Arkansas Governor Does Only a Partial Retreat on RFRA

Yesterday, the Arkansas legislature approved a so-called "Religious Freedom Restoration Act" bill similar to Indiana's RFRA. Today, the governor surprised people by rejecting the bill as written and asking for changes. As CNN reports:

Arkansas Gov. Asa Hutchinson says he does not plan to sign the religious freedom bill that sits on his desk right now, instead asking state lawmakers to make changes so the bill mirrors federal law.

The first-term Republican governor said he wants his state "to be known as a state that does not discriminate but understands tolerance."

While the requested change would remove some of the dangerous aspects of the bills that differentiated them from the federal version, it would still leave the door open to state-sanctioned discrimination in the name of religion.

The federal RFRA dates back to 1993, and neither its text nor its purpose empower anyone to bypass laws protecting LGBT people from discrimination. However, as PFAW Senior Fellow Elliot Mincberg has written, the Supreme Court drastically rewrote the law last year in its 5-4 Hobby Lobby decision:

[As Justice Ginsburg explained in her dissent,] the Court effectively rewrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

That's why Gov. Hutchinson's call for a bill that matches the federal RFRA does not solve the discrimination problem. A state law tracking the federal RFRA and passed after Hobby Lobby is far more likely to be interpreted by the courts along the same lines. This is especially so since the bill's supporters regularly cite their desire to "protect" businesspeople who are religiously offended by same-sex couples from serving them.

The Arkansas and Indiana RFRAs have features making them even more open to be used as vehicles for otherwise illegal discrimination than the federal RFRA as transmogrified by the Roberts Court. But if Gov. Hutchinson succeeds in getting a bill that matches the federal version, he still will not have accomplished his stated goal of making Arkansas "known as a state that does not discriminate."

PFAW

Gov. Pence's Claims Ignore Indiana "Religious Freedom" Law's History

As he has since signing Indiana's so-called Religious Freedom Restoration Act, Governor Mike Pence today insisted that the law does not allow discrimination. As reported in the Indianapolis Star:

[Pence] stressed that RFRA was about "religious liberty, not discrimination" and emphasized that the law does not give anyone the right to turn away customers on religious grounds.

"This law does not give anyone the right to discriminate...This law does not give anyone the right to deny services," he said.

Let's rewind the tape to the legislative debate over the bill. Senate Amendment # 4 would have added a key provision to the bill that would have made Gov. Pence's words accurate.

This chapter does not apply to:

(1) IC 22-9-1 (Indiana civil rights law); or

(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.

However, the state Senate defeated this amendment by a lopsided vote of 10-40.

The Indiana House was equally insistent that the bill not be amended to provide any protection to state and local anti-discrimination laws. House Amendment # 5 would have added the following text to the law:

For purposes of this chapter:

(1) the protection of civil rights; or

(2) the prevention of discrimination;

is a compelling government interest.

Unlike the Senate amendment, this would not have completely exempted anti-discrimination laws from attack under RFRA. Nevertheless, this more moderate effort to make it harder to bypass such laws was still too much for the House, which overwhelmingly rejected the amendment in a 31-60 vote.

It would be nice to think that Governor Pence was right, and that this law didn't open the door to discrimination. But that is exactly what the law does, and its history makes that even clearer.  If Pence wants to "clarify" that the state's RFRA law won't allow denial of service, he can point legislators to amendment language that would make that as clear as day.

PFAW

Hobby Lobby Comes Home to Roost as States Consider "Religious Freedom" Legislation

This op-ed was originally published at The Huffington Post.

Over the last twenty years, 19 states have passed laws modeled on the federal Religious Freedom Restoration Act (RFRA), which was enacted in 1993 with broad bipartisan support. But just this year, almost the same number, 15, have seen such bills introduced, generating enormous controversy across the country, particularly in Indiana where Gov. Mike Pence signed the new state RFRA into law.

Why the huge uptick now? As one of those involved in the original drafting and passage of RFRA in 1993, I think it's a combination of the perceived dangers to the far right from the move towards LGBT marriage equality and the perceived opportunity created just last year by the 5-4 Supreme Court's rewriting of RFRA in Burwell v. Hobby Lobby.

