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Tag: religious freedom law
Doesn’t Mississippi Have More Pressing Concerns?

Doesn’t Mississippi Have More Pressing Concerns?

A portrait of Mississippi.

It has a lower percentage of high school graduates than almost any other state. It has an unemployment rate higher than almost any other state.

Mississippi’s fourth-graders perform more poorly than any other children in the country in math. Also in reading. Its smoking rates are among the highest in the country. Along with West Virginia, it is the fattest state in the Union. It has the highest poverty rate and the lowest life expectancy.

Small wonder 24/7 Wall Street, a content provider for Yahoo!, Time and USA Today, among others, has dubbed Mississippi the “worst state to live in.”

All of which provides a certain pungent context for what happened last week as Gov. Phil Bryant signed into law a bill legalizing discrimination against LGBT people. It is dubbed the “Protecting Freedom of Conscience from Government Discrimination Act,” which is a cynical lie. The only thing it protects is those doing the discriminating.

You want to refuse to rent to a lesbian couple? You’re covered.

You want to refuse to hire a transgendered woman? Go for it.

You want to force your gay adopted son to undergo so-called conversion therapy? No problem.

You want to kick an adulterous heterosexual out of your hardware store? Yep, the law says you can even do that.

Indeed, it says that any gay, transgendered or adulterous individual whose behavior offends the “sincerely held religious beliefs or moral convictions” of a person, for-profit business, government employee or religious organization can be refused service.

As if your sexual orientation or marital status were the business of the cashier ringing up your groceries or the barber trimming your hair.

It is worth nothing that similar laws have been propounded in other states — Georgia, Indiana, Arkansas — only to be turned back under threat of boycott by Fortune 500 companies and professional sports teams doing business there. “The worst state to live in,” was immune to that kind of pressure because it has no such teams or businesses.

You’d think that would tell them something. You’d think it would suggest to Mississippi that it has more pressing concerns than salving the hurt feelings of some putative Christian who doesn’t want to bake a cake for Lester and Steve.

But addressing those concerns would require serious thought, sustained effort, foresight, creativity and courage. It is easier just to scapegoat the gays.

So the fattest, poorest, sickest state in the Union rails against LGBT people and adulterers and never mind that if every last one of them pulled up stakes tomorrow, Mississippi would still be the fattest, poorest, sickest state in the Union.

The point is not that such bigotry would be impossible in places that are healthier or wealthier. The point is not that such places are immune to it. Rather, the point is simply this: Isn’t it interesting how reliably social division works as a distraction from things that ought to matter more?

After all, Mississippi just passed a law that 80 percent of its eighth-graders would struggle to read.

If they graduate, those young people will look for work in a state with an unemployment rate significantly higher than the national average. But if one of those kids does manage to find work at the local doughnut shop say, she will — until the law is struck down, at least — have the satisfaction of refusing service to some gay man, secure in the knowledge that the state that failed to educate her or give her a fighting chance in a complex world, now has her back.

One feels sorrier for her than for the gay man. Her life will be hemmed by the fact of living it in a state that fights the future, that teaches her to deflect and distract, not resolve and engage.

The gay man can buy doughnuts anywhere.

(Leonard Pitts is a columnist for The Miami Herald, 1 Herald Plaza, Miami, Fla., 33132. Readers may contact him via e-mail at lpitts@miamiherald.com.)

(c) 2016 THE MIAMI HERALD DISTRIBUTED BY TRIBUNE CONTENT AGENCY, LLC.

Photo: Steve Sands takes pictures of the rising waters in the Mississippi River as flood waters approach their crest in Greenbelt Park in Memphis, Tennessee January 4, 2016.   REUTERS/Karen Pulfer Focht  

Three Factors That Make Indiana’s Religion Law Different From Other States’

Three Factors That Make Indiana’s Religion Law Different From Other States’

By Erwin Chemerinsky, Los Angeles Times (TNS)

The Indiana statute is the culmination of a long, murky legal history that reaches back to the 1990 Supreme Court case Employment Division v. Smith, which significantly changed the standard interpretation of the First Amendment’s free exercise clause. At issue was whether a Native American group could use peyote in religious rituals in violation of an Oregon law. The court ruled that it could not — because the state law was “neutral,” in that it was not motivated by a desire to curtail religious rights, and because it applied to everyone in the state.

Legal precedent prior to 1990 dictated that the government could substantially burden a person’s practice of his or her religion only if its action was necessary to achieve a compelling government purpose. But in Smith, the court established that the free exercise clause could not be used to challenge a neutral law of general applicability no matter how much the law burdened religion.

So, before Smith, a priest in a dry county who wanted to use wine in communion surely would have prevailed in court. After Smith, he would have lost because the law prohibiting consumption of alcohol was a neutral law of general applicability.

In 1993, Congress, with strong bipartisan support, passed and President Clinton signed the federal Religious Freedom Restoration Act. Its stated goal was to restore religious freedom by statute to what it previously had been under the Constitution. The law provides that whenever the government substantially burdens religion, even with a neutral law of general applicability, its action is illegal unless proven to be necessary to achieve a compelling government interest.

The next development came in 1997, when the Supreme Court declared the act unconstitutional as applied to state and local governments because it exceeded the scope of Congress’ power. But the law remained constitutional as applied to the federal government, and was the basis for the court’s decision last June in Burwell v. Hobby Lobby. In that case, the court held, 5 to 4, that it violated the Religious Freedom Restoration Act to require a closely held corporation to provide contraceptive coverage if that contradicted its owners’ religious beliefs.

The new Indiana law has the same title and contains the same language as the federal statute. Like the federal law, the Indiana version provides: “A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

But the Indiana and federal statutes are not wholly identical. The Indiana law, unlike the federal RFRA, builds on Hobby Lobby by expressly providing protection to corporations and other business entities. That’s one reason to worry that the purpose of the Indiana law is to allow discrimination against same-sex couples based on business owners’ religious beliefs.

Another reason for concern is timing. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith and 22 years after the enactment of the federal statute? There is a widespread consensus across the political spectrum that the Supreme Court is about to recognize a right to marriage equality for gays and lesbians and hold that state laws prohibiting same-sex marriage violate the Constitution. This law appears to be a reaction to that development.

The rhetoric surrounding the Indiana law is also troubling. In fact, over and over in his interviews, Pence has refused to deny that the law would permit discrimination. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

This is why there are loud protests against the Indiana law and calls for boycotts of the state. But Indiana could easily solve this controversy by amending the law to provide that no one can discriminate against others based on sexual orientation, sex or race under the statute or on the grounds of religious beliefs.

Erwin Chemerinsky is dean of the University of California, Irvine School of Law. He wrote this for the Los Angeles Times.

Photo: Adam Fagen via Flickr