More Economic & Legal Details on Indiana’s RFRA Law

This morning, I described the potential economic cost of the backlash Indiana’s RFRA law. There was some pushback, but emailers were quickly disabused of the falsity of their statements. A few factual clarifications and a few last details will round out what some people may not understand.

First, the Indiana legislation is different from other “Religious Freedom” laws. The language of the Indiana law differs from both Federal most other state RFRA legislation:

The Indiana statute has two important differences from the federal RFRA—and most state RFRAs.

First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs (South Carolina is the lone exception). Louisiana and Pennsylvania explicitly exclude for-profit businesses from the protection of their RFRAs.

Indiana statute also contains this 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.” (emphasis added) Neither the federal RFRA, nor 18 of the 19 state statutes cited by Cook in the Post, says anything remotely like this; (The 1999 Texas RFRA is somewhat similar).

There are more details here.

Second, legal scholars with an expertise in laws pertaining to religious matters as well as civil liberties had warned the Indiana legislators in advance of passage that this bill’s language had problems.

Third, the Indiana legislation follows the Hobby Lobby Supreme Court case, and is such seemingly is an attempt to expand the ‘natural’ rights of corporations. This is the natural legal progression, and laws passed prior to Hobby Lobby are different in context.

Fourth, it is especially noteworthy that other states with similar religious freedom laws also have anti-gay discrimination laws. Indiana does not. This one factor has a simply tremendous difference in how such laws will be enforced. That missing element is why various companies looked at this as thinly veiled legislative discrimination.

Last, and perhaps most damning of all, the law was intended to send a message. As GLAAD showed in this revealing photograph, the backers of the bill are some of the nation’s most notorious homophobes. Despite the false protestations of Governor Pence, the invited participants to the private – not public — legislative signing ceremony is extremely revealing. Its no wonder that Pence has canceled numerous public appearances since the backlash to his legislation began. The governor’s claim the legislation had nothing to do with anti-gay motivations was revealed by Polifact as a half truth. I go further than that and call it bullshit.

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While there have been prior attempts at statewide boycotts, this is the first one discussed in the era of social media. The hashtag #BoycottIndiana quickly trended to the top of Twitter. That is driving a lot of the discussion.

Consider the NCAA contract with the Hoosier state. The collegiate sports association is headquartered in Indiana, and has a deal with the state to “host men’s Final Four every five years through 2039” in Indiana. There is pressure from some quarters to relocate both the NCAA and the Final Four out of Indiana. It is a novel legal question as to whether the new law is sufficient to allow the NCAA out of that deal.

But that is what might happen in the future. There has been significant immediate response to the law. These are already having an impact on the state’s economy. If this continues, the potential impact could run into the billions of dollars:

There have been other, less specific economic threats. Yelp CEO Jeremy Stoppelman wrote “it is unconscionable to imagine that Yelp would create, maintain, or expand a significant business presence in any state that encouraged discrimination by businesses against our employees, or consumers at large.” The Indiana Chamber of Commerce has criticized the law, calling it “unnecessary.” And states such as  Connecticut and Washington have banned official travel to Indiana over what they called the state’s LGBT discrimination law; San Francisco and Seattle have imposed similar travel bans.

Other localities have jumped on the controversy to court Indiana’s business community. Virginia Gov. Terry McAuliffe reached out to companies in Indiana, offering that “in Virginia, we do not discriminate against our friends and neighbors, particularly those who are supporting local businesses and generating economic activity.” both Cincinnati Council member Chris Seelbach (the first openly gay politician elected in that city) Tweeted last week that Cincinnati was recently named one of the most LGBT inclusive cities in the country and “we have taken every necessary step to make our laws fully inclusive.” Chicago Mayor Rahm Emanuel also jumped into the fray.

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There have been quite a few tortured explanations for why the Indiana law isn’t discriminatory, but I won’t link to any of these. The lawyer in me finds them to be intellectually disingenuous as well as morally repugnant.

 

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  1. scone commented on Mar 31

    Epic blowback followed by epic backpedaling. These guys are so socially isolated, they didn’t even think to ask themselves what the damage might be.

