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Mary Bonauto will argue in favor of marriage equality at the Supreme Court

LGBT Legal Cases Marriage equality Marriage Equality Trials

The U.S. Supreme Court. Attribution: Jeff Kubina
The U.S. Supreme Court. Attribution: Jeff Kubina
The plaintiffs in the Supreme Court challenges to same-sex marriage bans have announced the attorneys who will argue their case in front of the Court in April.

Mary Bonauto, one of the key architects of the same-sex marriage movement, and who has argued and won marriage cases in state and federal courts, will argue on “Question 1”, the question of whether states must license same-sex marriages. Bonauto is the Civil Rights Project Director at Gay and Lesbian Advocates and Defenders (GLAD).

Lawyers representing the plaintiffs had originally submitted a proposal that involved splitting the time between four different lawyers plus the United States Solicitor General. In their new letter, they note that the Court has asked them to pick one lawyer for each question presented, and not one for each case.

Their letter still suggests 15 minutes for the Solicitor General to argue on Question 1.

Douglas Hallward-Driemeier will argue on Question 2, the recognition question.

Thanks to Equality Case Files for these filings

78 Comments

  • 1. JayJonson  |  March 31, 2015 at 8:42 am

    More info about our attorneys.
    http://www.glbtq.com/blogs/attorneys_chosen_for_s

  • 2. DeadHead  |  March 31, 2015 at 8:43 am

    Douglas Hallward-Driemeier "has argued fourteen cases before the Supreme Court and filed more than 150 briefs in that Court." His bio, experience, awards and insight at https://www.ropesgray.com/douglashallward-driemei

  • 3. SethInMaryland  |  March 31, 2015 at 8:57 am

    isn't it sweet? , Mary was the first to argue and win lead marriage equality in a state and now she has chance to win the last couple of states

  • 4. dlejrmex  |  March 31, 2015 at 9:10 am

    I think it is a great pair. Hopefully Douglas can help Mary prepare to argue in front of the Supreme Court. I have to believe that, no matter how good of an attorney you are, it has to be a very different experience/situation.

    With all the new religious freedom bills, I suspect she may, unfortunately, have many more opportunities to do so again in the future.

  • 5. Zack12  |  March 31, 2015 at 9:49 am

    This is good news.
    We truly do have some of the best arguing for our side.

  • 6. Pbrover  |  March 31, 2015 at 10:54 am

    Hi SethInMaryland, I agree as well. It's an arch in both Mary's life work and our community's history in securing marital rights. It's a big moment made even more meaningful.

  • 7. guitaristbl  |  March 31, 2015 at 11:27 am

    I am Mary Bonato is here.As for Douglas Hallward-Driemeier it worries me that based on his bio he seems to be kind of out of his field with a civil rights case. He seems to be more specialized to things like bankruptcies, patent and intel. Property cases and FCA cases. I guess they have a good reason to choose him but he does not seem that experienced in arguing on LGBT rights cases. I will probably be proven wrong but I had to point out.

    I will miss Olson though on this case, I was kind of hoping for another great Olson- Boyes performance.

  • 8. JayJonson  |  March 31, 2015 at 11:34 am

    I was also hoping that Olson-Boies would have a role at SCOTUS this time.

    I was also struck by the range of Hallward-Driemeier's specialties, which do not seem to include much work in civil rights. I do note, however, that on the Ropes & Gray website, they say that he has devoted a lot of pro bono work to gay and lesbian organizations, so presumably he has experience in arguing gay rights cases. He specializes in appellate work so that may be his greatest strength for the SCOTUS arguments about marriage recognition.

    I am delighted that Mary Bonauto will be arguing for marriage equality. She has been a very effective litigator for us. Although this will be her first SCOTUS appearance, she has argued numerous times before state supreme courts and won the first major victories in dismantling DOMA. She will do a fine job.

  • 9. David_Midvale_UT  |  March 31, 2015 at 12:53 pm

    Olson and Boies had their 15 minutes. Others deserve a chance to shine on the national stage.

  • 10. cpnlsn88  |  March 31, 2015 at 1:11 pm

    I am truly delighted by this news. I guess a decision was made that SCOTUS is there and what Olson and Boies had to bring, they already brought – have already argued before SCOTUS in Prop 8. Divers litigators have pleaded before Circuits of Appeal and have won. So it is great now to bring it back to Mary Bonauto where it truly did start for us. This is only right and proper and a good development.

  • 11. ianbirmingham  |  March 31, 2015 at 1:49 pm

    With a landmark vote Tuesday by the assembly of Tokyo’s Shibuya ward, the district famous as a mecca for trendy youngsters became the first locale in Japan to recognize same sex partnerships as the “equivalent of a marriage,” guaranteeing the identical rights of married couples, including hospital visitations and apartment rentals.

    http://www.theglobeandmail.com/news/world/shibuya

  • 12. SethInMaryland  |  March 31, 2015 at 1:57 pm

    nice to see, Japan made a small forward, still a long to go but one step is better then none. Japan has a strong opposition party in favor of marriage equality( the most conversative of the three major partys) they just need to win the election which as yet to happen

  • 13. DeadHead  |  March 31, 2015 at 3:43 pm

    Breaking News: Arkansas just passed its own Indiana-style 'Religious Freedom Restoration Act'. The Arkansas and Indiana bills are virtually identical in terms of language and intent. A Hutchinson spokesman told CNN that the governor will release a public statement announcing what he's decided to do Wednesday morning — likely around 11:30 a.m. Eastern time. He said there will be no public signing ceremony. http://www.cnn.com/2015/03/31/politics/arkansas-r

  • 14. jpmassar  |  March 31, 2015 at 3:44 pm

    Arkansas legislature just passed right to discriminate legislation.

  • 15. jpmassar  |  March 31, 2015 at 3:47 pm

    OT: Australia

    Corporate giants including Qantas, PricewaterhouseCoopers, SBS and Football Federation Australia have signed an open letter to the federal government in support of gay marriage.

    In the letter, they argue that same-sex marriage is not just 'the only truly fair option' but 'a sound economic option' – as it would make LGBTI employees happy and therefore more productive and give Australia a competitive edge in attracting international talent.
    http://www.gaystarnews.com/article/australia-corp

  • 16. JayJonson  |  March 31, 2015 at 4:03 pm

    Wonder who he is going to surround himself with in the private signing ceremony? Tony Perkins? Brian Brown? Maggie Gallagher? Bryan Fischer?