Even before the Supreme Court agreed to decide the marriage equality issue, the far right has highlighted the supposed dangers to small businesses like bakers and florists who do not want to serve LGBT couples because of religious objections. Under RFRA as passed in 1993, and under the protection from the First Amendment's Free Exercise doctrine that it was meant to restore, RFRA wouldn't have offered much help. First, neither had been applied to non-religious corporations, which had never been thought to have religious freedom rights. Second, it would have been very hard to argue that a neutral law banning discrimination against LGBT people would have created a "substantial burden" on actual religious exercise, which is required to qualify for a RFRA-type exemption. For example, in one case the Supreme Court rejected the claim that requiring federal welfare recipients to submit social security numbers was such a burden even when it conflicted with an applicant's religious beliefs. And even if such a burden were created by obeying an anti-discrimination or other general law, pre-Hobby Lobby law would not have helped a religious claimant: as the Court ruled in rejecting a religious exemption to a requirement that a religious farmer withhold social security taxes, such an exemption would improperly "operate to impose the employer's religious faith on the employees" and others.

But then came Hobby Lobby.

In that case, writing for a bare majority of the Court, Justice Alito ruled that religious objections by a corporation's owners exempted them under RFRA from providing contraceptive coverage through insurance to employees under the Affordable Care Act. As Justice Ginsburg explained in dissent, rather than interpreting RFRA to restore prior case law, the majority interpreted it as going beyond prior Court decisions to maximize benefits to religious claimants. In particular, she explained, the Court effectively re-wrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

So for far-right activists and legislators concerned about LGBT marriage equality and other rights, Hobby Lobby provided the perfect opportunity: pass state RFRA laws and effectively grant a religious exemption claim from LGBT anti-discrimination laws and local ordinances, based on the Court's re-writing of RFRA's language. Indeed, in communicating with supporters about the Indiana RFRA law, the far-right Family Research Council specifically called it the "Hobby Lobby bill."

Even better, rhetoric directed at outsiders could be cloaked in general language about protecting religious freedom, not attacking LGBT rights. Supporters could even invoke Democratic supporters of RFRA like President Clinton and claim that neither RFRA nor its state counterparts had been interpreted to allow discrimination, as Indiana Gov. Pence has tried to do. These claims ignore the fact that it wasn't until last year that the Supreme Court effectively rewrote the language in RFRA so that it was transformed from a shield for religious liberty into a sword against anti-discrimination protections. And previous supporters like President Clinton have made clear their opposition to this year's state RFRA proposals.

Under pressure, the neutral façade of recent state RFRA proposals has crumbled. When pushed to amend a state RFRA proposal in Georgia to make clear that it could not be used against anti-discrimination ordinances, a Georgia legislator admitted that one of the reasons for the bill was to allow it to be invoked by the small business owner who had religious objections to providing services to an LGBT couple. And when an amendment was added in the Georgia House Judiciary Committee to state that the RFRA bill was not to be used against discrimination laws, the bill was promptly tabled on March 26, with a supporter stating that the amendment would "gut" the bill.

As of now, the fate of RFRA bills in Georgia and elsewhere is uncertain and Gov. Pence has asked the legislature for an amendment to "clarify" that Indiana's RFRA law cannot be used to deny services to anyone. That would be a welcome step - one that flies in the face of the clear intent of some of the bill's backers, which was clearly to enshrine such a "right" for Indiana businesses. Language has been adopted elsewhere to make clear that state RFRAs cannot be used against anti-discrimination bills; such a provision is currently in Texas' RFRA, although there is a proposal to remove it. Before Hobby Lobby, such language might not have been necessary. After Hobby Lobby, it is crucial.

PFAW

Let Freedom (and Wedding Bells) Ring

With the far-right Roberts Court, it's usually good news when they choose not to address a case, and that's especially so this morning: The Court announced it will not be hearing the appeals of any of the pending marriage cases.

That means the stays of the Fourth, Seventh, and Tenth Circuits' pro-equality rulings should be lifted and marriages should soon be allowed in Utah and Oklahoma (10th Circuit), Indiana and Wisconsin (7th Circuit), and Virginia (4th Circuit).

And in the other non-equality states in those three circuits, loving couples can now go to court and cite their circuit's ruling as binding precedent guaranteeing their right to marry. And they should win: Each circuit decision binds district courts and other three-judge appellate panels in the circuit. The only way to avoid the application of three-judge panel’s decision to other states in the circuit would be for there to be a contrary ruling by a panel - called an en banc panel - made up of all of the active appellate judges in that circuit.

Congratulations to the loving couples in those states for whom the Constitution's promise of liberty and equality will no longer be ideals withheld from them. This is a textbook case of the federal courts doing exactly what they were set up to do: vindicating those whose basic legal rights have been violated.

