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Texas Still Using DOMA to Attack Gay Couples


By Matt Baume

Texas has won the right to have gays and lesbians fired for taking medical leave. The state’s also working on a sneaky work-around to stop marriage equality, just in case the Supreme Court overturns the state’s ban. And Alabama officials says that maybe gays and lesbians don’t want to get married after all.

If you’re straight and you need time off to care for a sick spouse, federal law requires that you get Family and Medical Leave. If you’re gay, you could get denied that right, depending on what state you live in. A new rule was supposed to expand access to Leave for gay couples last week, but at the last minute Texas Attorney General Ken Paxton sued to stop it. Now a judge has put the rule-change on hold. That means that Texan LGBTs will have to choose between taking care of their family and keeping their job.

The basis for last week’s ruling was the Defense of Marriage Act. Wait, didn’t the Supreme Court overturn DOMA? Well, technically, no. The Supreme Court only ruled against the part of DOMA that blocks the federal government from recognizing marriage. There’s another part that allows one state to disregard licenses from another state. And Paxton thinks that should give him permission to withhold medical leave from gays and lesbians who married in other states.

Of course, there’s one other authority here that Texas might want to consider: The US Constitution. The Supreme Court will hopefully rule in June that the equal protection clause applies to LGBTs. But homophobic Texas lawmakers are preparing for that, too. They’re pushing a bill that would give the Secretary of State the authority to punish any clerk who issues a license to couples the state doesn’t like. That means Texas would be saying, in essence, “oh we’re letting clerks obey the Supreme Court’s ruling. We’re just punishing them for doing so.”

Meanwhile, the Alabama marriage mess is continuing. The latest update: state Attorney General Luther Strange has asked a court to reject a class-action suit filed on behalf of the state’s LGBT couples. He says that even though they can estimate how many gays and lesbians live in Alabama, there’s just no way to know how many of them want to be treated equally. The plaintiffs will respond to that on Wednesday of this week, as soon as they can find a legal way to say “pretty much all of them do.”


  • 1. Wolf of Raging Fires  |  March 30, 2015 at 10:08 am

    Texas and Alabama are making me squint. >.<

    They need to stop making me squint.

  • 2. VIRick  |  March 30, 2015 at 10:04 pm

    Plus, I hate it when Wolfie is made to squint.

  • 3. F_Young  |  March 30, 2015 at 10:32 am

    Connecticut To Become First State To Boycott Indiana Over LGBT Discrimination Law

    Two cities, San Francisco and Seattle, have imposed similar bans in response to the law. Businesses have also retaliated. Angie's List is pulling a campus expansion project in Indianapolis, and the CEO of Salesforce, a $4 billion software corporation, announced plans to "dramatically reduce our investment" in the state because of the law.

  • 4. davepCA  |  March 30, 2015 at 12:22 pm

    Excellent. Let's hope this trend continues to pick up steam.

  • 5. RnL2008  |  March 30, 2015 at 2:30 pm

    It's funny how Fox and other social media have been portraying the RFRA in Indiana as the same as the other 19 States have and the Federal RFRA……..HOWEVER there is a really specific area of Indiana's law that differs from the others:
    There are several important differences in the Indiana bill but the most striking is Section 9. Under that section, a “person” (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose “exercise of religion has been substantially burdened, or is likely to be substantially burdened” can use the law as “a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding.”

    Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens.*

  • 6. robbyinflorida  |  March 30, 2015 at 1:26 pm

    History books will be long and thick, but not in the South.

  • 7. ianbirmingham  |  March 30, 2015 at 1:41 pm

    Indianapolis Mayor Greg Ballard is calling on the Indiana General Assembly to add sexual orientation as a protected class. Ballard said Monday he is issuing an executive order that anyone who receives money from the city must abide by its human rights ordinance.

  • 8. ianbirmingham  |  March 30, 2015 at 1:47 pm

    Purdue will enforce its anti discrimination policy

    Purdue University President Mitch Daniels … released a statement Monday afternoon ensuring Purdue will continue to make "all members of the University community feel welcome and supported" by enforcing its nondiscrimination policy. … Brian Zink, a Purdue spokesperson, … pointed … to the university's nondiscrimination policy, which prohibits discrimination against anyone on the basis of "race, religion, color, sex, age, national origin or ancestry, genetic information, marital status, parental status, sexual orientation, gender identity and expression, disability, or status as a veteran."

  • 9. JayJonson  |  March 30, 2015 at 2:32 pm

    It is very easy for Daniels to say this, but inasmuch as Purdue University is a government entity, it is not all clear that it CAN enforce its nondiscrimination policy if a student organization says, for example, that the university's policy burdens their religious liberty by making them admit homosexuals or allow them to hold leadership positions.

    The RFRA is not a suggestion that a university can just decide to opt out of or not. It is a law that is binding on all government agencies, and I am pretty sure that includes public universities.

  • 10. scream4ever  |  March 30, 2015 at 2:43 pm

    Technically its not in effect until July.

  • 11. JayJonson  |  March 30, 2015 at 2:46 pm

    Well, goodie, Purdue can enforce its nondiscrimination policy until July.

  • 12. scream4ever  |  March 30, 2015 at 2:52 pm

    There will likely be multiple lawsuits filed if this law is not repealed or revised and an injunction will be granted to prevent it from ever going into effect.