  • 17. RnL2008  |  March 31, 2015 at 4:12 pm

    May Arkansas face the same boycott and just in case some folks continue to make ASININE comments as these two States have the same RFRA as both the Federal Government and other states have…..they DON'T and here is the difference:
    Indiana’s is the only law that explicitly applies to disputes between private citizens.* http://thinkprogress.org/lgbt/2015/03/30/3640374/

    The Federal RFRA and 19 other States state this basically:
    Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government.

  • 18. Zack12  |  March 31, 2015 at 5:07 pm

    Jerry Cox, who is the president of the Arkansas Family Council, the Focus On The Family hate group for that state and the Duggars will no doubt be there.

  • 19. VIRick  |  March 31, 2015 at 5:08 pm

    And the CEO of Walmart just told Governor Hutchinson to veto it. http://www.lgbtqnation.com/2015/03/walmart-urges-

    The mayor of Little Rock, Mark Stodola, has been calling for the governor to veto the bill, and today, hand-carried a signed letter to the governor's office listing his reasons why it should be vetoed..http://joemygod.blogspot.com/

  • 20. guitaristbl  |  March 31, 2015 at 5:32 pm

    They learned nothing from the backlash in Indiana did they ? Oh well…
    Each action has consequences.

    But hey the have Ted Cruz supporting them as he supports Pence strongly as well…That's something 😛

  • 21. StraightDave  |  March 31, 2015 at 5:38 pm

    Expect the blowback to be virtually identical, as well.

  • 22. Steve84  |  March 31, 2015 at 5:54 pm

    Arkansas doesn't have a reputation to uphold though. It's already well known as a severely anti-gay shit hole. And generally it's just a lot more backwards and primitive than Indiana

  • 23. VIRick  |  March 31, 2015 at 5:59 pm

    D.C. Mayor Muriel Bowser on Tuesday (31 March 2015) issued an executive order banning the use of city funds for travel to Indiana in response to the state’s approval of the Religious Freedom Restoration Act, which critics say will allow businesses to discriminate against LGBT people. http://www.washingtonblade.com/2015/03/31/bowser-

    Vermont Gov. Peter Shumlin is banning all non-essential state-funded trips to Indiana because of that state’s new religious-freedom law that critics say opens the door to discrimination against gays and lesbians <a href="http://.http://www.lgbtqnation.com/2015/03/vermont-governor-bans-state-funded-travel-to-indiana/” target=”_blank”>.http://www.lgbtqnation.com/2015/03/vermont-governor-bans-state-funded-travel-to-indiana/

  • 24. weaverbear  |  March 31, 2015 at 6:01 pm

    So, can anyone here explain to me what the true purpose of a RFRA act is, if not to allow discrimination that's based on an individual's religious belief?

    I was dumbfounded watching Mike Pence's interview with George Stephanopolous this week where he was asked repeatedly if the new law would allow someone like a florist or baker to refuse service to a gay couple and Pence refused to answer that yes or no question. The man did not have the strength of his own conviction to answer the question, even if it would have been to answer with an "I don't know."

    Listening to his this morning at his news conference where he tried to back peddle and say how offended he was that people would think Hoosiers were bigoted and inhospitable & that if he saw a restaurant refuse a gay couple service he would walk out, seemed so bloody disingenuous it was angering to watch. If discrimination is wrong, don't codify it with this statute.

    Meanwhile, NY, Washington state and Maryland have banned all state funded business travel to Indiana until this law is off the books, and amen, businesses around the country are responding to this statute by pulling their business from the state, by halting expansions and cancelling conferences and travel. This was some of what the world did to encourage South Africa to end apartheid.

  • 25. ianbirmingham  |  March 31, 2015 at 6:01 pm

    The [federal] circuits are split as to whether [federal] RFRA can be claimed as a defense in citizen suits—suits solely between private citizens in which the government is not a party. This split is based on an ambiguity in the text: whether the phrase “and obtain appropriate relief against a government” is meant to limit the set of cases in which a “claim or defense” may be raised in a judicial proceeding, or whether the phrase simply signifies an additional right upon which a litigant may rely. …

    [Obama's] DOJ [Department of Justice] has taken the position that RFRA can be raised as a defense in lawsuits brought by private parties:

    In response, the United States has formally taken the position that religious organizations can assert RFRA as a defense in lawsuits brought by private parties: “[I]f plaintiff were sued by a plan participant or beneficiary in the future, plaintiff, in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates the Religious Freedom Restoration Act (‘RFRA’).” Reply in Support of Motion to Dismiss at 3-4, Wheaton Coll. v. Sebelius, No. 12-01169 (D.D.C. Aug. 20, 2012).

    http://joshblackman.com/blog/2015/03/26/comparing

    This provision has caused a split among the federal courts of appeals. The majority of circuits that have confronted this issue have held that the language allows a defendant to assert RFRA as a “defense” in a private cause of action not involving the government. Even though the suit is brought by a private party, the argument goes, the “religious exercise” is still being burdened through the enforcement of a federal law in “a judicial proceeding.” As Shruti Chaganti explained in a 2013 article in the Virginia Law Review, the Second, Eighth, Ninth, and D.C. Circuit Court of Appeals — which Chaganti dubbed the “defense circuits” — have allowed RFRA to be raised as a defense in a private suit, “finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.”

    In 1996 — three years after RFRA was enacted — the D.C. Circuit held that the Catholic University of America could raise RFRA as a defense against a sex-discrimination claim brought by a nun and the Equal Employment Opportunity Commission alike. In 1998, the Eighth Circuit Court of Appeals found that a church could assert RFRA as a defense against a trustee in bankruptcy proceedings. In a 2000 decision by the Ninth Circuit Court of Appeals, one church sued another church for unlawfully using materials copyrighted by its late pastor. The court allowed the infringing church to raise the defense, but found that the application of the copyright law did not impose a “substantial burden” on its exercise of religion. In a 2005 decision by the Second Circuit Court of Appeals, a priest was forced into retirement by the New York Methodist Church when he turned 70. The priest brought an age-discrimination claim, and the church countered that enforcing the law would burden its free exercise. The Second Circuit found that “RFRA’s language surely seems broad enough to encompass” the church’s raising RFRA as a defense against the age-discrimination claim. In short, Judge Ralph Winter wrote, RFRA “easily covers” the church’s claim that applying the anti-discrimination law would “substantially burden” its exercise of religion.

