Author Topic: A question about the Religious Freedom laws going around these days.  (Read 1196 times)

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Offline podkarpatska

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A want to pose this question NOT to get into politics, but to look more closely at the possible implications of the Indiana law. Take it out of the gay context. Make it divorce and remarriage. If you recall, last fall we had some spirited discussions here about the differences between the Orthodox point of view and that of the Roman Catholic Church. Some devout and sincere Roman Catholics were quite critical and disapproving of the Orthodox practice. SO here is a hypothetical to ponder:

An Orthodox Christian couple is planning a wedding in the parish of the bride-to-be. The groom was previously married in a Roman Catholic church but his wife ran off with another man, divorced her first husband and civilly remarried. He has obtained an ecclesiastical divorce from the Orthodox church and/or blessing from the Orthodox bishop to be married again in his new wife's parish by the pastor, a canonical Orthodox priest.

A devout Roman Catholic wedding photographer and friend of the bride's mom is approached to photograph the wedding and he immediately agrees, a down payment is exchanged and that is ....resolved..or is it?

The couple meets with the caterer at the local Knights of Columbus hall and is so delighted by the facility and the price that they immediately put a ten percent downpayment down and book the hall.

About a month before the wedding, both the photographer and the caterer learn that the groom, having been married lawfully according to the rules of their church was divorced and is getting remarried in the Orthodox Church. They are concerned and consult their Roman Catholic priest who advised them that to participate by providing services to these folks would not violate any dogma or doctrine of the Roman Catholic faith.

None the less, they are outraged and decide to cancel out on the photography and the catering even though their personal "religious
belief is neither compulsory or central to a larger system of religious belief" of the Roman Catholic church. (Chapter 9, Section 3 (b) (2) of the new Indiana law so states as quoted.

The couple scrambles and finds an alternative photographer and catering hall at twice the price. Like any American, they file suit against the first photographer and caterer for the difference.

Neither the state, the local government nor the federal government, not any agency thereof, is a party to their lawsuit. Again this is not required by the law.

The defendants raise the new law as an absolute defense to their decision to cancel out and move to dismiss the case.

Frankly, I think the answer lies in whether the status of being divorced protects one from discrimination generally under Indiana law. But - if under the same law, gay people may marry - therein lies the conundrum. Section seven of the law, dealing with private actions like this one is vague as I read it and does not address the question I raise. So...it would be left to the Indiana courts to interpret the application of the law to the facts I laid out.

I am interested in both general responses and technical ones from anyone with a background in either Indiana state law or comparative state or local  law.


Offline vamrat

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Re: A question about the Religious Freedom laws going around these days.
« Reply #1 on: March 31, 2015, 02:09:48 PM »
In your hypothetical scenario, there is a breach of contract based on the down payments.
« Last Edit: March 31, 2015, 02:10:20 PM by vamrat »
Das ist des Jägers Ehrenschild, daß er beschützt und hegt sein Wild, weidmännisch jagt, wie sich’s gehört, den Schöpfer im Geschöpfe ehrt.

Offline vamrat

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Re: A question about the Religious Freedom laws going around these days.
« Reply #2 on: March 31, 2015, 02:31:02 PM »
There are court cases that can be looked up to show how the law has been utilized in the past.  From CNN:

Quote
Have these "religious freedom restoration" laws already been used as legal defenses?

Yup. The Human Rights Campaign pointed CNN to several cases in which individuals have used these laws in court -- and not just in cases involving LGBT people and weddings.

A police officer in Oklahoma claimed a religious objection when he refused to police a mosque. A police officer in Salt Lake City cited his "religious liberty" when he refused to police a gay pride parade.

A photographer in New Mexico used religious freedom as a defense for not serving a lesbian couple in 2013.
http://www.cnn.com/2015/03/27/politics/indiana-religous-freedom-explainer/

I do not know all the details of how these cases turned out.  But there is apparently precedent for this.
Das ist des Jägers Ehrenschild, daß er beschützt und hegt sein Wild, weidmännisch jagt, wie sich’s gehört, den Schöpfer im Geschöpfe ehrt.

Offline podkarpatska

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Re: A question about the Religious Freedom laws going around these days.
« Reply #3 on: March 31, 2015, 02:40:07 PM »
The problem comes up when the statute creates a private right of action that does not require that the government be a party.

I view these laws as smokescreens that sound like they do great good, while deceiving those who expect them to really change or do anything to advance religious belief.


Offline homedad76

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Re: A question about the Religious Freedom laws going around these days.
« Reply #4 on: March 31, 2015, 02:48:16 PM »
On the federal level up until last year the only cases had to do with actual religious practices, actually the use of marijuana in religious ceremonies.  And the RFRA was succesfully used as a defense.  Things changed last year with Burwell v Hobby Lobby when the court upheld not only that a religious exercise did not have to be an actual "religious exercise" but that a company could have a religion under supposedly limited circumstances.