  • 13. Dann3377  |  March 30, 2015 at 3:12 pm

    Let's hope.

  • 14. JayJonson  |  March 30, 2015 at 3:23 pm

    It is unlikely that an injunction will be granted to prevent it from going into effect. Courts generally do not like to give advisory opinions. Someone with standing who has suffered as a result of the law will need to file suit after they incur discrimination.

    The genius of the law is that it prevents government agencies from penalizing people who exercise their religion. Hence, businesses or individuals can discriminate against gay people and there is no remedy for the gay person or couple, but if an agency of the government (such as a city or university with nondiscrimination policies) attempts to enforce its nondiscrimination laws, the RFRA not only provides the discriminators a defense but also will allow the state to intervene on their behalf and to recoup court costs and attorneys fees.

  • 15. VIRick  |  March 30, 2015 at 2:46 pm

    Colleges and universities located in Indiana are absolutely shitting themselves over this new law, as the timing on its passage could not have come at a worse time of the year,– right when prospective new students are applying for college admissions to be enrolled for the upcoming fall term.

    So, Purdue has a well-established anti-discrimination policy. I suspect that all of them do, given that that would be a requirement for receiving federal funding, as well as for enticing a diverse "best of the best' to even apply for enrollment in the first instance.

    However, Purdue's anti-discrimination policy (and all of the others) would end at the campus boundaries. They would not have control over landlords discriminating in off-campus housing nor over local businesses discriminating against providing services to various and sundry students for whatever reason.

    Butler University has already expressed deep concern over this matter.

  • 16. JayJonson  |  March 30, 2015 at 2:58 pm

    Indiana public universities' nondiscrimination law would not end at the campus boundaries, they would be unenforceable on campus, at least for people who claim that the policy burdens their sincerely held religious practice. RFRA covers all government agencies, and that includes public universities.

    IIRC, Butler University is a private university, so it would probably be exempt (at least on campus).

    I do not think there is any requirement that universities that receive federal funding have non-discrimination policies that cover sexual orientation and gender identity. Baylor and BYU receive a lot of federal funding. Probably students who attend Liberty University and Bob Jones University are eligible for Pell Grants even if those universities may not receive direct federal funding.

  • 17. ebohlman  |  March 30, 2015 at 9:07 pm

    As I understand it, most top-tier academic journals won't run postings for faculty jobs unless the employing university has anti-discrimination policies that cover, among other things, sexual orientation and gender identity. Kinda makes it hard to recruit top talent if you can't enforce those policies.

  • 18. VIRick  |  March 30, 2015 at 10:08 pm

    Yes, among other things, Indiana just flushed its academic standing for all the colleges and universities within its purview right down the toilet.

  • 19. Zack12  |  March 31, 2015 at 4:24 am

    Sad to say, I bet they don't care since they hate education almost as much as LGBT citizens.

  • 20. VIRick  |  March 31, 2015 at 12:55 pm

    Retrospective can be strange. Back when I was applying for grad school, I received two monetary scholarships, one from Indiana State and another from Arizona State. I chose Arizona State.

    Up to this point in time, the singular "bonus" which resulted from my selection of Arizona State came from the fact that I apparently dated Brandall's husband-to-be there before he ever met Brandall (or so we surmise).

    Suddenly, I've become very aware of a second major "bonus," despite the fact that the state of Arizona has been gutting its funding for higher education. Unlike the bigotted Pence, at least Jan Brewer dodged the bullet and wisely vetoed Arizona's proposed "license to discriminate" legislation last year.

    So, yes, they do hate education almost as much, and in Arizona, that's their latest tactic, given that they were unsuccessful on the "license to discriminate" thing.

  • 21. JayJonson  |  March 31, 2015 at 6:14 am

    Yes, ebohlman, this is true, and academia generally (with the large exception of some Southern public and many religious institutions) have been in the forefront of the struggle for equality. But the problem is not that mainstream colleges want to discriminate, but that legislatures don't want them to prohibit discrimination (as now in Indiana, but before that in Alabama and Texas and other states, including Virginia, goaded on by Ken Kuccinelli, who attempted to force public universities there to withdraw their nondiscrimination policies. He failed at that, but contended that they were unconstitutional and would not be enforced by the state).

    The universities have good reason to be concerned about Indiana's RFRA because it renders their policies unenforceable at least against groups and individuals that claim their religious belief is burdened by such policies.

    The Supreme Court in Martinez stood up for California public universities when they enforced their anti-discrimination policies against a Christian law student group. I suspect that in addition to wanting to reverse decisions like the New Mexico Supreme Court in the photography case, the promoters of the Indiana (and before that, the Arizona) RFRA want also to gut Martinez.

  • 22. brchaz  |  April 3, 2015 at 6:17 am

    Not true. The policy has to "substantially burden" – and that is a significant hurdle. Then, even if that is satisfied, the policy STILL prevails if it is backed by a "compelling interest" and it is the least intrusive way to satisfy that compelling interest. This isn't a law that just allows anyone to knock policies over with a feather – the university's interests are also a big factor.

  • 23. DeadHead  |  March 30, 2015 at 1:48 pm

    Here in Georgia today’s scheduled hearing for the SB129 bill was postponed. The meeting was intended to get the bill back on the table for a Tuesday vote. No word on if it is going to be rescheduled. There are only a few days left in this legislative session and everyone is watching closely to see what happens.

