Friday, March 20, 2015

Freedom Indiana Replaces Honesty Used to Win Marriage Fight with Deceit and Demagoguery in Fight Against RFRA

As someone who is always interested in political strategy, I was more than a little impressed by the work of Freedom Indiana last year.  Last year the then newly-formed organization took on a proposed constitutional amendment that would have defined marriage as being between a man and woman, a move that would have placed a major obstacle in the way of future state legislatures legalizing same sex marriage.  Freedom Indiana ran a brilliant campaign, building a grass roots organization that lobbied individual legislators directly, with compelling real life stories of same sex couples who simply wanted to marry but couldn't.  In addition, the organization also pointed to benefits of marriage that were not available to these same sex couples.  Finally Freedom Indiana touted corporate partners who backed up the organization's message.

In the same sex marriage battle, Freedom Indiana routed more politically experienced organizations which struggled to develop a response in support of marriage that didn't sound like the supporters of the amendment were just trying to deny people civil rights.  Freedom Indiana didn't just win the war last year.  It won every battle.

Earlier this year, Freedom Indiana geared up for another political fight, this time to try to stop Indiana from adopting the Religious Freedom Restoration Act, a proposal which restores a legal test for assessing challenges to statutes based on the free exercise of religion clause. Some background is in order.

In an opinion authored by Justice Scalia, United States Supreme Court in 1990 threw out the compelling interest Sherbert Test used for examining free exercise challenges.  Instead, Scalia's opinion declared that, henceforth, laws could burden religious beliefs as long as they applied generally to everyone.  Justice Blackmun wrote the dissent advocating that the Sherbert test be kept.  He was joined in his dissent by two even more liberal colleagues, Justices Brennan and Marshall.

People all across the political spectrum were outraged.  Conservative and liberal groups, including the ACLU joined together to advocate a Religious Freedom Restoration Act which would restore the Sherbert test.  The bill was introduced by then Rep. Chuck Schumer (D-NY).  It passed the House unanimously and the Senate 97-3.  In 1993, it was signed into law by President Clinton.

In 1997, the Supreme Court upheld the RFRA, except for the part saying it applies to state laws.  The Court said that, due to federalism principles, states had to adopt their own RFRAs if they wanted the Sherbert test to apply to free exercise challenges to their laws.  Since 1997, nineteen states have adopted their own RFRAs while ten states have had their constitutions interpreted to require a Sherbert like test to free exercise challenges.   Earlier this year, Indiana moved forward to becoming the 20th state to adopt an RFRA. 

Re-enter Freedom Indiana.  While last year the organization occupied the high ground and was able to tell true and compelling stories about loving same sex couples denied the opportunity to marry, this time Freedom Indiana had no compelling real life stories to tell.  In the 52 years that RFRAs have been in place or the Sherbert test guided interpretation, there has been no sanctioning of discrimination.  For example, in five cases brought under the RFRA, Christian landlords said that anti-discrimination housing laws should not require them to rent to unmarried couples.  In all five cases, the landlord lost.   The plethora of RFRA cases show that all it does is restore a common sense legal test that balances religious freedom with the state's compelling interest in advancing certain goals, including prohibiting discrimination.

Unlike the truthful stories the organization told about same sex couples last time, this time Freedom Indiana has resorted to baseless fears in an effort to stop the RFRA from being passed. Without a scintilla of evidence, the organization at every opportunity labels the RFRA a "license to discriminate" and tells horror stories of how the LGBT community will being denied service at restaurants and other public accommodation facilities if the law passes.  Examining the organization's literature closely, one finds that Freedom Indiana is constantly using qualifying language such as these discriminatory actions "could" or "may" happen even though they have have NEVER happened under the 52 years the RFRA or Sherbert test has been in place.

On its website, the organization promotes the story of a young lady who says she "may consider leaving" the state if Indiana adopts an RFRA.  (Of course, the headline disingenuously leaves off the "may" in the story and instead definitively states that she is leaving the state if the RFRA passes.)Apparently the "college scholar" is so uneducated about the issue that she is unaware that there is a federal RFRA.  She would not only have to leave the state if she wanted to escape the RFRA, she would have to leave the country.

