Considering Religious Freedom Restoration Act Sound Bites

What is the logic of the courts on this type of question so far?

Indiana Court of Appeals denied a state police officer’s request to be exempt from working on a riverboat because of his religious objections to gambling.

Why?

Two reasons.  First, religious liberty, while important, is not absolute.  It must be weighed against other rights.  Second, “Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical.  Just so with police.”

The US Supreme Court found unanimously that the Arkansas Department of Corrections must accommodate a prisoner’s religiously-based exemption to the no-beard policy.

Why?

“The unanimity turned on the fact that no third parties were required to bear the cost of the requested accommodation.”

The US Supreme Court said employers cannot be required to accommodate employee religiously-based requests for days off.

Why?

“The First Amendment…gives no one the right to insist that, in pursuit of their own interests others must conform their conduct to his one religious necessities.”  That is the  “Constitution allows for special exemptions for religious actors, but not when they work to impose costs on others.”

US Supreme Court denied a request by an Amish employer seeking to not pay Social Security taxes on behalf of his employees.

Why?

“When the followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

Governing Logic/Constitutional Principle:  Religious liberty cannot be protected by shifting a burden to third parties.

Indiana RFRA Likely Violates State and Federal Constitutions

RFRA violates this principle by granting religious liberty special status, putting it above “parallel compelling state interests such as public health and safety, equality, and other fundamental liberties.”

No language in RFRA prohibiting the shifting of costs to third parties, thus violating “Article 1, Section 4 of the Indiana Constitution, a provision that prohibits the law from preferring religious over non-religious policies and practices.”

RFRA creates a legal way to shift costs…violates US Constitution, Establishment Clause…government endorsement of religion.

Does State RFRA Mirror 1993 Federal RFRA?

Not unambiguously.  Many who voted for the law no retract on the basis of disagreements about how it has been applied, including treating corporations as individuals with religious liberty.

No.  Federal and most other state RFRAs “provide that in order to pass constitutional muster the alleged burden…must be ‘in furtherance of a compelling government interest.’”  Whereas the Indiana RFRA says it must be ‘essential to further….’  This raises the standard, making it more difficult to justify a burden, thus easier to claim religious exemptions…particularly to claim religious exemptions as a defense against charges of discrimination.

No.  The definition of ‘person’ in the Indiana RFRA “differs substantially” from the definition in the Federal statute. 

Is Indiana RFRA ‘hardly radical’?

Broad language invites confusion and litigation, encouraging landlords and corporations to break the law on the assumption that they have a religious justification…and “the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or police officer’s private religious beliefs.”

[Excerpts pulled from a letter to Representative Ed DeLaney (Indiana House) signed by 30 law professors specializing in these areas of law.]

When our moral convictions conflict with the law

Consider this...usually, when we speak about the sacrifices needed to live up to our own moral convictions we mean our own sacrifices...not compelling others to sacrifice for our moral convictions (which seems both cowardly and immoral).

Politifact analyzed Pence’s claims here.  Find them to be ‘half-true.’

Here is the Akron Beacon Journal article from today.  This article quotes Pence making these two comments.

“This is not about discrimination.”  Here claiming that this law is not related to efforts to roll back gay marriage and gay rights in Indiana, as critics have charged.

“Look, the issue here is still is tolerance a two-way street or not.”  Here claiming that this law is an effort to push back against groups securing rights by insisting that these groups have to tolerate hostility from groups that already had these rights.

In the first quote, which represents Pence’s overall strategy of response, he claims that this law has nothing to do with anything other than religious freedom.  In my view, this is spin and a classic illustration of what philosophy professor Harry Frankfurt’s calls bullshit:  he is not lying; but he is fundamentally misrepresenting his intentions.  

He is being phony and fake, as his second quote reveals.  

Mediation-Related Cartoons
My students submit their weekly Reflection Papers on blogs they created on Tumblr and by this point in the term they are required to include embedded hot links and images.  Here are three images they included this past week.  We are reading Getting to Yes.

Official Discretion Changes the Meaning of the Law on the Ground

The US Department of Justice issued its report on Ferguson on March 4, 2015.  That report is as much about an aggressive and illegal approach to police work as it about judicial discretion gone awry and city political leaders using police fine collection as a major source of revenue, both reflecting and reinforcing racial bias in the city of 26,000. 

Here is a link to the full report.  102 pages, but well worth a close reading.

Among the numerous disturbing findings in this report, one that stands out for me is this one:  Black residents were more than two times more likely to be searched (among those in vehicle stops) even though black drivers stopped and searched accounted for only 26% of contraband discovered in a search following a vehicular stop. 

Meaning:  not only are blacks stopped more than twice as often, but these stops are a waste of taxpayer funds, because the stops are not linked to crime or contraband…but to race.

Finally, another interesting finding involves the city’s contention that the disparate impact is a result of a ‘lack of personal responsibility’ among blacks in the city. 

“Even as Ferguson City officials maintain the harmful stereotype that black individuals lack personal responsibility—and continue to cite this lack of personal responsibility as the cause of the disparate impact of Ferguson’s practices— white City officials condone a striking lack of personal responsibility among themselves and their friends. Court records and emails show City officials, including the Municipal Judge, the Court Clerk, and FPD supervisors assisting friends, colleagues, acquaintances, and themselves in eliminating citations, fines, and fees” (74).

Somehow the glaring and harmful lack of personal and professional responsibility of white leaders in Ferguson—manifest in the lack of accountability and respect for the law among city, court and police personnel—constitutes leadership?