  • 24. ianbirmingham  |  March 30, 2015 at 2:07 pm

    When Deciding Gay Marriage, SCOTUS Should Listen to John Roberts’ Confirmation Hearing

    …when a person brings a lawsuit asserting that a state law violates her fundamental rights, a key issue for the court is how the right is defined—is it a right defined so narrowly by the facts of the case that it can only be considered a new right (not one “deeply rooted” in history or tradition), or does it fall within the scope of a more longstanding and recognized right? …

    When Roberts observed that the Supreme Court has precedents governing “how you should phrase the level of generality,” Biden said there were competing precedents and asked Roberts which precedent he agreed with. Roberts replied:

    Well, you do not look at the level of generality that is the issue that’s being challenged. So, for example, in Loving v. Virginia, if the challenge is, it seems to me—and this is what the court’s precedents say. If the challenge is to miscegenation statutes, that’s not the level of generality because you’re going to answer it’s completely circular.

    Sen. Biden: But that is specific, judge. The generality was the right to marry. That is the generality.

    Judge Roberts: Well, that’s what I’m saying. The dispute is do you look at it at that level of specificity or broader. And I’m saying you do not look at the narrowest level of generality, which is the statute that’s being challenged, because obviously that’s completely circular. You are saying there is obviously that statute that’s part of the history. So you look at it at a broader level of generality.

    It is significant that Roberts volunteered Loving as exemplifying not only the nature of the issue confronting a court dealing with an asserted fundamental right, but the correct methodology the court should use in identifying the right. Roberts’ analysis tracked an important concurring opinion in Michael H., authored by Justice Sandra Day O’Connor and joined by Justice Anthony Kennedy, which argued that Scalia’s “level of generality” argument could not be squared with Loving. As Roberts explained, it would have been completely circular for the court in Loving, confronted with laws prohibiting interracial couples from marrying, to look only at the “history of miscegenation statutes.” After all, the very existence of those laws suggests that there was no “deeply rooted” tradition of “interracial marriage.” The correct inquiry, as Roberts further explained (and as is evident from the court’s decision), was to focus on the more general “right to marry.” … And if Roberts is true to his confirmation hearing testimony, he should find in Obergefell that state laws prohibiting same-sex couples from marrying violate their fundamental right to marry.

  • 25. JayJonson  |  March 30, 2015 at 2:13 pm

    Yes, that is what Roberts SHOULD do. But it is very unlikely that he will do it.

  • 26. scream4ever  |  March 30, 2015 at 2:22 pm

    Don't be so sure. He most likely voted to deny cert to the cases ruled in our favor and also to deny extending the stays.

  • 27. ianbirmingham  |  March 30, 2015 at 6:34 pm

    As I've said before, the odds are at least 50-50 (I think they are better than that) that Roberts will uphold the right to marry. Little known fact: Roberts actually helped another lawyer (a colleague) prepare for oral argument in a same-sex marriage case way back when he (Roberts) was still a regular lawyer in private practice. Now lawyers are trained to be able to take either side of any issue depending on which side the client is paying the lawyer to represent, as well as to help colleagues with their cases just as a professional courtesy, so by itself this may not mean very much. But combined with his confirmation testimony, it does tend to confirm which way the wind is blowing. It's actually quite possible that Roberts will write the majority opinion upholding marriage equality.

  • 28. Tony MinasTirith  |  March 31, 2015 at 1:49 am

    I concur

  • 29. wes228  |  March 31, 2015 at 6:07 am

    Everyone brought this up in the run-up to the Windsor vote, and he still voted against us. He said there was no standing to bring the case to the Supreme Court, and he could have stopped there, but he didn't. He proceeded to explain how the Defense of Marriage Act should be considered perfectly constitutional.

    Don't hold your breath waiting for a positive vote from him.

  • 30. JayJonson  |  March 31, 2015 at 6:21 am

    I don't agree that he will vote in favor of marriage equality, but if Roberts writes the majority opinion upholding marriage equality, that will almost certainly be a disaster for us. He will make it a very narrow and begrudging ruling.

    Should that happen, we can only hope that there will be a strong five vote concurrence authored by Kennedy or Ginsburg.

  • 31. wes228  |  March 31, 2015 at 7:40 am

    Correct me if I am wrong, but I don't believe there has ever been a concurring opinion joined by a majority of the court.

    When at least 5 justices sign on to an opinion, the words contained in that opinion no longer become the speech of just a Supreme Court Justice, they become the words of the Supreme Court personified.

    If there is a sharp split in the reasoning that the Opinion of the Court should use, the standard practice would be (for instance) to have Justice A write parts I-III, then Justice B writing parts IV-VI, with lots of "concurring in parts" and "dissenting in parts" ("Justice A, concurring in the judgment and in the opinion as to parts I-III only").

    If there is a choice between an extremely limited ruling by Roberts and a more expansive equal rights ruling by Kennedy, I am pretty confident in predicting that the 4 liberals will join Kennedy's but not Roberts', making his a concurring opinion.

  • 32. JayJonson  |  March 31, 2015 at 8:17 am

    Thanks for the clarification. I hope that Kennedy and the other Windsor 4 will stand up to Roberts if he tries to wrest the opinion from them. I suspect, however, that he will wind up writing a mealy-mouthed dissent.