Honesty.  That's the difference between Freedom Indiana's success last year and its failure this year.  Many independent-minded and even conservative people respected the honest case put forward by Freedom Indiana that men and women who are gay should be permitted to make the ultimate commitment of marriage to the one they love, that the battle was one for civil rights and not for special privileges.  Today, Freedom Indiana's anti RFRA campaign is built entirely on using deceit and demagoguery. And it is not working.

To their credit, not every member of the LGBT community has signed onto Freedom Indiana's anti-RFRA position.  Without outing them personally, I have witnessed them on social media question the Freedom Indiana's strategy and emphasizing that there be a reasonable middle ground that protects people from discrimination while also respecting people's heartfelt and conscientious objections to the life they themselves are living. Those objectors bring up that the LGBT community does not earn respect and acceptance by trying to bankrupt Christian small business owners and that the same freedom of conscience idea incorporated into the RFRA could also protect members of the LGBT business community from actively participating in anti-LGBT matters they find offensive.

If Freedom Indiana wants to be a political force in Indiana, it needs to reexamine what it did right in 2014 and what it is doing wrong in 2015.

30 comments:

Anonymous said...

As an out gay man I could not agree with you more, Paul. Further, I am not at all surprised to see Freedom Indiana lose its fight against the RFRA; when an organization resorts to hate talk and deception the organization serves only to harm itself. And when an organizaiotn is "led" by left of center individuals- or individuals of any polticial philosophy for that matter- with a bent toward closed-mindedness, anger, and cursing as "leadership tools" the organization is eventually going to fail in its image before the public. Who voted in the guy who is the familiar face of Freedom Indiana and the alleged "leader" of this issue for my gay community???

Anyone who a couple of years ago attended that New Year's Eve fund raiser in the Watson Road area for Freedom Indiana and its fight against HJR3 (later HJ6, if I have that correct) heard the cursing in the hosts' living room coming from the old man who was the face of Freedom Indiana. Swearing and yelling should not be considered a leadership skill set; it is churlish and mean-spirited. But the PR image Freedom Indiana presented to the public in its battle for gay marriage masked the far left of center rhetoric and outright hatred I heard that night.

This old guy demands and screams he wants tolerance for our community and for gay marriage but God forbid he should tolerate anyone else's ideas or personal beliefs. If I happened to find a guy I wanted to marry and did, and then encountered a bakery, for example, that did not want to make our wedding cake, you know what I would do?

I would take my business somewhere else and let the free market decide whether that bakery should remain in business. Rather than me being intolerant and closed-minded, I'd allow that bakery (or ANY business owner) their right to believe as they believe.

Years ago, bath house owner Stan Berg was criticized by the gay community as not being their "voice" although he ranted in local gay papers (just as we see now in the "Word") and was often the go-to by the local media for pull quotes. We would ask ourselves, "Who voted Stan Berg to represent us?". Of course, no one voted him in at all.

Intolerant hatefule "leaders" will take down their organization faster than the opponents can ever do.

ReidDA said...

Yet you leave out a couple of facts yourself.

1) The Indiana RFRA includes a definition of person that includes all corporations, while the Supreme court last year did rule that closely held corporations are covered under the Federal RFRA that has no bearing on how an Indiana Court would rule.

2) The Indiana RFRA also includes a caveat that in order for a RFRA defense to be used, the government need not be a party to the action. This is an important distinction as most discrimination claims are brought in the name of the person being discriminated against.

3) The Supporters of RFRA have sent mailings that explicitly notes their intent with RFRA is to be able to discriminate, so if you feel Freedom Indiana is being dishonest then you must feel the same about Advance American and AFA of Indiana.

As far as it being settled that prohibiting sexual orientation discrimination in locals that have enacted ordinances to do so that is hardly true. There have been 2 cases where RFRA (or strict scrutiny) has been used as a defense in those types of cases. The first, Elane Photography v. Wilcok from New Mexico the state supreme court didn't even reach the merits of the RFRA claim as the government wasn't a party to the case (no such requirement exists in Indiana.)

