It is interesting to see just how inept the left is when it comes to actual factual arguments rather than their usual shout-it-down type of political rhetoric. This morning, I saw an article in the Atlantic entitled "What Makes Indiana's Religious-Freedom Law Different?' For once, or so I thought, the liberals were actually going to debate the real facts. The Indiana law, you see, is almost identical to the federal statute drafted by Chuck Schumer and passed by the Democrats and signed by Bill Clinton. It is also almost identical to the laws on the books in over 20 other states. The fight in Indiana is actually a phony one that was ginned up to attack an attempt to preserve religious liberty.
According to the Atlantic article, there are two basic differences between the Indiana law and all the others which make it different and dangerous, indeed, a basis for discrimination. The first difference is that "the Indiana law explicitly allows any for-profit business to assert a right to 'the free exercise of religion.'” Neither the federal law nor almost all of the state laws address this issue. Okay, so far so good, at least until one actually considers the argument. Last year the Supreme Court of the United States considered whether or not a for-profit business could claim the right to free exercise of religion, and guess what, the Court decided that some corporations could, indeed, properly assert that right. What that means is that even though the federal statute has no language expressly about corporations, that federal statute allows a for-profit business to assert a right to the free exercise of religion. In other words, there is no difference between the Indiana law and the federal law on this point. Indeed, it is highly likely that the individual state laws will be interpreted in line with the Supreme Court decision in the future, so here too there is no difference.
But the Atlantic said there were two differences. Let's look at the second one. Here is the way the Atlantic article puts it:
The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.”
The big deal according to the Atlantic is that in Indiana, the government need not be a party to the proceeding. But is this really important or even surprising? Not really is the answer. Of the federal statute and the other twenty or so state statutes, only in one state (New Mexico) is there a requirement that the government be a party to the suit. There would have to be state involvement for the law to be invoked, but the state does not have to be a party. Perhaps an example would best illustrate this.
If an Indian tribe had an area of land on which its sacred rites were carried out and the local government issued a permit and hired a contractor to clear a fire control road across that land, the Indian tribe would have a claim under the Religious Freedom Restoration Act. This sort of situation was, in fact, one of the items that led to the original passage of the federal statute. The tribe could easily go to court to sue the government to stop construction with the claim being that the road could go around the sacred site with no problem for the government and no burden on the Indians' practice of their religion. Of course, the tribe could also go into court and sue the contractor only. They would seek an injunction against construction on exactly the same grounds. The government could be brought into that suit, but it might not be. Indiana's law just says the obvious that the government does not have to be a party.
Put all this together, and the Atlantic actually is proving the point that there is no meaningful difference between the federal and other state statutes and the one in Indiana.
According to the Atlantic article, there are two basic differences between the Indiana law and all the others which make it different and dangerous, indeed, a basis for discrimination. The first difference is that "the Indiana law explicitly allows any for-profit business to assert a right to 'the free exercise of religion.'” Neither the federal law nor almost all of the state laws address this issue. Okay, so far so good, at least until one actually considers the argument. Last year the Supreme Court of the United States considered whether or not a for-profit business could claim the right to free exercise of religion, and guess what, the Court decided that some corporations could, indeed, properly assert that right. What that means is that even though the federal statute has no language expressly about corporations, that federal statute allows a for-profit business to assert a right to the free exercise of religion. In other words, there is no difference between the Indiana law and the federal law on this point. Indeed, it is highly likely that the individual state laws will be interpreted in line with the Supreme Court decision in the future, so here too there is no difference.
But the Atlantic said there were two differences. Let's look at the second one. Here is the way the Atlantic article puts it:
The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.”
The big deal according to the Atlantic is that in Indiana, the government need not be a party to the proceeding. But is this really important or even surprising? Not really is the answer. Of the federal statute and the other twenty or so state statutes, only in one state (New Mexico) is there a requirement that the government be a party to the suit. There would have to be state involvement for the law to be invoked, but the state does not have to be a party. Perhaps an example would best illustrate this.
If an Indian tribe had an area of land on which its sacred rites were carried out and the local government issued a permit and hired a contractor to clear a fire control road across that land, the Indian tribe would have a claim under the Religious Freedom Restoration Act. This sort of situation was, in fact, one of the items that led to the original passage of the federal statute. The tribe could easily go to court to sue the government to stop construction with the claim being that the road could go around the sacred site with no problem for the government and no burden on the Indians' practice of their religion. Of course, the tribe could also go into court and sue the contractor only. They would seek an injunction against construction on exactly the same grounds. The government could be brought into that suit, but it might not be. Indiana's law just says the obvious that the government does not have to be a party.
Put all this together, and the Atlantic actually is proving the point that there is no meaningful difference between the federal and other state statutes and the one in Indiana.
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