  • 33. wes228  |  March 31, 2015 at 9:06 am

    Roberts can't wrest the opinion from them. Whichever opinion gets 5 votes is the Opinion of the Court. Each justice is free to choose which opinion to sign onto.

  • 34. ianbirmingham  |  March 31, 2015 at 11:57 am

    When the Chief Justice is in the majority at the conference discussion following oral arguments, it falls to him to assign the majority opinion. On those occasions when the Chief is in the conference minority, the senior Associate Justice in the majority receives the responsibility of assigning the opinion.….

  • 35. wes228  |  March 31, 2015 at 12:32 pm

    Yes, the most senior justice in the majority assigns the opinion, but ultimately if that justice cannot write an opinion that a majority wants to sign onto, then that opinion does not become the Opinion of the Court.

    No justice can force another justice to sign onto an opinion they don't agree with.

  • 36. Decided_Voter  |  March 31, 2015 at 12:34 pm

    I believe that quote doesn't change what wes228 wrote above:

    Roberts can't wrest the opinion from them. Whichever opinion gets 5 votes is the Opinion of the Court. Each justice is free to choose which opinion to sign onto.,

    I thought it important to point that out.

  • 37. VIRick  |  March 30, 2015 at 2:14 pm

    Indiana's Anti-Gay Law Prompts Thousands of Businesses to Stand Up for Diversity

    Open For Service, an initiative aimed at supporting "businesses that open their doors for everyone — black, white, gay, straight, Christian, atheist, disabled," is selling stickers to businesses so they can display their stance against discrimination for the public to see. Participating businesses also get their name placed into an online business directory accessible to consumers.

    Since the campaign's March 11 launch, 3,121 businesses have signed up to be included in the directory and purchased a $10 sticker — which reads, "this business serves everyone" — a representative of Open For Service told The Huffington Post in an email.

    This movement is almost identical to the push-back campaign, "If You're Buying, We're Selling," which occurred in Mississippi after that state passed its "license to discriminate" law last year.

  • 38. 1grod  |  March 31, 2015 at 2:27 am

    NYT's 15/3/31 editorial board warns laws like RFRA (IN 101) may be a cover for bigotry:

  • 39. JayJonson  |  March 30, 2015 at 2:43 pm

    Indianapolis Mayor Greg Ballard has called on the Indiana General Assembly to add sexual orientation as a protected class and says he will issue an executive order stating that anyone who receives money from the city must abide by its human rights ordinance.

    Read more:

    But, of course, as long as RFRA stands, that executive order is not worth the paper it is printed on. Any vendor who receives money from the city or any employee of the city who feels that discriminating against gay or lesbian couples is part of their religious practice may sue the city under RFRA on the grounds that the mayor's executive order and the city's nondiscrimination ordinance burdens their religious liberty.

    The only way this moronic piece of legislation will go away is if it is repealed or amended in such a way that there is no question that it cannot be used to license discrimination.

  • 40. DeadHead  |  March 30, 2015 at 2:46 pm

    Interesting article… “Stealth Assault, Republicans are quietly strategizing to delete gay marriage from the party’s 2016 platform. The argument they are making to skeptical Republicans is blunt: If the GOP’s 2016 presidential nominee opposes gay marriage, he or she will lose to Hillary Clinton.”

  • 41. Randolph_Finder  |  March 31, 2015 at 7:29 am

    Have we really reached that point? If all of the people *who would have voted anyway* decide once they get into the voting booth to vote *just* based on Marriage Equality (Gays should or should not be able to walk into my county's courthouse and get a Marriage License. (Yes goes to the Dem, No goes to the Republican)) would the Democrat or the Republican win in the Electoral College?

    Remember, the voting public skews older than the general population, and the question isn't support in Connecticut or Texas, it is support in Ohio, Virginia, Colorado and Florida…

    And if it is true for 2016, was it even close to true in 2012?

  • 42. dlejrmex  |  March 31, 2015 at 9:00 am

    When I see…
    "To advocates, the issue is especially salient among younger voters who might otherwise lean Republican but vote Democratic because of the GOP's intransigence on social issues. "There will be Republican voters who trust the party on economics, who trust the party on national defense, but they might have a gay brother or a lesbian daughter, and even though they agree with the Republican Party on other issues…"

    I just shake my head… Sure when my mother was young, Republicans might have been the party of economics and national defense, but now? I understand that she can't see that it is no longer true. But young conservatives?? Anyone that looks at Republicans with a fresh perspective cannot really still believe that. And if they do, they are idiots because it is easy to know the truth with a little research of facts.

    Republicans have not been the party of sound economic policy anytime in my adult lifetime. War mongers absolutely but even then not looking at the long-term consequences of their war-mongering.

  • 43. ianbirmingham  |  March 31, 2015 at 12:08 pm

    …The belief that Republicans are more fiscally conservative than Democrats is an old one. It’s so deeply ingrained in the American myth that it’s hard to know where it started. But it’s completely, factually, undeniably wrong — and has been so for awhile.

    In their book Presimetrics: What the Facts Tell Us About How the Presidents Measure Up On the Issues We Care About, economist Mike Kimel and journalist Michael E. Kanell calculate the change in government spending under every president from Dwight Eisenhower to George W. Bush.