    • rd commented on Mar 31

      Many of them sincerely believe that their faiths are under assault. This is similar to the South in the Civil Rights era when many whites saw their way of life under attack. One of the most enlightening things I have ever seen was the “Freedom Riders” documentary a few years ago. The footage in it was mind-blowing. What I was astonished at was the looks of pure hate on the faces of the people who were fire-bombing the buses. The second-most astonishing thing was the complete nonchalance of the police officers as they stood around while citizens were assaulting and fire-bombing other citizens on buses.

      http://www.post-gazette.com/opinion/Op-Ed/2014/12/07/Can-gays-extend-an-olive-branch-Defeated-traditionalists-should-be-offered-conscientious-objector-status/stories/201412030183

      http://www.pbs.org/wgbh/americanexperience/freedomriders/

    • DeDude commented on Mar 31

      Yes the scary part is that these rednecks are exactly the same type of rednecks that produced absurd hate against another kind of “different” people back then. It is tribalism in hyperdrive and very dangerous. The only driver worse than hate is fear – and in this case these so-called “religious” fundamentalists have both in huge amounts.

  2. DeDude commented on Mar 31

    And so the saga of “corporations are people” continues. The idea of protecting a corporations “Religious Freedom” is patently absurd. Corporations are legal entities upon which government has bestowed an absurd amount of privileges, personhood should not be one of those – and the privileges should be granted with associated responsibilities.

    • willid3 commented on Mar 31

      just wait, some court (SCOTUS) will give business the right to vote. just wait

    • hue commented on Mar 31

      i believe Koch Industries is voting. i think it won Congress, almost all the statehouses with Alec, but can’t win the presidency, altho our corporate overlords did win Bush v. Gore

  3. Whammer commented on Mar 31

    Excellent screed Barry! I was talking to my in-laws the other day and they were asking me “what about the other states that already have these laws”, which gave me an opportunity to rant about our crappy “so called liberal” media.

    The Washington Post was just egregious the other day in its reporting, as though this Indiana issue is selective outrage.

    As I’m fond of saying nowadays, in particular to libertarians, that if you want the limited liability protection that is granted to you, BY THE GOVERNMENT, then you need to live by the rules that the very same government establishes. Sure, you can fight/lobby/etc., as you see fit, but I agree with DeDude — this “corporations are people” stuff is just unmitigated bullshit.

  4. DrSandman commented on Mar 31

    Iran is getting the raw material to make a nuclear bomb and the current administration is helping them. Let’s boycott Indiana. Squirrel!

    –Every liberal on this comment page.

    • ComradeAnon commented on Apr 1

      Lets stop the negotiations! Let’s bomb them! WCGW?

    • MikeInSF commented on Apr 1

      …because we can only do/debate one thing at a time.

  5. MarkKlose commented on Apr 1

    To give a little back-story on Gov. Pence, we turn to Matt Yglesias, who was working for Think Progress in 2008 when he wrote the following:

    There are very few members of congress with whom I’ve ever had the opportunity to discuss a substantive matter of public policy. But as it happens, one of them — the one with whom I’ve had the second-longest exchange — is Mike Pence (R-IN) who I’ve seen on television today repeatedly discussing the Republican Study Group’s “plan” for the financial crisis. And I can tell you this about Mike Pence: he has no idea what he’s talking about. The man is a fool, who deserves to be laughed at. He’s almost stupid enough to work in cable television.

    Specifically, way back in 2005 I got to talk to him about Social Security privatization at a Heritage Foundation event. Obviously, I have my perspective on this and conservatives have theirs. But Pence had a truly peculiar idea. His idea was that the government ought to reassure people about the risks of losses under a privatization plan by having the government guarantee a minimum annuity level pegged to what’s promised under current law. This plan would, according to Pence, save money relative to current law because most people’s stock/bond portfolio would outperform the level needed to provide such an annuity, so the government would only need to kick in for a minority of people. I said I thought this would create a moral hazard problem for bad investors. He had no idea what I was talking about. Seemed unfamiliar with the term. Then I tried to explain it to him, I said that if the government guaranteed to bail you out in case of losses, then investors would make riskier investments and the number of people who need bailing out would rise. He just flat-out denied this, said the presence or absence of a guaranteed bailout would have no impact on investor behavior. He seemed unaware that some portfolios are riskier than others, or that higher average rates of return are associated with greater risk taking. He didn’t know anything at all, in short, about investing, financial markets, or, seemingly, the basic terms of public policy. And yet there he was speaking on the topic at Heritage. He’s a total fraud.

  6. mikeinconyers commented on Apr 1

    Great coverage on this Barry. Thanks

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