    These four cases, and many others, concerned similar facts — private parties had brought suits against corporations. (Yes, Catholic University and Catholic churches are corporations.) In each case, the corporate defendants were allowed to raise RFRA as a defense to assert that the enforcement of a federal law — Title VII’s prohibition against discrimination, bankruptcy law, and even copyright law — would burden their free exercise of religion. In some cases, the defenses were successful, and in others they were not. But this is the rule of law in the states under the jurisdiction of these four circuits — nearly half the states in the union. Until recently, this was not particularly controversial.

    http://www.nationalreview.com/article/416160/indi

  • 26. ianbirmingham  |  March 31, 2015 at 6:13 pm

    It's to make sure that infringements on this Constitutional right (religious freedom) are kept to a reasonable minimum. Where there's a way to do things that accomplishes the government's objective with less intrusion on religious freedom, the government has to use the less intrusive method and show in court when challenged that it reallly is the minimally intrusive method.

    Separately from RFRA, Pence is obviously an extreme bigot. In this situation, the bigotry comes not from enacting the RFRA (which is actually a good thing), but rather from also opposing the enactment of strong anti-discrimination laws in Indiana.

    If discrimination is wrong (which it totally is), don't oppose making sexual orientation and gender identity into protected classes under state law (and under federal law as well).

  • 27. RemC_Chicago  |  March 31, 2015 at 6:29 pm

    FYI, the mayor of Chicago sent letters to Indiana businesses inviting them to move to the more hospitable climate of Illinois.

  • 28. brandall  |  March 31, 2015 at 7:11 pm

    "can anyone here explain to me what the true purpose of a RFRA act "

    It has been hijacked. Introduced in 1993 by Congress, RFRA sailed through Congress with a unanimous vote in the House and short 3 votes of unanimous in the Senate. It was signed by President Clinton. Its' intent was to limit the intrusion of government laws and policies onto unique aspects of religious beliefs. Think of American Indians use of peyote in religious ceremonies which is often cited as a primary example for the need of this law to restore the Sherbert Test which SCOTUS killed off in 1990.

    This was enacted the same year as the MA Supreme Court ruling that brought us marriage equality in our first state. No one at the time could foresee the two issues eventually leading up to what is happening today in Indiana.

    In 1997, SCOTUS ruled the law could only be applied at the Federal level. Subsequently, states started to enact the same law to provide the same protections at the State level. Bambi was fine in the forest and everyone was happy until this last year.

    Just as the marriage bans were an overreaction that have now backfired, Indiana's combination of no anti-LGBTQ discrimination laws, the pending SCOTUS ruling making ME the law of the land, the timing of Indiana's passing this law and their idiot of a governor have created the perfect storm. I am so surprised and pleased by America's corporations pouncing on Pence and calling the timing of this law for what it is truly is…..a new way to misuse a well intentioned law to hurt my people.

  • 29. Zack12  |  March 31, 2015 at 7:14 pm

    Btw, Kentucky's argument to keep the ban against gay marriage has come out. http://www.mediaite.com/online/ky-gov-straight-pe
    The 1960's and the Loving case called, they want their bigotry back.

  • 30. Ryan K (a.k.a. KELL)  |  March 31, 2015 at 7:36 pm

    Back to Indiana…

    "If we have to make adjustments to this law to make it clear that this law as never intended to give businesses the right to turn away customers on the basis of sexual orientation, we will fix that," Pence told Fox News on Tuesday."

    So that's great. But what about other areas that someone could claim their religious freedoms should allow them to deny service? I'm glad that sexual orientation is used as an example, but it is just that, one example.

  • 31. Jaesun100  |  March 31, 2015 at 8:07 pm

    The intent of this law Is totally and ironically backfiring on the "Governor" and far right GOP. . It would not surprise me if GLBT get some kind of protections from the state out of this, if not that they better repeal it (and quick)…. I am certain Pence is having "buyer's remorse". The Governor does not have a lot of options at this point….We witnessed threats of backlash with AZ & Jan Brewer, but this takes the cake people are actually following through . I, myself am shocked and pleasantly surprised at the same time. Mainstream America isn't having this law and they have voiced their opposition loud and clear.

  • 32. sfbob  |  March 31, 2015 at 10:38 pm

    Um…brandall, the federal RFRA passed in 1993; Goodrich vs Department of Health was decided ten years later. Other than that…good post.

  • 33. sfbob  |  March 31, 2015 at 10:49 pm

    "Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law."

    Yes, a very similar argument was made by the state of Virginia in Loving vs Virginia. We know how well that worked when the case reached SCOTUS.

    Also I suppose the state's attorney's have neglected to read Christian Legal Society vs Martinez (2010) in which Justice Ginsburg wrote that the Court "declined to distinguish between status and conduct" when it came to matters of sexual orientation. She also, in that decision cited Bray vs Alexandria Women's Health Clinic which is well known for this "A tax on wearing yarmulkes is a tax on Jews".

    Two points:

    1. The first failure is to distinguish the "behavior" or marrying someone of one's own gender and the status of being inclined to be emotionally bonded to a person of one's own gender.

    2. A law prohibiting same-sex marriage does NOT treat homosexuals and heterosexuals the same since heterosexuals presumably have no interest in marrying someone of their own gender whereas we do. So it affects us in a way that it doesn't affect heterosexuals; we can be viewed as the ones subject to a "tax on yarmulkes."

  • 34. F_Young  |  March 31, 2015 at 10:53 pm

    Here Is "Stone Cold" Steve Austin's Wonderful Defense of Gay Marriage
    http://www.motherjones.com/mixed-media/2014/04/th

  • 35. F_Young  |  March 31, 2015 at 11:04 pm

    Arkansas Could Soon Become The Most Anti-LGBT State In The Nation

    If Hutchinson signs this RFRA into law, it will make Arkansas the state that most enables discrimination against LGBT people. There are no state-wide protections for LGBT people in employment, housing, or public accommodations, and just last month, the state approved a different bill that prohibits cities and counties from establishing LGBT protections, seemingly invalidating those protections that some municipalities already have.

    http://thinkprogress.org/lgbt/2015/03/31/3641057/

  • 36. F_Young  |  March 31, 2015 at 11:12 pm

    Gay Marriage State by State: A Trickle Became a Torrent [maps]
    http://www.nytimes.com/interactive/2015/03/04/us/

  • 37. andrewofca  |  March 31, 2015 at 11:32 pm

    1993 was an important year in SSM history though… I think Hawaii ruled in our favor for the first time on equal protection grounds.