    They found that government spending, relative to the size of the economy, increased much faster under Republican administrations than under Democratic ones. George W. Bush presided over a greater increase in government spending than any president since Lyndon Johnson, and George H.W. Bush wasn’t far behind. Bill Clinton, in contrast, was the only president since Eisenhower to actually reduce government spending. Even Reagan didn’t do that.

    …Kimel and Kanell also report how the budget deficit fared under each president. Here’s where the “fiscal responsibility” myth really falls apart: The Republicans increased the deficit, while the Democrats reduced it!

    The least “fiscally responsible” administrations were Bush Jr., Bush Sr., Ford, and Nixon. The most deficit reduction came under Clinton and — believe it or not — Jimmy Carter.

    In fact, the only presidents in this group who added to our national debt burden were Reagan and the two Bush’s. Everyone else presided over a decline in government debt, relative to the size of the economy.

    For goodness sake, they said so straight to your face.

    “I am not worried about the deficit,” said Reagan. “It is big enough to take care of itself.”

    “Deficits don’t matter,” said Dick Cheney.

    …On Jan. 7, 2009, two weeks before Obama was sworn into office, the Congressional Budget Office reported that George W. Bush was bequeathing a budget deficit of $1.2 trillion. This year, the deficit is $1.3 trillion.

    In other words, 92 percent of the deficit that everyone blames on Obama was actually inherited from his predecessor.

    Here are the facts: In Reagan’s first term, government spending grew 8.7 percent per year. In his second term, it grew 4.9 percent per year. Under Bush Sr., 5.4 percent per year. Under Clinton’s two terms, 3.2 percent and 3.9 percent. Under Bush Jr., 7.3 percent and 8.1 percent.

    Got all those numbers? Okay. Brace yourself. Under Obama: 1.4 percent.

    …Anthony W. Orlando is a resident of southern Florida, a graduate of the Wharton School of Business and the London School of Economics. He runs a blog at

  • 44. wes228  |  March 30, 2015 at 3:10 pm

    Who was keeping track of the number of days since the 5th Circuit oral arguments? Have we surpassed the 6th's record for longest wait time for a decision?

  • 45. scream4ever  |  March 30, 2015 at 3:21 pm

    The 6th was 92 days, which the 5th will pass on April 11th.

  • 46. DACiowan  |  March 30, 2015 at 3:35 pm

    Of the Circuit Courts that have had hearings, the time from hearing to decision:

    7th Circuit – 9 days
    9th Circuit – 29 days
    4th Circuit – 76 days
    10th Circuit – 76 days for Kitchen
    5th Circuit – 80 days
    10th Circuit – 92 days for Bishop
    6th Circuit – 92 days

    On the Nth day of April, the Fifth will be at 81 + N days. (I am not counting the day of argument, so January 10 was Day 1, February 1 was Day 23, and so on.)

  • 47. jm64tx  |  March 30, 2015 at 4:26 pm

    I wouldnt turn blue holding my breath …

    In the Stanford Ponzi Scheme concerning the Golf Channel …

    Oral Argument was on September 2, 2014 and the initial decision was issued on March 11, 2015 … so over 180 days.

  • 48. JayJonson  |  March 30, 2015 at 3:15 pm

    Maggie Gallagher loves Mike Spence and lauds him for standing up for RFRA, though she doesn't think it goes far enough. She calls upon the Republican Presidential candidates to come to Spence's aid.

  • 49. ebohlman  |  March 30, 2015 at 4:37 pm

    It's not Spence, it's Pence, as in "Indiana recently crapped its Pence in public."

  • 50. VIRick  |  March 30, 2015 at 8:16 pm

    Yes, perfect example of correct word usage! LOL

  • 51. JayJonson  |  March 30, 2015 at 3:42 pm

    The right's favorite talking point re the Indiana RFRA is that it is just like the federal RFRA and the 19 other states that have RFRAs. As I have pointed out repeatedly, in response to ianbirmingham, that is simply not true.

    In an important article at The Atlantic, Garrett Epps also explains that this talking point is not true, using somewhat different examples than the ones I have used.

    "There’s a factual dispute about the new Indiana law. It is called a “Religious Freedom Restoration Act,” like the federal Religious Freedom Restoration Act, passed in 1993.* Thus a number of its defenders have claimed it is really the same law. Here, for example, is the Weekly Standard’s John McCormack: “Is there any difference between Indiana's law and the federal law? Nothing significant.” I am not sure what McCormack was thinking; but even my old employer, The Washington Post, seems to believe that if a law has a similar title as another law, they must be identical. “Indiana is actually soon to be just one of 20 states with a version of the Religious Freedom Restoration Act, or RFRA,” the Post’s Hunter Schwarz wrote, linking to this map created by the National Conference of State Legislatures.

    The problem with this statement is that, well, it’s false. That becomes clear when you read and compare those tedious state statutes. If you do that, you will find that the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. 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 except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

    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.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

    What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.

    Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”

    Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision. Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down."

    Read more:

  • 52. RnL2008  |  March 30, 2015 at 4:39 pm

    It's like the article I posted above…….the Indiana RFRA has a very specific difference in how the law handles religious issues between the individuals…..where the federal RFRA is about an individual and the Government.