Under your scenario yes the wounded party could sue and the vendor could attempt to use the RFRA as a defense.  Would it stand up to scrutiny.. hard to say.  But the law is so vague and the precedent so muddled the fact the courts could be swamped with litigation is very real.
"However hard I try, I find it impossible to construct anything greater than these three words, 'Love one another' —only to the end, and without exceptions: then all is justified and life is illumined, whereas otherwise it is an abomination and a burden."

—Mother Maria of Paris

Offline homedad76

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Re: A question about the Religious Freedom laws going around these days.
« Reply #5 on: March 31, 2015, 02:51:58 PM »
The problem comes up when the statute creates a private right of action that does not require that the government be a party.

I view these laws as smokescreens that sound like they do great good, while deceiving those who expect them to really change or do anything to advance religious belief.

The problem is that in places where the statutes don't expressly say so the courts have gone both ways on it.  Heck the federal RFRA was actually a legislative answer to indecision by the courts in the first place.  The fact that the act of baking a cake or protecting a crowd can be seen as much of a religious practice as permitting alcohol to children in a religious ceremony (didn't see that one coming did you?) may sound ridiculous... but when you have a powerful group of unchurched evangelicals trying to run the show the waters get kind of murky.  The courts haven't helped this.

And since when should any law "advance religious belief"?  Protect your ability to express it and live by it, sure (to a point) but for me nothing should be codified in law without a sound, secular reason for doing so.  But there are people in this country for whom religion and country are so tightly wound they are inseparable.  I am not one of them but I do believe they have the right to believe their own delusions and to act accordingly.  Where I have a problem is when their beliefs threaten my or a friend's right to not be treated like a second class citizen.
« Last Edit: March 31, 2015, 02:56:45 PM by homedad76 »
"However hard I try, I find it impossible to construct anything greater than these three words, 'Love one another' —only to the end, and without exceptions: then all is justified and life is illumined, whereas otherwise it is an abomination and a burden."

—Mother Maria of Paris

Offline vamrat

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Re: A question about the Religious Freedom laws going around these days.
« Reply #6 on: March 31, 2015, 03:02:25 PM »
I don't think the law (if I am reading things right) cuts out the government as a party, but holds it to Strict Scrutiny.  There must be Compelling Government Interest before they get involved.  So, if your religion requires human sacrifice, you might be ship out of luck because the government has an interest in keeping people alive (results may vary). 

The crux of the matter is going to be which liberties hold precedence - freedom from discrimination vs free exercise.  Just as the .govs cannot bar you from exercising your religion (once again, results may vary) it also cannot, ostensibly, force you to take part in a religion.  With the gay cakes issue, this is getting on shaky grounds as you are selling a product.  If you are selling prophylactics, I don't think you can sell them based on the manner they will be used.  But a photographer should not be forced to attend something they find abhorrent.  Should a photographer be forced to film pornographic acts?  Should they be required to attend something they consider a mockery of the Sacraments?  This could go for gay marriage or a marriage between divorced people as you describe. 

Das ist des Jägers Ehrenschild, daß er beschützt und hegt sein Wild, weidmännisch jagt, wie sich’s gehört, den Schöpfer im Geschöpfe ehrt.

Offline podkarpatska

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Re: A question about the Religious Freedom laws going around these days.
« Reply #7 on: March 31, 2015, 04:20:39 PM »
I don't think the law (if I am reading things right) cuts out the government as a party, but holds it to Strict Scrutiny.  There must be Compelling Government Interest before they get involved.  So, if your religion requires human sacrifice, you might be ship out of luck because the government has an interest in keeping people alive (results may vary). 

The crux of the matter is going to be which liberties hold precedence - freedom from discrimination vs free exercise.  Just as the .govs cannot bar you from exercising your religion (once again, results may vary) it also cannot, ostensibly, force you to take part in a religion.  With the gay cakes issue, this is getting on shaky grounds as you are selling a product.  If you are selling prophylactics, I don't think you can sell them based on the manner they will be used.  But a photographer should not be forced to attend something they find abhorrent.  Should a photographer be forced to film pornographic acts?  Should they be required to attend something they consider a mockery of the Sacraments?  This could go for gay marriage or a marriage between divorced people as you describe.

These are all complicated questions and the law brings them to something of a head if we look beyond the reflexive right/left divide.

The Indiana law as written differs from the federal and most other similar state laws as it  does create a private right of action where the government is not a party. From that comes all of the concern. Applying strict scrutiny and compelling state interest tests in issues revolving around personal religious beliefs is troublesome, for if you do not accept the premise that any professed belief when colored with the prefix 'religious' becomes either protected or subject to government review you have opened Pandora's box. That is why I suggested from the start of my post to take the issue out of the context of Gay marriage.

As to 'forcing' a photographer to film this or that he finds abhorrent, if he finds biracial marriage contrary to God's law can he rightly decline to photograph it, or if he runs a bed and  breakfast decline to rent a room or serve a meal? May he decline to cater a non Kosher reception for a Jewish couple married in a Reform Temple? Be careful before you answer this.