  • 38. 1grod  |  April 1, 2015 at 5:22 am

    Ryan – to be fair in his press conference yesterday the governor did say the amendment would mean the business would also not be able to deny services. When taking questions, he was ask by the media whether they would still be able to deny accommodation and employment. As in other interviews when asked a direct question he does not like, he deflects, muddle, obfuscates and repeats core message – in other words fibs and lies.. Pence says he abhors discrimination of any kind, and is sure all legislators, indeed citizens of the state feel likewise. Body language lets a lot.

  • 39. JayJonson  |  April 1, 2015 at 6:06 am

    Pence is simply a liar. The entire purpose of the Indiana RFRA is to allow discrimination against gay people. It was a "consolation prize" for anti-gay organizations who have failed to prevent same-sex marriage. Pence himself has long been a proponent of discrimination. Not only has he refused to support any nondiscrimination ordinances, but he opposed Don't Ask, Don't Tell because he thinks that homosexuals should not be permitted to serve in the military under any circumstances.

    Indiana's RFRA has nothing to do with religious freedom. Nothing. The first amendment to the US Constitution, and no doubt also expressly inscribed in the Indiana state constitution, guarantees religious freedom.

    Moreover, the bill was also unnecessary even from the pov of its supporters, for in Indiana it is perfectly legal (at least in most parts of the state) for the proverbial florist, photographer, or restaurant to refuse to serve gay people.

    Luckily, the backlash against this vicious and petty law has called attention to the absence of protections for gay people in Indiana and may help remedy some of this lack.

  • 40. JayJonson  |  April 1, 2015 at 6:15 am

    His remorse is that he thought this act of "courage" would thrust him into the presidential sweepstakes, as a Vice Presidential prospect if not a presidential candidate. Instead, it has ruined his hopes, for now the wingnuts are turning against him for "caving" and the sensible folk know that he has badly damaged his state all in an attempt to marginalize and hurt others.

  • 41. JayJonson  |  April 1, 2015 at 6:17 am

    Pence's entire record in government has been driven by a desire to deny any protections for gay people. He simply lies when he says he abhors discrimination. His previous record has come to the surface now, another reason he has absolutely no chance now for higher political office.

  • 42. wes228  |  April 1, 2015 at 6:48 am

    I totally disagree. "Religious Freedom Restoration" laws place far too great a burden on the government to justify even routine laws. We are all free to believe as we please, but we also have to live together in one, civil society. Religiously neutral laws of general applicability…that is, laws whose basis is outside the realm of religion and are applied to people of all religions equally, should not, generally speaking, be construed as illegally infringing on one's right to religious freedom. To say otherwise is to allow religious people to pick and choose which laws they personally feel like following, and then put the burden of proof on the government to show why the law doesn't infringe on their religion.

    The RFRA also privileges religious objections to laws, whereas those who do not have a religion or have deep philosophical objections to laws are not protected.

    Lastly, the RFRA acts as a quasi-constitutional amendment, barring future Congresses (or the state legislatures) from passing legislation. It is normally the case that if there is a conflict between laws X and Y, the newest law takes precedence. Not so with RFRAs.

  • 43. RemC_Chicago  |  April 1, 2015 at 6:54 am

    I agree. A look at the Advance America website—whose Executive Director Eric Miller stood behind Pants at the "private" signing—provides a description for the purpose of the bill. It's nearly all about stopping "homosexual marriage." Last year, he was the keynote speaker at a function thrown by the Indiana Family Council—-which I assume must be as vitriolic as the one in Illinois. The advertisement/poster for the event applauded his support for drawing the line on man-woman traditional marriage. On top of everything else, he's a liar who doesn't have the guts to own up to his own convictions.

  • 44. brandall  |  April 1, 2015 at 7:01 am

    Thank you and yes, 1993 was when the HI SC first ruled in our favor for a right to marry.

  • 45. JayJonson  |  April 1, 2015 at 7:07 am

    The absurd way in which he attempted to defend the indefensible, especially in the interview with George Stepanopolous, has made him a laughing stock. Last night, he was the target of spoofs by both Seth Meyers and David Letterman. Once a politician becomes a byword for stupidity, it is difficult to take them seriously.

  • 46. JayJonson  |  April 1, 2015 at 7:15 am

    Ari Ezra Wildman has an interesting analysis of Indiana's RFRA at Towleroad. Here's an excerpt.

    "Indiana's RFRA differs from the text of the federal RFRA in three important ways:

    First, Section 7.3 explicitly protects the exercise of religion, and religion-based discrimination, by companies and corporations, not just individuals. Nor does Section 7.3 explicitly limit the right to closely-held corporations, or those owned by a single individual or a family.

    This seems to create a giant chasm between Indiana's and the federal RFRA. But remember that in Hobby Lobby, a majority of the Supreme Court extended the federal RFRA to closely-held corporations, so a provision that permits corporations to use religion as a pretext to discriminate is not so new. Also, Section 7.3 does limit the reach of the law to corporations where "individuals" with a "system of religious beliefs" have "control or substantial ownership" of the company. Corporations that fit that description usually turn out to be closely-held corporations.

    But that need not be the case. Indiana's statute could also apply to a public company where the majority shareholder has a system of religious beliefs that compel him to take the public company in a particular direction. That is not in the federal RFRA. Nor was it included in Hobby Lobby. Still, this isn't as big a difference as it sounds: there just aren't many (if any) public corporations run by a majority shareholder who is also a religious zealot, but the law could have the unintended consequence of allowing such shareholders to decide–against all good business sense–to discriminate against gays.

    Second, Section 9 of the Indiana RFRA protects persons "whose exercise of religion has been substantially burdened, or is likely to be substantially burdened" by government action. The 'is likely to be' language does not appear in the federal RFRA; under that law, your religious beliefs have to actually be burdened to give you standing to bring the lawsuit. The effect of the added language in Indiana's RFRA is to open the door to litigating the right to discriminate earlier.

    It's clear to me from this provision that a litigator, or former litigator, may have been involved in writing this statute. The 'is likely to' language tracks the standard we use for a "preliminary injunction," or an order by a court to stop something, in this case, a law that burdens free exercise of religion rights, from taking effect.

