Tuesday, March 31, 2015

Why Indiana's "Religious Restoration Law" Is A Bad Idea

Not since Arizona Governor Jan Brewer was asked to explain how someone can "look" like an illegal alien have we seen such a deer-in-headlights moment like the one we saw today when Indiana Governor Mike Pence struggled to defend his state's new controversial "Religious Restoration" law.  The law aims to restore religious freedom to people and business entities operating in the state of Indiana (regardless of whether they are non-profit or for-profit business entities) by preventing any state authorities from punishing Indiana residents or businesses for exercising their religion. In other words, the Indiana law expressly recognizes that businesses like Hobby Lobby -- which cited the religious beliefs of its owners as a reason why the business refused to pay for contraception for its employees -- actually have a First Amendment right to the free exercise of religion the same as people do.  As it turns out, Mitt Romney was right when he said that "corporations are people, my friend" . . . at least it appears that they are in Indiana, anyway. 

The law does not define what qualifies as an acceptable exercise of religion, or which religions may or may not exercise their practices.  It simply states in pertinent part:
Chapter 9. Religious Freedom Restoration

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.
Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.
In plain English, what Section 9 is saying is that any person or any business that feels like their religious beliefs have been offended is entitled to assert that as a legal defense in a lawsuit.  In other words, this law: (A) recognizes that Indiana businesses have a right to religion; and (B) makes them immune from law suits filed by private individuals like you or I if we ever decide to sue an Indiana business for exercising its religious beliefs against us.   In case there was any doubt, Section 11 makes clear that this law will not help anyone who tries to sue their job.

Why is this a bad idea?

Well, for starters, the entire concept that a business has a right to exercise free religion is laughable.  Common sense tells us that religion is a human experience that cannot be felt or experienced by a corporation.  But moving beyond that, the real problem with this aspect of the law is that it allows for-profit businesses to condition their compliance with objective state laws based on their subjective religious views.  What do I mean by that?  Well, for example, if a state passes a law that says that all businesses must do X, a business that decides doing X is too costly can simply use this law to get out of doing X and cite religion as a justification.

More importantly, by making it virtually impossible to sue a business for following its religious beliefs, the law effectively invites religious-based discrimination against any individuals who offend certain religious beliefs.  We've already seen real life examples of this between evangelical Christian business owners who refused to serve same-sex couples, but that is merely one of may examples of how laws like this are a bad idea.  The potential for discrimination here is literally limitless.  Islamic-owned restaurants can justifiably refuse service to those who they consider to be offensive to Allah.  Jewish-owned restaurants can do likewise.  As can Hindu-owned restaurants.  You get the point.

This is precisely why the founding fathers put the Establishment Clause in the First Amendment to the United States Constitution which set up the division in this country between church and state.  They knew all too well the effects that religion can have on the secular aspects of our society, and vice versa.

The bottom line is this: if you want to be a church, then be a church.  If you want to be a for-profit business, then be a for-profit business.  But you can't do both and expect the business world to cater to your religious beliefs.    

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