If an Orthodox church in Indiana were to run a hospital which serves the public like a Catholic one, may it refuse to hire a Jewish physician or an unbeliever? Even if, as is the case in Catholic health care, the professional employee agrees contractually  to abide by the restrictions on practice required by the Catholic faith?

Long ago Brandeis aptly observed that hard cases make bad law. These cases are indeed hard and i fear that the ambiguities in these laws will lead to either bad law, or like the laws dealing with pornography, they will remain on the books but be ineffective and of little practical use.
« Last Edit: March 31, 2015, 04:22:08 PM by podkarpatska »

Offline vamrat

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Re: A question about the Religious Freedom laws going around these days.
« Reply #8 on: March 31, 2015, 04:36:06 PM »
If anyone is interested, the law can be found here: https://iga.in.gov/legislative/2015/bills/senate/101#document-92bab197

I am going to try and educate myself before replying to your post, podkarpatska.
Das ist des Jägers Ehrenschild, daß er beschützt und hegt sein Wild, weidmännisch jagt, wie sich’s gehört, den Schöpfer im Geschöpfe ehrt.

Offline homedad76

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Re: A question about the Religious Freedom laws going around these days.
« Reply #9 on: March 31, 2015, 05:06:44 PM »
The main difference between the interracial marriage question and the filming porn has to do with how the courts recognize the need for "protected status".  The argument is that members of minority groups need protection because of historical discrimination but also, and mostly, because allowing discrimination would effect members of the minority disproportionately.  As of right now we don't base that on what people do but who they are.  "People who like being filmed having sex" is not a recognized minority group but the future shall see.  Now one could argue that extending marriage rights and in turn protecting that from discrimination is forcing somebody to participate in an act they find morally wrong.  But here is the flip side...  if the state does not allow some kind of civil union then they are technically saying to one group of people that the only way they can access certain benefits (like tax benefits, benificiary status, bickering, lack of sex, horrible in-laws...) is to act against their conscience and marry a person of the opposite sex.  Of course there is some nuance here but anyone who thinks this is simple is deluded.
"However hard I try, I find it impossible to construct anything greater than these three words, 'Love one another' —only to the end, and without exceptions: then all is justified and life is illumined, whereas otherwise it is an abomination and a burden."

—Mother Maria of Paris

Offline vamrat

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Re: A question about the Religious Freedom laws going around these days.
« Reply #10 on: March 31, 2015, 05:17:17 PM »
If I am reading this right (legislation and sausages indeed!) -

Section 9: This law can be used as a defense even if the the government entity is not a party.  So, Joe Bob vs First Crystal Methodist Church, the State of Indiana is not a party, they did not do the interfereing in religion, but this law can still be used as a defense by the First Crystal Methodist Church.  The .govs would then be unconditionally required to intervene due to convocation of this law as defense.

I think this is more recognition of things that can exist - two private entities suing one another.  (E.g. - the Colorado gay cake case - Craig vs Masterpiece Cakeshop.) 

Section 11 states: 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. 

I am not 100% fluent in Legalese but this sounds like it is trying to NOT make a case for private action.

Das ist des Jägers Ehrenschild, daß er beschützt und hegt sein Wild, weidmännisch jagt, wie sich’s gehört, den Schöpfer im Geschöpfe ehrt.

Offline vamrat

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Re: A question about the Religious Freedom laws going around these days.
« Reply #11 on: March 31, 2015, 05:24:14 PM »
As to 'forcing' a photographer to film this or that he finds abhorrent, if he finds biracial marriage contrary to God's law can he rightly decline to photograph it, or if he runs a bed and  breakfast decline to rent a room or serve a meal? May he decline to cater a non Kosher reception for a Jewish couple married in a Reform Temple? Be careful before you answer this.

If an Orthodox church in Indiana were to run a hospital which serves the public like a Catholic one, may it refuse to hire a Jewish physician or an unbeliever? Even if, as is the case in Catholic health care, the professional employee agrees contractually  to abide by the restrictions on practice required by the Catholic faith?

Long ago Brandeis aptly observed that hard cases make bad law. These cases are indeed hard and i fear that the ambiguities in these laws will lead to either bad law, or like the laws dealing with pornography, they will remain on the books but be ineffective and of little practical use.

Do you want my opinion on these paragraphs?  I ask because I cannot guarantee what percentages of this opinion will be based on solid legal precedent or just talking out of my bum.   



"Of course there is some nuance here but anyone who thinks this is simple is deluded."  You ain't kiddin', homedad.


EDIT/ADDENDUM - Regardless, I am going to spend some time thinking about this.  If I have veered towards politics (in a polemical/ideological fashion) that was not my intent.  I have been trying to look at the legal situation as I don't think we can really talk about the religious implications without reaching an understanding of what this law is and does.
« Last Edit: March 31, 2015, 05:41:58 PM by vamrat »
Das ist des Jägers Ehrenschild, daß er beschützt und hegt sein Wild, weidmännisch jagt, wie sich’s gehört, den Schöpfer im Geschöpfe ehrt.