PFAW Foundation

7th Circuit Says Arguments Against Marriage Equality "Cannot Be Taken Seriously"

Today's unanimous panel ruling by the Seventh Circuit striking down Wisconsin and Indiana's marriage bans is a well-written, carefully reasoned take-down of some of the ludicrous arguments that equality opponents have been making to defend their policy of discrimination. It was written by Richard Posner, a noted conservative put on the bench by Ronald Reagan, and joined by judges nominated by Bill Clinton and Barack Obama. Ruling on the basis of the Equal Protection Clause of the Fourteenth Amendment, the court summarizes its opinion nicely:

Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended—is so full of holes that it cannot be taken seriously.

Judge Posner writes:

Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.

He carefully considers the argument put forward by the states that marriage is restricted to one man and one woman to benefit children. Among the many ways this argument fails to hold water:

But then how to explain Indiana's decision to carve an exception to its prohibition against marriage of close relatives for first cousins 65 or older—a population guaranteed to be infertile because women can't conceive at that age? [Wisconsin also bans first cousins from marrying unless the woman is over 55 or where the couple presents a doctor's affidavit saying one of them is permanently infertile.] If the state's only interest in allowing marriage is to protect children, why has it gone out of its way to permit marriage of first cousins only after they are provably infertile? ... Elderly first cousins are permitted to marry because they can't produce children; homosexuals are forbidden to marry because they can't produce children. The state's argument that a marriage of first cousins who are past child-bearing age provides a "model [of] family life for younger, potentially procreative men and women" is impossible to take seriously.

With regard to the commonly heard refrain, echoed by attorneys for Indiana and Wisconsin, that courts should respect democratically-enacted bans on marriage by same-sex couples, Judge Posner points out what should be obvious to anyone who claims fealty to the United States Constitution:

Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.

Courts exist to enforce the Constitution against those who would subvert it. And that drives the right crazy.

PFAW Foundation

Indiana’s Marriage Ban Struck Down

In another win for equality, today U.S. District Judge Richard Young struck down Indiana’s ban on marriage for same-sex couples. Because the judge did not stay the ruling, the Indianapolis Star reports that couples can begin getting married right away.

Not a single state marriage ban has been able to withstand a challenge in federal court in the wake of the Supreme Court’s 2013 decision in United States v. Windsor, which struck down part of DOMA.

Congratulations, Indiana!

PFAW Foundation

PFAW Releases New Toolkit on Getting Money Out and Voters In to Our Democracy

Americans today face twin threats to the integrity of our elections. The threats are multifaceted and formidable, involving all branches of government at the local, state and federal level – from legislative bodies, to governorships, to courthouses. The aims are clear:

  • Manipulate the campaign finance system to get "the right people" elected.
  • Manipulate the balloting process to make it harder for "the wrong people" to vote.

These measures must be confronted. But we also need long-term proactive and pro-democracy strategies of our own.

The “Money Out, Voters In” campaign embodies this long-term vision premised on the concept of political equality, of one person = one vote.

We believe in a democratic system where all Americans have equal access to the voting booth and where all Americans, regardless of wealth, can express their views to one another and their government on a level playing field.

Through A Guide to Democratic Reform, a new toolkit released today by People For the American Way, we provide the structural framework for enacting this vision. We do not have all the answers, nor could we. We must embrace an evolution of ideas, tactics, and legislative language to achieve our goals. Yet, as the local, state, and federal initiatives cited herein show, much of that work is already well-underway.

Click here for information about critical allies and other resources.

PFAW

Richard Mourdock and the Supreme Court

Richard Mourdock's statement yesterday about rape and God's will, like so many other election issues, implicates the Supreme Court.

Mourdock and his allies are strongly anti-choice. The far right has been committed for a generation to populating our nation's courts with ideologues who will empower them to use government to impose their religious beliefs on everyone else. Most prominently, rather than letting a woman decide for herself whether to terminate a pregnancy consistent with her constitutional right to privacy, they have pushed for judges who will water down and ultimately reverse Roe v .Wade.

So while a strong majority of the Supreme Court recognized the constitutional right to choose an abortion in 1973, today's Court is hostile to reproductive freedom. Abortion rights have already been significantly circumscribed, and Mitt Romney has promised that if he is elected, he will nominate Justices like Antonin Scalia, Clarence Thomas, Samuel Alito, and John Roberts. A change in just one Justice will consign the constitutional right to abortion to history.