In the second case, Arlene's Flowers from WA, a RFRA wasn't implicated but the WA Constitution has been interpreted to require strict scrutiny be applied to free exercise claims. Granted while the court in that case did find a compelling interest via the least restrictive means in prohibiting sexual orientation discrimination that decision was made by an lower court and hasn't yet been reviewed at the appellate level.

It is dishonest to say that it is settled law when it comes to Sexual Orientation discrimination surviving a RFRA claim based on a case that didn't reach the merits, and an inferior court ruling from another state. Even in Hobby Lobby, while the court did mention discrimination claims they listed specific types of discrmination (and yes not sexual orientation since that isn't a protected class at the federal level.)

Considering how sexual orientation is still viewed in many locations both throughout the state and country it is hard a far leap to consider (even assume?) that courts might not find the same compelling interest in a potential case.

The possibility of RFRA being used to discriminate against LGBT people IS real and isn't some hypothetical.

Paul K. Ogden said...
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Paul K. Ogden said...

Reid DA,

I didn't understand the rationale the court used in the Elane Photography case. The entire complaint about Elane Photography owner not agreeing to photograph a same sex marriage was based on the New Mexico Human Rights Act (or whatever it was called.) In fact the business was fined by government for not providing the service which is how the legal challenge came about. How the court came up with the notion government wasn't involved and therefor the RFRA didn't apply is bizarre. I might agree with that premise if it were just two private parties involved in New Mexico without any involvement of government, but that was not the case.

The purpose of the RFRA is to provide some protection to religious freedom while allowing government to advance causes, like protecting citizens from discrimination. Let's say I have a restaurant that also provides catering. The undue burden-compelling interest in the RFRA draws a common sense line between my having to serve LGBT clients at my restaurant but not forcing me to cater a same sex marriage event. The former isn't an undue burden on my religious belief, while the latter is.

Pete Boggs said...

Well state Mr. Ogden & Anon 12:10. Discriminate is somehow the wrong word- the concern is abuse.

All selection or preference is discrimination; at the exclusion of other options. Cultural card check is a tyrannic abuse; ignoring that the right to associate is also the right to disassociate. Forced acceptance or association is an oxymoronic notion of illogic; itself an abuse which nullifies FI's argument to the contrary.

Anonymous said...

Had no idea about the federal law until you posted on social media,

ReidDA said...

I'm not sure what you mean that if it was just 2 parties involved. Here is the decision, there was no government involvement in the action where they claimed a RFRA defense: http://www.adfmedia.org/files/ElanePhotoNMSCopinion.pdf

Catering a wedding (or baking a cake for that matter which is a much more relevant example) for a same sex couple is no different than catering (or baking a cake) for a straight wedding. If I put 5 wedding cakes side by side one of which was used in a same sex marriage I'd be willing to bet that one couldn't tell the difference.

It is discrimination when you decline to provide a service to one group that you would provide to another no matter how you spin it.

Paul K. Ogden said...

Reid NA,

No matter how you spin it, forcing people to actively provide a service that is contrary to their deeply held religious beliefs is simply discriminating against someone because of their religious beliefs Not sure how you're advancing the goal of preaching tolerance for LGBT rights, when you're being extremely intolerant toward people of religious beliefs. The whole purpose of the RFRA is to provide a balance between religious liberty and the government's compelling interest in achieving certain goals such as outlawing discrimination.

As far as the New Mexico case, I don't buy there was no government involvement. The argument that the government dropped out of the case because of the appeal, ignores the fact that the whole case was instituted through an enforcement action with the New Mexico Human Rights Commission. The argument is extremely disingenuous.

Paul K. Ogden said...

Reid NA,

No matter how you spin it, forcing people to actively provide a service that is contrary to their deeply held religious beliefs is simply discriminating against someone because of their religious beliefs. Not sure how you're advancing the goal of preaching tolerance for LGBT rights, when you're being extremely intolerant toward people's religious beliefs. The whole purpose of the RFRA is to provide a balance between religious liberty and the government's compelling interest in achieving certain goals such as outlawing discrimination.

As far as the New Mexico case, I don't buy there was no government involvement. The argument that the government dropped out of the case because of the appeal, ignores the fact that the whole case was instituted through an enforcement action with the New Mexico Human Rights Commission. That argument, which the Court unfortunately bought, is extremely disingenuous.