    We grant preliminary injunctions when, among other things, a party can show a "likelihood of success on the merits." So, it seems that the Indiana RFRA is explicitly codifying the preliminary injunction language into the statute. This has the effect of giving potential discriminators more weapons. That's definitely bad, but it's a little arcane.

    The third difference is the most important. Unlike the language of the federal RFRA, Indiana's law explicitly provides for a defense in a private discrimination suit. The federal RFRA was passed as a weapon for individuals to protect themselves against federal laws that impinge their right to exercise their religion freely. The Indiana law doesn't just offer a weapon against state laws; it also is a weapon to protect Mary Sue Cakebaker in a lawsuit brought by Abbi and Ilana when Mary Sue refuses to serve them before they are lesbians.

    This is why Indiana's law is a license to discriminate. It is a shield for bigots, not a shield against government encroachment."

  • 47. brandall  |  April 1, 2015 at 7:30 am

    The BEST interview so far. CT's Governor Daniel Malloy called Pence a "bigot" during the interview. He says Gov. Mike Pence isn't a "stupid man, but has done stupid things." He correctly defends several technical/legal questions about why Indiana's law is different than CT's. Twice he states the intention of the law comes into question when you look at who was at the Indiana signing ceremony. Ten thumbs up for Malloy for providing facts.
    http://www.msnbc.com/morning-joe/watch/malloy–in

  • 48. brandall  |  April 1, 2015 at 7:47 am

    Jay, have you seen this legal analysis sent on 2/27/15 to the state legislature on why the wording of Indiana's RFRA was going to cause problems:
    http://web.law.columbia.edu/sites/default/files/m

  • 49. brandall  |  April 1, 2015 at 7:53 am

    BREAKING: Indiana's fix to its RFRA may be more than a preamble to the law:

    "The clarification would say that the new "religious freedom" law does not authorize a provider – including businesses or individuals — to refuse to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity.

    The proposed language exempts churches or other nonprofit religious organizations — including affiliated schools – from the definition of "provider."

    With the heat they are taking, they should wipe the law off the books and slowly start over.

    http://www.indystar.com/story/news/politics/2015/

  • 50. davepCA  |  April 1, 2015 at 8:39 am

    Indeed. What a train wreck!

  • 51. brandall  |  April 1, 2015 at 9:01 am

    BREAKING: AR Gov will not sign RFRA in its' current form. See today's new EoT article for details.

  • 52. JayJonson  |  April 1, 2015 at 9:05 am

    Thank you brandall for linking to this important letter (which I had not previously seen). It brilliantly explains how the Indiana RFRA is different from the federal one and how it overlooks the important principle that in protecting one person's constitutional rights, a law cannot shift burdens to a third party and thereby violate the third party's rights. I hope that ianbirmingham reads this analysis by distinguished law professors and abandons his attempt to persuade others that the Indiana law is not dangerous or meant to discriminate.

    It would have saved the state of Indiana a lot of grief had its legislators paid attention to the legal analysis offered by the professors. On the other hand, I think the outpouring of outrage over the law by businesses and champions of equal rights has been both surprising and deeply gratifying. The attempt to pass this license to discriminate may in the long run, thanks to the outrage it provoked, increase the protections afforded glbt people in Indiana.

    The small-minded animus of our opponents sometimes helps. But it helps only when it is exposed for what it is.

  • 53. guitaristbl  |  April 1, 2015 at 9:09 am

    If that's the new version promoted it basically bans discrimination on the basis of sexual orientation and gender identity in public accomodation ?

  • 54. guitaristbl  |  April 1, 2015 at 9:10 am

    Meh…The legislature can override a veto by a simple majority anyway…

  • 55. brandall  |  April 1, 2015 at 9:14 am

    Sure, but he did not veto it. He is asking for it to be recalled. That is very different than a veto. It tones down the rhetoric for the moderates. Next step is up to the Legislature.

  • 56. JayJonson  |  April 1, 2015 at 10:08 am

    Jeremy Hooper has some interesting observations about the RFRAs:

    "For the past couple of years, every single anti-LGBT group on both the state and national level has been talking about so-called "religious freedom" bills and their supposedly needed passage. That's what this whole campaign about bakers and florists and T-shirt makers has been about.

    With the writing on the wall for marriage equality and its inevitable expansion, the opposition knew it needed a new cause. Passing "religious freedom" bills was the cause they chose, and the hope is that doing so will carve out protections that allow people who think like they do to abstain from servicing same-sex couples in just about any public arena where our marriages come into play. And frankly, the anti-LGBT movement wasn't really trying to hide any of this. At least I didn't think they were.

    Yet now, with these #RFRA laws in the news and under the microscope in a way that none of us could have anticipated, you'd think those of us who note the obvious about these bills/laws and their motivations were engaging in a form of blood libel. "Outrage!" they cry when we simply note that same-sex marriage was the main motivator. "How dare you?" they ask when we wonder why they think they should be able to discriminate against same-sex couples in public accommodation.

    "I abhor discrimination" demanded the governor of Indiana, who has never given us any reason to believe that he even disfavors, much less abhors, discrimination toward LGBT people. It's as if they think we all started paying attention three days ago.

    The fact is that some of us have been paying attention, and for years. We didn't need any sort of outside guidance to tell us what the Indiana or Arkansas "religious freedom" bills were about because we know what the whole national campaign is about. We knew what it was about back when former governor Jan Brewer rightly vetoed Arizona's version. We knew what it was about when Tony Perkins, one of the most anti-LGBT men in American politics, stood behind Mississippi's Republican governor when he signed his state's version. And yes, we knew what it was about when Gov. Mike Pence signed Indiana's particularly strident version before an audience of anti-LGBT activists. And we know not because we've been digging or poking around in any sort of determined way. No, no—we know because the anti-LGBT movement has been talking about little else in recent years!

    For them to now play the innocent victims of misinformation and misrepresentation is not only offensive (which it is) and duplicitous (which we're used to from them), but it's also just plain absurd. . . .

    What, are we supposed to think it's just coincidence that Tony Perkins, Peter Sprigg, Brian Brown, Ryan Anderson, and state leaders with various "family policy" councils are the ones on TV and in print defending these law? Are they really expecting us to believe that this is happening now, in states with newfound marriage equality, simply because these states were under some other unexplained and unknown faith crush that they don't feel they have to tell us about? Do they think we're just going accept their motivations in good faith when they have shown nothing but bad faith against us and our lives and our loves and our families and our rights? Are they wanting us to un-know everything that we do, in fact, know about these bills and what they've been saying about them in order to build a case?"