  • 53. ianbirmingham  |  March 30, 2015 at 6:18 pm

    1) Allows for-profit businesses to use RFRA – that was already allowed by the Supreme Court in the Hobby Lobby decision, so no change from current law. Also, as Hobby Lobby points out, the government already had a workaround for non-profit religious corporations that provided contraceptive coverage to the very same extent at zero additional cost while still enabling these corporations to avoid being personally involved due to their religious objections. Hobby Lobby held that categorically denying for-profit corporations access to this existing workaround was not the "least restrictive means" under RFRA. I highly recommend that participants in this discussion go read what Hobby Lobby actually says:

    2) Assert RFRA in judicial or administrative proceeding even if government is not a party to the proceeding, for-profit corporations have free exercise – that is subject to the practical difficulties detailed in the Hobby Lobby decision, which for non-closely-held corporations result in a high probability that the "substantially burden" test will fail, hence no RFRA protection actually exists. Read the Hobby Lobby ruling.

    3) Assert RFRA in judicial or administrative proceeding even if government is not a party to the proceeding, defense against private lawsuit – this is a positive development for constitutional rights, creating a precedent which can later be applied to free speech, etc.

  • 54. RnL2008  |  March 30, 2015 at 6:21 pm

    The Hobby Lobby ruling clearly states that NO ONE can use their religious beliefs as grounds for discrimination…….and with regard to the Indiana RFRA is this Section, which is causing all of the problems and why Indiana is under the pressure it is:
    Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens.*

  • 55. jm64tx  |  March 30, 2015 at 6:38 pm

    "Do some RFRA supporters hope that such laws will allow individuals or companies to discriminate against homosexuals? Sure. But that is not what the text of the Indiana RFRA actually does. That’s important because courts generally apply the text of the law as written over the unenacted intentions of some subset of a bill’s supporters. Indeed, this debate is just one more example of why the textualist approach to statutory interpretation is a good idea. In any event, this debate is somewhat moot in Indiana because it doesn’t have a state law barring sexual orientation discrimination on the books."

  • 56. brandall  |  March 30, 2015 at 7:23 pm

    Instead of posting comments about being very offended by Indiana's bigoted law passed last week, I spent part of my weekend reading and learning about what I knew would come next after we win the marriage battle…. "Religious Freedom" acts…I am more knowledgeable now about the history of both the Federal RFRA (1993) and every single state version of RPFAs that have been passed since CT passed the first state version also in 1993. Read this site if you are looking for all of the actual enacted state laws:

    I purposely did not jump in the fray between Ian, Jay and others because, unlike the blatantly obvious marriage bans (marriage shall be between a man and a woman), these laws have evolved since the Federal RFRA with subtleties intentionally designed to go well beyond the right of an American Indian to smoke peyote or the rights of an incarcerated Muslim to have a short beard in prison. I needed to learn by reading the facts.

    Just as what we have witnessed with the blatant homophobic marriage bans, it is the combination of politics (read as fear mongering) and the enactment of new laws that truly tell us what Indiana's RFRA is all about. Several weeks ago, Utah passed a two separate laws in tandem, a religious conscious act and a anti-discrimination LG act. There was no fuss, no boycotts and actually an amazing balance from the Mormon church of which many of you know I have a first-hand (and painful) knowledge about.

    As we now have to deal with how to fight back on these laws, step back, look at the context, evolution of the wording and timing in which the legislatures enact these laws and you will see it is just Jim Crow returned with a pink flag.

  • 57. ianbirmingham  |  March 30, 2015 at 8:04 pm

    The RFRA laws simply call attention to the unfinished work of building out the antidiscrimination infrastructure. All geographic territory must be covered by anti-discrimination laws. Where those exist, RFRA gives way to the "compelling interest" in ensuring equality and Jim Crow is defeated. Where those don't exist, Jim Crow's pink flag was already in place. Looking at the current geography of anti-discrimination law coverage, there's a lot of territory that still needs to be taken away from Jim Crow.

  • 58. RnL2008  |  March 30, 2015 at 8:28 pm

    I understand your reasoning for why you do what ya do, but my point was pointing out just exactly why there is this big uproar about Indiana's RFRA and there is good reason to boycott the State and that is the small fact that Indiana deviated from not only the federal RFRA, but from other states as well by adding this very specific wording in Section 9:
    Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens.*

    The Federal Religious Freedom Reform Act applies to disputes between a person or entity and the Government. In Indiana, the Religious Freedom Act goes one step further by adding disputes that happen between PRIVATE Citizens like the florist, baker, photographer and so forth and so on. This is why when Governor Pence signed it into law….he knew it was different and why he stated today that there will be NO changing or removing the law……UNTIL the State starts to lose federal money and other revenues!!!

  • 59. ianbirmingham  |  March 30, 2015 at 8:42 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 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).

  • 60. ianbirmingham  |  March 30, 2015 at 9:06 pm

    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.

  • 61. JayJonson  |  March 31, 2015 at 6:42 am

    Ah yes, relying again on that bastion of equal rights, the National Review, which btw was an outspoken opponent of the 1964 Civil Rights Act, which it no doubt said was no big deal either.

  • 62. RemC_Chicago  |  March 30, 2015 at 8:43 pm

    Check out tomorrow's Indy Star's editorial. No word mincing there!