ReidDA said...

Of course there was government involvement, in almost any discrimination claim there has to be such as an approval to sue for EEOC claims. The caveat though and the reason that the court didn't permit the RFRA defense was a party to the action. There is no such requirement in Indiana.

Pete Boggs said...

Ten plus years back, a downtown Italian restaurant had a same sex oriented staff who on repeat occasion, delivered distinctly poor service to opp sex couples. We liked the food but got the message & simply took our business elsewhere.

The level of poor service bordered on denial of same & our best guess was the aforementioned staff was heterophobic. It did not however occur to us, to attempt to bring the force (read also violence) of law; to force any association or tolerance.

No one is liked or welcomed everywhere. Christians aren't throwing those of same sex orientation off of buildings or insist they be sharia-compliant. FI is intolerant; attempting to bully those of differing opinion.

Paul K. Ogden said...

I understand they did add language that the RFRA did not create a private cause of action.

johnnystir said...

We'll see how this law is applied when it passes and is signed by the Governor. We'll see which side is correct.

And, by the way, thanks for calling out Micah Clark and his ilk for calling Freedom Indiana a liberal-backed "homosexual demands" group. I guess you must agree since you back the passage of this vile and backwards legislation.

Flogger said...

We need a Freedom From Religion Law. Who will determine if you have "Strongly" held Religious Belief? Will our Politicians come up with test? Will there be True or False, Multiple Choice or Essay Questions for the Test. Will the next thing be the Clerk at the Drug Store does not want to sell Cigarettes or booze or birth control since it would violate their "Strongly" Held Religious Belief.

If went into a Bakery and asked for Buddhist symbols on the cake could the clerk tell me no since it would violate the "Strongly" held Religious Belief???

I will go along with Thomas Paine on Religion - "Whenever we read the obscene stories, the voluptuous debaucheries, the cruel and tortuous executions, the unrelenting vindictiveness with which more than half the Bible is filled, it would be more consistent that we call it the word of a demon than the word of God."

Paul K. Ogden said...

Johnnystir,

"Homosexual demands" group is certainly not a phrase I would use. I do think the Freedom Indiana group is spouting a lot of hatred and intolerance toward religion that is not productive for the cause. (I would refer you to the Anon 12:10 post.) The organization is also engaging in demagoguery, if not outright dishonesty, in its current campaign against the RFRA. While I don't agree with Micah Clark's label, I'm not sure my description of Freedom Group will sound any kinder.

I would say that it doesn't matter what position you take, there will always be extremists who on the right or left who will line up behind you. I've never thought it fair to demand that people denounce those extremists or they be assumed to hold the most extreme of those extremists' views.

Paul K. Ogden said...

Flogger,

As with any legal standard they are subject to interpretation by court. The RFRA standard is not new though. It's been around for 22 years and 30 years before that as the Sherbert test. It's never been interpreted to do the sanction the sort of discrimination that Freedom Indiana suggests are imminent with Indiana's RFRA.

Annette Gross said...

How can one prove what their deeply held religious beliefs really are? Seems pretty arbitrary to me - and an easy way for someone to use their religion as a way to discriminate against certain groups without having to personally "take the blame."

Annette said...

This bill is awfully arbitrary. How will anyone know for sure if a service provider truly wants to protect their religious liberty, or if they are using this as a way to discriminate? I know there are some hateful people out there who wouldn't have a problem at all using religion as a way to hide behind their bigotry. It may not have happened yet, but until the bill actually passes, we only need wait to see what will happen. It's very easy to say "this won't happen" but unless you've been discriminated against in the past, or have family members and friends who might be discriminated against, this bill is really scary. I can't tell you how many nights I've lain awake thinking about RFRA and how much it has scared me. It's very easy not to be afraid when you're not the one who might be on the receiving end of such discrimination.

Pete Boggs said...

So FI proponents assert the illogic, that legislation somehow cures hatred & that forced association is somehow an act of "love?" That's less than enlightened or brilliant...

Anonymous said...

I'm tired of people wanting special rights just because they believe in a magic wizard in the sky.

Pete Boggs said...