  • 57. ebohlman  |  April 1, 2015 at 11:28 am

    No, it just says that the RFRA won't override laws that might be passed in the future to do so; that it doesn't override current municipal or county ordinances that do so; and that it doesn't provide an out for an employee who violates his employer's anti-discrimination policy.

  • 58. guitaristbl  |  April 1, 2015 at 11:39 am

    So that means it protects the current status quo (minus the RFRA) ? Hey I'll take it, it's still progress.

  • 59. ianbirmingham  |  April 1, 2015 at 12:31 pm

    Firstly, strict scrutiny is exactly the burden the government should bear when it infringes on ANY Constitutional right. It can withstand strict scrutiny when it has a "compelling interest" (not all that hard a test to pass) and can show that its approach is no more intrusive than necessary to take care of the compelling interest. This approach does not allow people to "pick and choose which laws they personally feel like following" – what it does is force the government to minimize its infringements of Constitutional rights.

    Secondly, your claim that "those who do not have a religion or have deep philosophical objections to laws are not protected" is entirely false and it reveals a complete lack of understanding of this Constitutional right. Secular humanism and other non-theistic belief systems are considered to be religions for free exercise clause purposes. Quoting the United States Supreme Court in Torcaso v. Watkins, 367 US 488 (1961):

    We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.

    https://supreme.justia.com/cases/federal/us/367/4

    And quoting the United States Supreme Court in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993):

    "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981).

    https://www.law.cornell.edu/supct/html/91-948.ZO….

    Finally, legislatures cannot ever be bound by the acts of previous legislatures and are always free to pass any law they wish. If a law violates the Constitution then the judiciary will strike it down as unconstitutional. RFRA simply specifies that the standard of enforcement is strict scrutiny. Laws that are based upon a compelling interest and accomplish that interest in a minimally intrusive way will be valid, and there is nothing that prevents legislatures from passing such laws. Legislatures are not free to be sloppy; they must produce high-quality legislation in order to satisfy strict scrutiny, otherwise their work will be found defective and rejected by the courts.

  • 60. ianbirmingham  |  April 1, 2015 at 12:46 pm

    See also Kaufman v. R McCaughtry, 419 F.3d 678 (2005):

    …when a person sincerely holds beliefs dealing with issues of "ultimate concern" that for her occupy a "place parallel to that filled by . . . God in traditionally religious persons," those beliefs represent her religion. Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 688 n. 5 (7th Cir.1994) (internal citation and quotation omitted); see also Welsh v. United States, 398 U.S. 333, 340, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); United States v. Seeger, 380 U.S. 163, 184-88, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). We have already indicated that atheism may be considered, in this specialized sense, a religion. See Reed v. Great Lakes Cos., 330 F.3d 931, 934 (7th Cir.2003) ("If we think of religion as taking a position on divinity, then atheism is indeed a form of religion."). …

    The Supreme Court has recognized atheism as equivalent to a "religion" for purposes of the First Amendment on numerous occasions, most recently in McCreary County, Ky. v. American Civil Liberties Union of Ky., ___ U.S. ___, 125 S.Ct. 2722, ___ L.Ed.2d ___ (2005). The Establishment Clause itself says only that "Congress shall make no law respecting an establishment of religion," but the Court understands the reference to religion to include what it often calls "nonreligion." In McCreary County, it described the touchstone of Establishment Clause analysis as "the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion." Id. at *10 (internal quotations omitted). As the Court put it in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985):

    At one time it was thought that this right [referring to the right to choose one's own creed] merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. Id. at 52-53, 105 S.Ct. 2479. In keeping with this idea, the Court has adopted a broad definition of "religion" that includes non-theistic and atheistic beliefs, as well as theistic ones. Thus, in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, it said that a state cannot "pass laws or impose requirements which aid all religions as against non-believers, and neither can [it] aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." Id. at 495, 81 S.Ct. 1680.

    Indeed, Torcaso specifically included "Secular Humanism" as an example of a religion. Id. at 495 n. 11, 81 S.Ct. 1680.

    http://openjurist.org/419/f3d/678/kaufman-v-r-mcc

  • 61. F_Young  |  April 1, 2015 at 2:10 pm

    ianbirmingham: "Firstly, strict scrutiny is exactly the burden the government should bear when it infringes on ANY Constitutional right. It can withstand strict scrutiny when it has a "compelling interest" (not all that hard a test to pass) and can show that its approach is no more intrusive than necessary to take care of the compelling interest. This approach does not allow people to "pick and choose which laws they personally feel like following" – what it does is force the government to minimize its infringements of Constitutional rights."

    That is nice in theory, but it won't work in practice, which is what counts when real people's lives and livelihoods are at stake.

    In practice, there is no prospect whatsoever that SCOTUS or most of the circuit courts of appeal will apply strict scrutiny to discrimination based on sexual orientation or gender identity within the lifetimes of the majority of the SCOTUS justices.

    So far, SCOTUS has not even been willing to apply strict scrutiny to sex discrimination, which directly concerns the majority of American voters and is clearly not chosen or able to be readily changed. It's a motherhood and apple pie issue if ever there was one, and yet it is still subject only to heightened scrutiny.

    This is the same SCOTUS that has already decided, in Hobby Lobby, that a for-profit corporation has religious beliefs (!) that give it the right to burden the right of thousands of real, living, breathing female employees to control whether they will be mothers or not.

    It is even doubtful that SCOTUS would be willing to apply mere heightened scrutiny to discrimination based on sexual orientation and gender identity. The only way I could see it happening is if discrimination based on sexual orientation and gender identity are considered to be forms of sex discrimination. This is conceivable, but it still would invite only heightened scrutiny, not strict scrutiny.

    So, in practice, RFRA ends up giving religion (which is often chosen, and is always changeable) a privileged status compared to sexual orientation, especially, and most other personal characteristics apart from race. It tilts the playing field against LGBTs even more than it is already.

  • 62. wes228  |  April 1, 2015 at 2:35 pm

    I support the current Supreme Court case law on the extent of the Free Exercise Clause: laws that are *not* religiously neutral and generally applicable should have to undergo strict scrutiny, e.g. a law prohibiting the wearing of yarmulkes in public. However, religiously neutral laws of general applicability should be assumed constitutional and everyone should be expected to follow them.