  • 63. Sagesse  |  March 30, 2015 at 9:25 pm

  • 64. StraightDave  |  March 31, 2015 at 10:51 am

    The problem is, Pence and most of the GOP think the RFRA "was" the fix. They have no intention of fixing this law the proper way. But I suspect the state will melt down from all the well-deserved heat they're getting and they'll attempt some mealy-mouth compromise, which will bring even more flak. I hope some of the other states are taking notes.

  • 65. JayJonson  |  March 31, 2015 at 11:22 am

    I hope the other states are also taking notes. I suspect that Georgia and North Carolina will abandon their attempts to enact such laws. They both have a lot to lose from boycotts.

    Texas, however, has no shame and may be too big to hurt via boycotts, so their legislature will probably persist. The only thing that may deter them is some straight talking from the NFL and the NCAA.

    Arkansas legislators may just be too stupid to get the lesson; and the state does not rely too much on tourism and has no major league sports teams, so they may be exempt from boycotts. Of course, the legislature usually asks "how high" when Wal-Mart or Tyson Chicken says "Jump!"

  • 66. VIRick  |  March 31, 2015 at 1:44 pm

    Jay, Governor McCrory of North Carolina is opposed to any/all "license to discriminate" legislation, and has pro-actively promised to veto any such bills which might happen to end up on his desk. See:

    Oh, and the problem with Arkansas,– I already boycott Wal-Mart and refuse to eat Tyson chicken. What else to they have?

  • 67. brandall  |  March 31, 2015 at 2:08 am

    "If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore.” Governor Mike Pence in the Wall Street Journal to be published Tuesday, 3/31/15.

    And there you have it. In Indiana, we must now sit at the back of the bus.

  • 68. Steve84  |  March 31, 2015 at 6:23 am

    I also don't believe him. He is just saying what he thinks people want to hear. In reality he has a severely anti-gay record. He wanted a federal same-sex marriage ban and spoke out vehemently against DADT repeal – where he called being gay a "lifestyle choice"

  • 69. JayJonson  |  March 31, 2015 at 11:18 am

    Yes, his campaigning against DADT was shameful. He opposed the repeal because it would "mainstream homosexuality." AND now the liar claims that he doesn't support discrimination?

  • 70. brandall  |  March 31, 2015 at 2:45 am

    Jeb Bush: "Mr. Bush stated the Indiana law was about “simply allowing people of faith space to be able to express their beliefs.”

    Express? Excuse me. "Express" and "I have the legal right to not serve you a cup of coffee" in my diner are very, very different.

    "Mr. Bush defended the law as similar to legislation in Florida and as a safeguard for religious belief." Apparently, Mr. Bush needs a remedial reading class. The Florida law does not extend to a persons right to discriminate against a class of the population.

  • 71. StraightDave  |  March 31, 2015 at 10:54 am

    So I guess he just folded his election cards then.

  • 72. JayJonson  |  March 31, 2015 at 6:05 am

    If Pence and the defenders of RFRA and others who say Indiana's law is just like the federal and previous state RFRAs were truthful, they would have no problem with substituting the current version with the federal version. Why don't they do that? The problem would go away, but they would not thereby accomplish their objective, which is to license discrimination when it is cloaked in religious belief.

  • 73. JayJonson  |  March 31, 2015 at 7:03 am

    Our SCOTUS attorneys have been chosen: Mary Bonauto will argue the right to marry in the Michigan and Kentucky cases; while Douglas Hallward-Driemeyer will argue marriage recognition in the Ohio and Tennesse cases.

    See Joe.My.God for more details.

  • 74. JayJonson  |  March 31, 2015 at 7:13 am

    Stephen King has a way with words: "Indiana's Religious Freedom Restoration Act is gay discrimination, pure and simple. You can frost a dog turd, but it is still a dog turd."

  • 75. JayJonson  |  March 31, 2015 at 8:25 am

    Pence is currently holding a news conference, repeating his talking points about the RFRA not being a license to discriminate, about it being the same as the federal RFRA, etc. He is lying through his teeth. Someone should ask him about the debate in the legislature, about why he signed it in private, about the fact that he was standing next to some of the most notorious homophobes in America as he did it. He is playing his victim role about how misunderstood he and Indiana have been and how he has been smeared by the media and activists. Of course, he adds that he doesn't support a nondiscrimination ordinance covering sexual orientation and gender identity.

  • 76. hopalongcassidy  |  March 31, 2015 at 8:47 am

    The sonofabitch is shameless. If he actually doesn't know his bill was engendered by animus and bigotry, he's stupider than a tub of dead garden slugs and if he does know it, he's a hypocrite and a bigot himself. Either way he isn't qualified to lead a state, not even one full of 'hoosiers'.

  • 77. JayJonson  |  March 31, 2015 at 8:59 am

    hopalong, you give Stephen King a run for the money in the use of words: "he's stupider than a tub of dead garden slugs"! I love it and will shamelessly appropriate it when the proper occasion arises.

  • 78. hopalongcassidy  |  March 31, 2015 at 1:02 pm

    Use it well and often, with my ….uh, blessing. 🙂

  • 79. Wolf of Raging Fires  |  March 31, 2015 at 10:20 am

    Sometimes I think I love you, you crazy weirdo.