Similarly, despite the Constitution's Equal Protection Clause, the religious right demands the right to codify their hostility to gays and lesbians into law. The Supreme Court will almost certainly decide this term whether the federal government can refuse to recognize state-recognized marriages of lesbian and gay couples. But they may punt the larger issue of whether states that continue to restrict marriage to heterosexuals are acting consistent with the Fourteenth Amendment. How the Court decides will likely be determined by whether it is Barack Obama or Mitt Romney who nominates the next two or three Justices.

There's a reason that the far right is willing to let Mitt Romney pretend to be a moderate as the campaign heads toward Election Day. They know that if he becomes president – and especially if he is backed with a Republican-controlled Senate – the Supreme Court will be in their hands for a generation.

PFAW

Richard Mourdock's Religion Trumps Everyone Else's

Indiana Republican and Tea Party favorite Richard Mourdock is making headlines with his statement during a debate about rape, pregnancy, and God's will. As Talking Points Memo reports:

Defending his stance that abortion should be illegal even in the case of rape, Mourdock explained that pregnancy resulting from nonconsensual sex is the will of God.

"I've struggled with it myself for a long time, but I came to realize that life is that gift from God," Mourdock said. "And even when life begins in that horrible situation of rape, that it is something that God intended to happen."

The GOP Senate candidate sought to contain the damage with a statement this morning:

"God creates life, and that was my point. God does not want rape, and by no means was I suggesting that he does. Rape is a horrible thing, and for anyone to twist my words otherwise is absurd and sick," stated Richard Mourdock.

But no one is twisting Mourdock's words. He set out to explain why he wants the law to deny a raped woman the right to an abortion, and he did so clearly: Because he has a personal religious belief that God wants the woman to have a child.

That the woman may have a different religious belief is apparently irrelevant: Mourdock clearly believes that the law should reflect his theology, not hers. Unfortunately, that approach to governing, one which the First Amendment was adopted to prevent, is the founding principle of the religious right.

This calls to mind our affiliate People For the American Way Foundation's booklet 12 Rules For Mixing Religion and Politics, a publication designed to generate conversation on how to create and sustain a civic space reflecting our nation's Constitution and the values of respectful discourse. For instance, Rule Two states:

While it is appropriate to discuss the moral dimensions of public policy issues, religious doctrine alone is not an acceptable basis for government policy.

Because government represents all the people, not just those who share the faith of particular government officials, and because the First Amendment prevents the government from establishing religion, it is inappropriate for government policy to be based solely on religious doctrine. Debates over who speaks for God or who has a superior interpretation of scripture should not form the basis for policymaking.

This and the other rules for the road are explained in greater detail in the booklet. In a nation blessed with both democracy and a rich diversity of religious beliefs, we should not be using the law to codify our own theological positions.

PFAW

House votes to slam courthouse doors shut to immigration cases

Last month, the Supreme Court heard oral arguments in Arizona v. United States, a case that will examine key provisions of Arizona’s infamous and draconian immigration law, SB 1070. Sponsored by ALEC member and former Senate President Russell Pearce, and several others with ALEC ties, SB 1070 was developed in close consultation with ALEC and now stands as one of its model bills.

The Department of Justice argues that Arizona unconstitutionally usurped the federal government’s role in enforcing immigration law. PFAW and other opponents cite evidence of wrongful arrests, racial profiling, and discrimination, especially against Latinos and other minorities.

Now efforts are being made in to block court challenges to SB 1070 and similar laws in other states. On May 9, the US House passed Amendment 1063 by a 238-173 vote.

An amendment to prohibit the use of funds to be used by the Attorney General to originate or join in any lawsuit that seeks to overturn, enjoin, or invalidate Immigration Enforcement Laws in Oklahoma, Missouri, Arizona, Utah, Indiana, Alabama, South Carolina, and Georgia.

Note the especially selective list of states, through which anti-immigrant forces seem to be trying to muzzle DOJ only where they approve of the legislation that is (or might be) challenged, showing a profound and dangerous contempt for the rule of law.

As the ACLU put it:

The DOJ’s filing of this lawsuit proves [that] the department takes its role in stopping rampant racial profiling seriously. Congress should support the DOJ’s role in protecting the constitutional rights of those subjected [to] racial profiling, not tie the department’s hands as the House has with the Black amendment. It is now up to the Senate to ensure that the Black amendment doesn’t become law.

Thankfully, it’s likely that the Senate will do just that.

For more information on ALEC’s role with SB 1070 and other controversial bills, check out PFAW Foundation’s report on ALEC in Arizona (and its April 2012 update).

PFAW