    The Supreme Court certainly recognizes the right of people to be atheists under the *Constitution*. The text of these religious freedom acts does not state anything about philosophical beliefs, however. If I claim that a law substantially burdens my "philosophical beliefs" I presumably would not be covered (I invite you to provide an example of where someone won a claim under an RFRA based on a philosophical objection to a law).

    When there was conflict between the ACA's contraception mandate and the federal RFRA, the contraception mandate should have overridden the RFRA, not the other way around. But the RFRA is a very special law: the Congress of the 1990s bound all future Congresses to pass laws that conform to a level of scrutiny not required by the Constitution. The only way to unleash this burden is to explicitly state in the law that the RFRA is overridden.

  • 63. ianbirmingham  |  April 1, 2015 at 3:05 pm

    SCOTUS judges are "senior citizens", so "within the lifetimes of the majority of the SCOTUS justices" is a rather short timeframe.

    Sexual orientation is already subject to heightened scrutiny in the 9th Circuit, which already ruled that Windsor requires heightened scrutiny…

    The Supreme Court’s decision in U.S. v. Windsor “requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purpose and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny. Our earlier cases applying rational basis review to classifications based on sexual orientation cannot be reconciled with Windsor.”

    – Excerpt from a ruling January 21 by the Ninth U.S. Circuit Court of Appeals, based in San Francisco, declaring unconstitutional the exclusion of individuals from serving on a jury because of their sexual orientation.

    http://blog.constitutioncenter.org/2014/01/consti

    http://www.dailykos.com/story/2014/01/21/1271407/

    So according to the 9th Circuit, SCOTUS already has applied heightened scrutiny to sexual orientation. And the US Government's amicus brief in Obergefell points out that "The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny. " and explains in detail why, based on the SCOTUS four-factor test for when heightened scrutiny should apply.

    http://www.justice.gov/crt/about/app/briefs/oberg

    Finally, the level of scrutiny arises mostly between people (or groups thereof) and the government – not between conflicting individuals. So saying "My right has higher scrutiny than your right" (or vice versa) doesn't have much practical significance.

    All Constitutional rights are headed for strict scrutiny in the long run. If progressives were better than conservatives at tasks like getting like-minded people (Thurgood Marshalls) appointed to the Supreme Court, topics like sex discrimination, sexual orientation and gender identity would have easily reached strict scrutiny a long time ago.

  • 64. ianbirmingham  |  April 1, 2015 at 3:35 pm

    Go read the Hobby Lobby decision and you will see that the contraception mandate remained intact. The Government devised a workaround whereby the health care plans were partitioned off into two sections, one providing contraception and the other providing everything else. The very same health care coverage, including the very same contraception, remained in full force and at exactly the same cost. All that happened was that the portion involving contraception was routed in such a way that it didn't pass through the RFRA plaintiff's business operation. That's what's called a "win-win" solution.

    http://www.supremecourt.gov/opinions/13pdf/13-354

    Religiously neutral laws of general applicability are, like every other law, presumed constitutional. That presumption can be overcome by a court case proving the law unconstitutional – just as with every other law.

    "Philosophical beliefs" would have to pass the test outlined above (sincerely [held] beliefs dealing with issues of "ultimate concern" that… occupy a "place parallel to that filled by . . . God in traditionally religious persons,"). As noted above, secular humanism is an example of a "philosophical belief" that passes this test. But more significantly, there would have to be a law that infringes upon a non-theistic person's sincerely held beliefs AND that person would have to be interested in going to court to fight it. I'm not aware of any occurrence of that particular combination of events as yet. However, the law is very clear on this point: non-theistic beliefs are fully protected by religious freedom. RFRA is lying there waiting to be used by someone with a non-theistic "religion" who has a need to use it to restore religious freedom.

  • 65. wes228  |  April 1, 2015 at 6:27 pm

    I did not say the contraception mandate was struck down. There was, however, a conflict between the mandate and the RFRA. Congress passed a law saying almost all companies had to provide contraception coverage. But the RFRA had the effect of saying some companies did not have to provide that contraception coverage (the federal government could in its place).

    Really, the ACA should have overridden anything that would be in conflict with the RFRA. But what you had was the ghost of 1990s Congress passing a law that prohibited 2010's Congress from passing the legislation that they wanted: to require all companies to provide contraception coverage.

    Additionally, the RFRA places the burden of proof on the government to show that the law serves a compelling government interest and is as narrowly tailored as possible. WIthout the RFRA, a court confronted with a religiously neutral law of general applicability would place the burden of proof on the challenger to prove its unconstitutionality.

  • 66. ianbirmingham  |  April 1, 2015 at 6:57 pm

    The employee has the very same coverage at the very same price, and the company gets to steer clear of being compelled to violate its religious interests. That's a win-win outcome. What's not to like? Quite frankly, companies should not be in the position of providing health coverage in the first place. Government should provide everyone with basic health care ("single payer"), with non-basic health care services (or luxury delivery of basic services) available at additional cost.

    Government should bear the burden of proof, and RFRA makes it do that. Why would you think otherwise?

  • 67. wes228  |  April 2, 2015 at 6:36 am

    It's not a win-win outcome because taxpayers must now pay for that coverage. What you think should and should not be is immaterial: we vote in a Congress to pass laws. That Congress should not be bound by what a *past* electorate (an electorate that the current one may disagree with) says should be.

    The burden of proof should normally be on the challenger: if you are asserting that a law is unconstitutional, then it should be up to you to prove it. To start in reverse: assuming all laws are unconstitutional until proven otherwise, would bring government to a screeching halt.

  • 68. brchaz  |  April 3, 2015 at 5:29 am

    It is indeed a win-win outcome. The taxpayer doesn't have to pay. The insurance company simply surgically removes contraceptives from the employer's plan and creates a new mini-plan covering only contraceptives which the employee may also opt to participate in. For employees participating in both plans, the total cost to them is the same as the original (unsplit) plan. The insurance company then runs the mini-plan at no cost to the employer (only receiving premium payments from the employees covered by the mini-plan), and due to the cost savings now available to the insurance company, HHS has determined that even though the insurance company is theoretically paying for the mini-plan instead of the employer, these mini-plans actually impose no net cost on the insurance company. All of this is explained in detail on pages 15-16 of the PDF of the Hobby Lobby decision. Taxpayers are't financially involved at all.

    http://www.supremecourt.gov/opinions/13pdf/13-354

    Also, you misunderstand the burden of proof. It is still true that all laws are assumed constitutional until proven otherwise. "Proven otherwise" happens only when a court issues a final ruling that the law is unconstitutional. The law is still constitutional while the court case proceeds. Placing the burden of proof on the government during the trial is appropriate here; if the government cannot show that its plan is the least intrusive, then it doesn't deserve the privilege of infringing on a constitutional right. Once the government tells the court why it believes that its law is the least intrusive, the challenger can then point to a less intrusive alternative, and the government must either accept it or explain why it won't work.

