIndy’s 2nd Slide On Their Homepage

Having been introduced to Leonard Hoops (President and CEO) and hosted Morgan Greenlee (Senior Communications Manager) of VisitIndy, I feel bad that they now have to do damage control to fix the very negative image of Indiana. Indianapolis held a stellar Super Bowl, and proved that it’s downtown could handle mega-events, large conventions, conferences and any other events you can fathom. I’m even excited to soon start planning my good friend Roxie’s wedding in Indianapolis soon.

In the case as to working for a wedding, and with the ‘gay cake’ case from Northern Ireland, I understand why businesses wouldn’t want to serve homosexuals if it’s their belief. Honestly, your special occasion, whether it be a birthday, anniversary or bat mitzvah— if you’re going to dish out money for a photographer, painter, singer, choreographer or whatever, why would you even want to provide income to someone who verbally disapproves of your lifestyle? Like a Muslim photographer for a Satanic ritual? Buddhist singer at a Greek Orthodox wedding? Would a homosexual caterer refuse to cook for a Catholic wedding reception? if there’s no problem, then it’s no problem. If there’s verbal disagreement on either side, be adults and move on.

 

Gay-wedding-portraits

I love being homosexual. I’m not ashamed of it. I love loving my Perseus. I can’t wait to have our kids, to raise them with Catholic values and to be good people. I can’t wait to sign my life away with him, to legally, mentally and physically be with him for the rest of my life. And in America, it’s great that it could happen, like McCormack had said in his FAQ that we’re accepting to the gay community and hate bigots. But, being aware of myself and of the world, not everywhere accepts homosexuals, or Catholics, or Asians, or many other characteristics. It’s the WORLD we live in, and I experience the WORLD not just the FRACTION of the WORLD called America.

Knowing now what the RFRA is, I don’t mind the bill. It protects my beliefs, whatever they may be. Whether I speak as a homosexual or a Catholic, I know I’m covered. I’m sure of myself.

What are you afraid of?

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One Comment Add yours

  1. ap says:

    Thank you so much for posting a great, thoughtful (and researched) response to such a hot button topic.

    Like

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