  • 80. hopalongcassidy  |  March 31, 2015 at 12:49 pm

    It has not escaped my ken that I'm not an easy person to love…my attempts at brutal honesty don't always come off with brutal and honest in a draw but I really do try. I've changed my mind about lots of things in my 72 years but never my dedication to truth even when it's unpopular or even hurtful. I wish that wasn't ever a result but then nobody ever promised us a rose garden (even though the really sincere Muslims seem to think they're heir to one…a 'Paradise" that resembles not only the christian 'heaven', but a pretty much open air whorehouse which doesn't appeal to me.) Sometimes the genie of science and facts unzips his fly and pees all over the pillars of faith…I just help him with the aim. 🙂

  • 81. Wolf of Raging Fires  |  March 31, 2015 at 12:59 pm

    Yup, it's love. Can't wiggle without a hop. 😉

  • 82. VIRick  |  March 31, 2015 at 1:52 pm

    Hop is good. But this is the line I like the best:

    "…. not even one full of 'hoosiers.'"

    What's a hoosier? Is that half of a yay-hoo?

  • 83. Wolf of Raging Fires  |  March 31, 2015 at 1:55 pm

    I think it's a vacuum of some kind? *shrug*

  • 84. StraightDave  |  March 31, 2015 at 10:31 am

    In other notable events…
    " Today, an Indiana legislator attempted to spruce up the state's tarnished image and head off an impending international boycott by proposing a bill to temporarily change the state's name to "South Africa 1.0"

    – The Vidalia News

  • 85. DeadHead  |  March 31, 2015 at 10:39 am

    Mike Pence is “stunned and amazed” that so many people appear to have gay friends, Pence has confirmed. Speaking to reporters in his office in Indianapolis, Pence said that he made the astonishing discovery about gay friends late last week. “When I see so many people having gay friends, it makes me wonder if I should go out and get one,” he said. “But I guess that would be kind of hard for me to do now.”

  • 86. VIRick  |  March 31, 2015 at 1:55 pm

    Ah, that's Borowitz again, mocking the shit out of Pence!!! Here's an earlier one:

    Indiana Defines Stupidity as Religion

    INDIANAPOLIS – In a history-making decision, Gov. Mike Pence of Indiana has signed into law a bill that officially recognizes stupidity as a religion. Pence said that he hoped the law would protect millions of state residents “who, like me, have been practicing this religion passionately for years.”

    The bill would grant politicians like Pence the right to observe their faith freely, even if their practice of stupidity costs the state billions of dollars. While Pence’s action drew the praise of stupid people across America, former Arizona Governor Jan Brewer was not among them. “Even I wasn’t dumb enough to sign a bill like that,” she said.

  • 87. JayJonson  |  March 31, 2015 at 11:46 am

    New York Governor Cuomo has issued a travel ban by state workers to Indiana. He joins the governors of Washington and Connecticut, and the mayors of San Francisco and Seattle in issuing travel bans.

    I am heartened that these officials, along with so many businesses and other associations and organizations have stood up for equal rights.

  • 88. guitaristbl  |  March 31, 2015 at 12:00 pm

    It's a pitty (and not a coincidence of course) that this measure comes in a time when democrats are in an all time low in terms of controling governorships and state legislatures.

    It goes without saying that no GOP governors (not even more moderate ones like the ones in Massachussets, Nevada or Maryland) will be brave enough to follow CT,NY and WA.

  • 89. RemC_Chicago  |  March 31, 2015 at 12:30 pm

    On the plus side, we've got Republican governors like McCrory in NC resisting a religious freedom bill.

  • 90. Pat_V  |  March 31, 2015 at 2:36 pm

    It would be great if California did that too. Has Jerry Brown said anything about that yet?

  • 91. StraightDave  |  March 31, 2015 at 12:53 pm

    Pence is such a tool. On Fox today he says "this law was never intended to create the impression that businesses can turn away customers on the basis of sexual orientation".

    Of course not, you asshole. It was intended to create the fact and the law that businesses can turn away customers on the basis of sexual orientation, while simultaneously trying to maintain the impression that you're really a bunch of nice christian guys. How stupid do you think we are?

    The proof of that is his own words in the WSJ, "If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore.” Would he arrest them for violating the law? Of course not, since now businesses can most certainly "turn away customers". He'll just slink away, hide his head in the sand, and let it happen. Innocent enablement, 1960's style. Great leadership there, Guv.

    I hope you realize the rest of your GOP cronies are gonna throw you under the bus to deflect attention from themselves. You get to be the poster child while they sit safely on the sidelines contemplating which way the wind is blowing.

  • 92. JayJonson  |  March 31, 2015 at 2:41 pm

    Someone has resurrected an old website that Pence had when he was in Congress. He vows there never to support any laws prohibiting discrimination against gays and lesbians. He also says he is opposed to Don't Ask, Don't Tell because he does not think homosexuals should be allowed to serve in the military under any circumstances. And this man claims to be against discrimination. What a liar. Luckily, all his pious claims are being exposed as the lies they are.

  • 93. Steve84  |  March 31, 2015 at 5:51 pm

    He also wrote some absolutely insane op-eds, saying that smoking doesn't kill, Titanic was so popular because it's a metaphor for America's decline, and that CO2 can't cause climate change because it's natural:

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