  • 69. wes228  |  April 3, 2015 at 6:26 am

    Religiously neutral laws of general applicability do not infringe on a constitutional right. The RFRA acts like an "expansion pack" to the Constitution without actually being a part of the Constitution, binding future legislation to a standard that the Constitution does not actually require.

  • 70. brchaz  |  April 3, 2015 at 7:37 am

    Not true. In fact, here's a Supreme Court decision that absolutely bitch-slaps a facially neutral law of general applicability which massively infringes on religious freedom:

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?…

    CHURCH OF LUKUMI BABALU AYE v. CITY OF HIALEAH, 508 U.S. 520 (1993)

    The Constitution doesn't specify the standard of review for any constitutional right. Some standard of review has to be used. Either the courts or the legislature must fill in the missing information.

  • 71. StraightDave  |  April 3, 2015 at 9:14 am

    Now that's an interesting citation you provide, brchaz.
    Right at the beginning, we have:

    " JUSTICE KENNEDY delivered the opinion of the Court ….

    (a) Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 . "

    That would seem to gut the foundation of most of the nasty RFRA's, including the federal one.

    Edit: In other words "religious" people have to obey the law, too, even if they don't like it.

    Edit#2: Despite brchaz's claim, the same opinion states:

    "(b) The ordinances' texts and operation demonstrate that they are not neutral"

    That's why they got shot down. They were targeted directly at one religion's specific practices.

  • 72. brchaz  |  April 3, 2015 at 9:31 am

    The Lukimi Babalu case was decided June 11, 1993 – six months before the federal RFRA took effect in November 1993. This law was facialy neutral and of general applicability. Thus these ordinances were (supposedly) subject to the weaker Smith standard. Yet Kennedy saw through the City of Hialeah's attempt to create a law that was facially neutral, but was as a practical matter a vehicle for anti-religious animus. So Kennedy applied strict scrutiny anyway (the higher standard that RFRA now requires in all cases) and found the City's ordinances unconstitutional.

    This example shows that religiously neutral laws of general applicability can indeed infringe on a constitutional right – that's the opposite of what wes228 was claiming.

  • 73. wes228  |  April 3, 2015 at 10:57 am

    The Court explicitly found that the law was NOT religiously neutral because it was targeted at a specific church's religious practices, hence the use of strict scrutiny.

  • 74. StraightDave  |  April 3, 2015 at 1:47 pm

    As much as you and others apparently would like, Congress cannot tell SCOTUS how to interpret the Free Exercise Clause of the US Constitution. They would like to try to do that, and RFRA purports to do that, but sooner or later the right edition of SCOTUS will show up and hand them their ass.

    It might not be this current edition, and won't be in 2015, but it's out there just waiting to happen. Congress cannot overrule or undermine Smith or any other Constitution-based opinion. The legal authority runs in the opposite direction.

    101

  • 75. 1grod  |  April 3, 2015 at 3:51 pm

    off topic – Congressional Republican's amici curiae BRIEF to the USA Supremes on marriage equality: http://www.washingtonblade.com/content/files/2015

  • 76. ianbirmingham  |  April 4, 2015 at 10:46 am

    There are actually three (3) different concepts of neutrality that are discussed in the Lukumi Babalu Aye case: facial neutrality, formal neutrality, and substantive neutrality. Justice Souter's concurring opinion shreds the Smith rule (which Scalia came up with) and favors strict scrutiny (which was the rule used historically prior to the Smith case, and which was fully reinstated by RFRA).

    Souter writes:

    … our common notion of neutrality is broad enough to cover not merely what might be called formal neutrality, which, as a free exercise requirement, would [508 U.S. 520, 562] only bar laws with an object to discriminate against religion, but also what might be called substantive neutrality, which, in addition to demanding a secular object, would generally require government to accommodate religious differences by exempting religious practices from formally neutral laws. … the pre-Smith law comes closer to fulfilling the language of the Free Exercise Clause than the rule Smith announced. … The Clause draws no distinction between laws whose object is to prohibit religious exercise and laws with that effect, on its face seemingly applying to both. Nor did Smith consider the original meaning of the Free Exercise Clause… when the opportunity to reexamine Smith presents itself, we may consider recent scholarship raising serious questions about the Smith rule's consonance with the original understanding and purpose of the Free Exercise Clause. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, supra; Durham, Religious Liberty and the Call of Conscience, 42 DePaul L.Rev. 71, 79-85 (1992); see also Office of Legal Policy, U.S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 38-42 (1986) (predating Smith). There appears to be a strong argument [508 U.S. 520, 576] from the Clause's development in the First Congress, from its origins in the post-Revolution state constitutions and pre-Revolution colonial charters, and from the philosophy of rights to which the Framers adhered, that the Clause was originally understood to preserve a right to engage in activities necessary to fulfill one's duty to one's God, unless those activities threatened the rights of others or the serious needs of the State. If, as this scholarship suggests, the Free Exercise Clause's original "purpose [was] to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority," School Dist. of Abington v. Schempp, 374 U.S., at 223 , then there would be powerful reason to interpret the Clause to accord with its natural reading, as applying to all laws prohibiting religious exercise in fact, not just those aimed at its prohibition, and to hold the neutrality needed to implement such a purpose to be the substantive neutrality of our pre-Smith cases, not the formal neutrality sufficient for constitutionality under Smith. …

    While facial neutrality would permit discovery of a law's object or purpose only by analysis of the law's words, structure, and operation, formal neutrality would permit enquiry also into the intentions of those who enacted the law.

  • 77. scream4ever  |  April 4, 2015 at 12:29 pm

    Amazed at how few Senators signed on. I love how the article points out how our side had nearly 4x the members of Congress signed on despite Democrats having one of the lowest majorities in Congress in the last 100 years.

  • 78. Zack12  |  April 4, 2015 at 12:51 pm

    Indeed, and yet some people will claim there is no difference between the two parties.

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