Wednesday, April 1, 2015

Ensuring Religious Freedom Everywhere: Indiana

Former conservative Republican Congressman, Presidential candidate, and current Indiana Governor commands a great deal of respect with me.

He signed into law legislation which would raise the standard for filing lawsuits against small businesses, and create clear parameters for legal tests on whether there is an undue burden if a business chooses not to provide a certain service to someone.

His editorial in the Wall Street Journal provided some unique reading:

Ensuring Religious Freedom in Indiana

Our new law has been grossly misconstrued as a ‘license to discriminate.’ That isn’t true, and here’s why.

Last week I signed the Religious Freedom Restoration Act, known as RFRA, which ensures that Indiana law will respect religious freedom and apply the highest level of scrutiny to any state or local governmental action that infringes on people’s religious liberty. Unfortunately, the law has stirred a controversy and in recent days has been grossly misconstrued as a “license to discriminate.”
I want to make clear to Hoosiers and every American that despite what critics and many in the national media have asserted, the law is not a “license to discriminate,” either in Indiana or elsewhere. In fact, the Religious Freedom Restoration Act reflects federal law, as well as law in 30 states nationwide. Indiana’s legislation is about affording citizens full protection under Indiana law.

Affording citizens full protection under law: what a novel concept, right? Religious liberty matters, one of the five essential freedoms articulated in the First Amendment.

I abhor discrimination. I believe in the Golden Rule that you should “do unto others as you would have them do unto you.” If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore. As governor of Indiana, if I were presented a bill that legalized discrimination against any person or group, I would veto it. Indiana’s new law contains no reference to sexual orientation. It simply mirrors federal law that President Bill Clinton signed in 1993.

Discrimination gets a mixed reading in our times. We have to discriminate between right and wrong, don't we? Discrimination is more than an arbitrary distinction based on skin color. Art critics discriminate between good art and bad art, based on clearly defined standards.

As Prof. Daniel O. Conkle of Indiana University’s Maurer School of Law, a supporter of gay rights, including same-sex marriage, wrote last week in the Indianapolis Star: “The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a ‘license to discriminate,’ and it should not be mischaracterized or dismissed on that basis.”

Indiana State Flag

This argument is one of Gov. Pence's strongest points his column. Contrary to the misinformed belief of many on the left, there are many gay activists who discourage or resist the militant homosexual lobby, which personalizes, polarizes, then demonizes anyone who stands in the way of the "Gay Agenda".

People have asked why this is necessary. After all, the U.S. Constitution and the Indiana Constitution provide strong recognition of freedom of religion. But RFRA is in many ways overdue in Indiana.

In 1990 the U.S. Supreme Court ruled in Employment Division of Oregon v. Smith that the First Amendment’s free exercise clause could not be raised as a defense to generally applicable laws, even if the law infringed on a person’s religious liberty. In response, Congress passed and President Clinton signed the Religious Freedom Restoration Act in 1993. This law limits federal government action that would infringe upon religion to only those acts that did not substantially burden free exercise of religion, absent a compelling governmental interest and in the least restrictive means.

Wow. Bill Clinton sided with religious freedom advocates. At least there were some silver linings to his muddled Presidency.

For example, a public school in Texas in 2008 told a Native American kindergartner that he would have to cut his hair because of the school’s grooming policies. But keeping his hair long was part of his religious practice, which allowed his parents to prevail in federal court under RFRA.

Many states have enacted RFRAs of their own; 19 states have passed such laws and 11 state courts have interpreted the law to provide a heightened standard for reviewing government action. When President Obama was a state senator in Illinois, he supported Illinois’s version of the law in 1998. Historically, this law has received wide bipartisan support.

Ouch. Even Barack Obama approved of allowing individuals to stand for their religious liberties, and exempt themselves from participating in certain activities. The double-standard of the Left knows no bounds.

But Indiana never passed such a law. Then in 2010 came the Affordable Care Act, which renewed concerns about government infringement on deeply held religious beliefs. Hobby Lobby and the University of Notre Dame both filed lawsuits challenging provisions that required the institutions to offer certain types of insurance coverage in violation of their religious views.

Obamacare is an easy target to skewer. The Catholic Church wanted a government-mandated healthcare program, and got the Affordable Care Act, which was neither affordable nor caring. The gargantuan take-over of the health care industry intruded into the full faith and practice of different religious dominations, including the Catholic Church, but also the convictions of private business owners, who refused to subsidize or provide health insurance for abortions. The Burwell decision protect private corporations like Hobby Lobby from having to provide health insurance which included funding for abortion.

Yet today, private business owners are facing lawsuits, lost business, and foreclosure by refusing to provide services to homosexual couples. Whatever happened to propriety rights? Many businesses post a sign which reads "We reserve the right to refuse service to anyone." Individual business owners have the right to miss out on business, if they so choose. The state has no business mandating who has to welcome whomever.

Last year the Supreme Court upheld religious liberty in Burwell v. Hobby Lobby, based on the federal RFRA. With the Supreme Court’s ruling, the need for a RFRA at the state level became more important, as the federal law does not apply to states. To ensure that religious liberty is fully protected under Indiana law, this year the General Assembly enshrined these principles in Indiana law. I fully supported that action.

Some express concern that Indiana’s RFRA law would lead to discrimination, but RFRA only provides a mechanism to address claims, not a license for private parties to deny services. Even a claim involving private individuals under RFRA must show that one’s religious beliefs were “substantially burdened” and not in service to a broader government interest—which preventing discrimination certainly is. The government has the explicit power under the law to step in and defend such interests.

Thomas Jefferson noted, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.” I regret that false narratives and misrepresentations of the RFRA have taken hold.

Freedom of conscience is losing attention and salience in our times. Why do we find that more people cannot stand by their convictions? They are afraid of being convicted of a crime, certainly, but the push toward invading people's private thoughts and punishing them for believing that same-sex marriage is wrong should send huge warning signals to all freedom lovers.

The hospitality and character of Hoosiers are synonymous with everything that is good about America. Faith and religion are important values to millions of Indiana residents. With the passage of this legislation, Indiana will continue to be a place that respects the beliefs of every person in our state.

Faith and religion are not just important to Indiana residents, but to many Americans. Americans today need to reject the argument that the faith or conscience of an individual has no place in the public square. Individual businesses, based on conscience, science, and vetted tradition have the right and authority to resist any encroachment against that right.

The Indiana RFRA is not just about ensuring religious freedom in the Hoosier State, but freedom everywhere.


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