Anon 1:02 is exactly right. Rights aren't categoric or "special." There are only human rights, hyphenations thereto are an imposition of tyranny under the abusive guise of exception or privilege.

Anonymous said...

I thought there was suppose to be a separation of Church and State. Then why do we let these religious zealots clog our courts and political process with abortion and gay marriage and special religious rights? If these people don't want to live up to their part maybe churches should start paying taxes. Enough already. If you think the Bible is the word from God, fine live by it, but stop trying to impose your dogma unto others. It's un-American.

Anonymous said...

I am Anon 12:10 (March 20). I am not a US Constitutional scholar. Just as I ask my fellow gay men and lesbian women "where in the US Constitution does it forbid a man from marrying a man or a woman marrying a woman?" [it doesn't] I have to ask Anon 6:51 am (3/22) "where in the US Constitution is there a specific prohibition of the "wall of separation" of Church and State"? From my research, it appears that does not exist. And this is why I comment- I am so tired of arguments that may reflect repetition or "common wisdom", especially on matters important to LGBT persons, when there are no facts underlying the "common wisdom" statements.

What I find at Article VI, Paragraph 3, is a prohibition against a religious test: "...The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States." It is this paragraph that has been shorthanded to "a wall of separation between church and state" where that actually may not be what the Constitution intends.

Anon 6:51 fails to see the irony of his (or her) comment. Does Anon 6:51 believe forcing others to align to his (or her) belief system is more "American" than otherwise?

I am not here for debate but I am here as a Conservative out gay man; when I say "Conservative" I mean Conservative as in the tradition of Bastiat, Locke, Smith, Voltaire, etc., and certainly not as a faux or "RINO" so-called conservatives such as John McCain, Mitt Romney, any of the Bushes, Bob Dole, Lindsey Graham, Susan Brooks, etc. I am here as an out gay Conservative who has been the personal target of, and who has seen other LGTB Conservative persons experience, the hateful, bullying intolerance exhibited by my own community against all LGTB members who deviate from the left of center liberal Democrat party line.

The liberal Democrat media machine and liberal Democrats in general work to divide my community- and all minority communities- using calls for "rights", "fairness", "equality"- when we already have those rights by our very existence. It is the liberal politician demagogues who break our social compact and work to break our power by breaking up our various social communities. Ignorance is dangerous and expensive. Soon will come the left liberals writing how "dangerous" I am, not to mention I am the crazy one. And perhaps they are right about a gay person lie me being "dangerous". Truth is always a danger to distortion and deception.

Anonymous said...

First let me say that I don't read the Bible, I decided to live my life by a better fictional book, Harry Potter. So let me get this right, if someone takes a picture of a gay or sells them a piece of cake they go straight to Hell? Man, Jesus sounds like an intolerant, homophobic dick.

Anonymous said...

I'm tired of people who want special rights because they want to be sick, disgusting and perverted degenerates.

RhondaLeeBaby69 said...

I can't wait for the first Catholic bakery to refuse to provide services to a remarrying couple.

Pete Boggs said...

I know a few Catholic bakers who routinely serve those of other faiths & Christian denominations. It would be the church or a priest who would permit a second marriage within the church under certain circumstances; which once approved would present no issue for the baker.

Susan said...

Too bad your legal 'analysis' is so lacking. Numerous legal scholars have written how Indian's law differs from the federal one. http://thinkprogress.org/lgbt/2015/03/30/3640374/big-lie-media-tells-indianas-new-religious-freedom-law/
It's also clear from the timing and who's supporting this law what the intent is: to enshrine discrimination. Even dumb-as-a-doorknob Jan Brewer in Arizona got that when she vetoed similar legislation.

And, notably, Indiana provides no LGBT anti-discrimination protections that might counter the exploitation of 'religious freedom' to punish one community.

Paul K. Ogden said...

Actually Susan numerous legal scholars have written in support of Indiana's law. The difference between Indiana's law and the federal RFRA is minor. Both bills restore the compelling interest test which is 95% of what the bill is about. A far as an RFRA sanctioning discrimination find me one case where it is ever done that. One case. You can't do that because it never has.

Susan said...

Paul, there hasn't yet been a case because the other RFRAs are different and weren't crafted by those actively working against gay marriage:

"Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens.*