Saturday, March 28, 2015

Freedom Indiana's Vile, Pointless Anti-RFRA Campaign Greatly Undermines Goal of Passing Sexual Orientation Anti-Discrimination Law

Quick question.  If I have a business in Indiana, can I refuse to serve gay customers?  With the exception of a few municipalities, the answer is "yes."

It has nothing whatsoever to do with the Religious Freedom Restoration Act.  It has everything to do with Indiana not having a law prohibiting discrimination against someone based on his or her sexual orientation.  Some cities have such a law, but Indiana, as a state, does not.

The existence of an RFRA on whether someone can be served is irrelevant. Even if Indiana had anti- discrimination law that applied to sexual orientation, the  RFRA wouldn't change that.  Sure someone could claim the RFRA as a defense to serve a customer in contravention of an anti-discrimination law. And you know what?  In every RFRA case across the country, the plaintiff lost that argument.  Courts have universally found that government has a compelling interest in preventing discrimination.

That's what the RFRA requires.  That if government is going to unduly burden a person's religious beliefs with a law, government must have a compelling reason for that law for its application to be upheld.  Again, in every case where the RFRA has been used a defense to the application of an anti-discrimination law, that compelling interest has been found and the law upheld.  Most religious liberty cases brought under the RFRA, by the way, have nothing to do with challenges to anti-discrimination laws.

These past few days, I have witnessed Freedom Indiana, the chief organization supporting LGBT rights, employ the most vile and dishonest political tactics ever seen in Indiana politics.  In addition to demagoguery taken to new Hoosier heights, the organization engaged in threats, name-calling, and enlisted corporate "partners" to issue extortion threats in an attempt to kill the RFRA   This is in sharp contrast to the positive campaign Freedom Indiana ran last year in support of same sex marriage, a campaign that won the support of many of the people the organization has now viciously turned on in opposing the RFRA.

What did Freedom Indiana accomplish by its anti-RFRA campaign?  Not a damn thing.  Even if Freedom Indiana had stopped the RFRA, again it would not have accomplished nothing.  With or without an anti-discrimination law, the RFRA is completely irrelevant to the LGBT cause.   

Freedom Indiana's tactics might aid fundraising (one has to wonder if this may have been the actual goal behind its RFRA opposition), but by its inexplicable scorched earth approach to the RFRA, the organization has greatly hurt the LGBT cause.  With the people the organization chose to attack in opposing the bill, the organization has turned a lot of otherwise allies into hardened political enemies who will not be in the mood to do anything for Freedom Indiana in the future.

Imagine instead of this pointless opposition to the RFRA, a law which again is irrelevant to the LGBT cause, Freedom Indiana had run a positive campaign promoting the need for a state anti-discrimination law that covered sexual orientation.  Imagine the organization doing what it did in 2014, using a positive message to promote a issue, telling heartfelt stories from real people about the need for an sexual orientation anti-discrimination law. 

In a few years, it is likely Freedom Indiana would have prevailed.  Now does anyone think that those legislators and RFRA supporters that the Freedom Indiana so viciously and unfairly attacked will now want to do Freedom Indiana any favors?  Absolutely not.

Freedom Indiana, with its vile and pointless campaign against the RFRA, set the cause for LGBT rights back 10-15 years, if not more.


Anonymous said...

As a highly educated, adult gay male who has been out since the early 1980's, I concur that the unelected "leaders" of Freedom Indiana set the local and state LGBT fight back at least fifteen years with their "vile, pointless" and disgusting campaign against the RFRA.

This is no surprise to me as Freedom Indiana is "led" by the self-appointed, the unelected, and the self-important... and you will know the group by the persons it allows itself to be shepherded. The old guy who is the familiar face of Freedom Indiana is a self-described left of center Democrat whom I've seen and heard spew intolerance, hate, bigotry, and even racism against Christians, Republicans, and Conservatives for the sole fact they do not follow his agenda. Cursing, shouting, slander, and mockery are not key components of the leadership skill set. This seems to be the mindset of all left liberal Democrats and to deviate from this party line is not to be tolerated. And there you have it... intolerance and hate by the very people who decry bullying and the marginalization of others.

I am so tired of issues like this which are used to divide and distract us from the damage another far left of center liberal Democrat has done to this country. What good are gay rights when we are in the chains of tyranny and the bleak life of socialism?

I firmly believe most people do not care whether someone is gay or is not gay. What people DO care about is when someone else's beliefs are crammed down their throats and I cannot fault that one iota.

Professor David said...

The horse has been out of the barn for a long time. Same sex marriage is going to come everywhere (it is already in Indiana), and a simple Google search will find lots of well-known, powerful politicians who had talked about this in the most draconian terms, that this is the greatest threat to our civilization. I can believe that Freedom Indiana may have been overly dramatic in fighting the RFRA, after all they are a pressure group, and they want to keep in the news. But a far worse example is the legislature. A little over a year ago they were excited about passing a constitutional amendment, and I doubt that this legislation is more than a consolation prize for their failure. I found it disgusting that there was such an `emergency' that this gets fast-track attention in the legislature, the very next year. There was no reason for the majority to act this way, and instill such hysteria. I would expect a lawyer to ask the majority party to tone it down. In the mean time, we have an HIV epidemic in Scott County (which gets far less attention that the tiny number of ebola cases received last year), abetted by the Governor's foolish principle not to allow needle exchanges. You usually have an intelligent point of view, but I think your anger at the liberal remnants in Indiana colored you analysis of what is happening here.

Paul K. Ogden said...

Prof. David, it wasn't the Republican majority that spread hysteria, but it was the opponents of the RFRA who engaged in the most dishonest campaign of demagoguery I have ever seen. To say Freedom Indiana was over dramatic is far too kind. The organization was downright deceitful. Surely there were people in the organization who know perfectly well that the RFRA had no effect on anti-discrimination laws whatsoever. Yet they took the misrepresentation and ran.

I really don't think the Republican majority had any idea of the (over)reaction. After all, the same law exists at the national level and in 29 other states. I've said before, if the GOP wouldn't have fought the fight over same sex marriage last year, RFRA would have passed nearly unanimously in the state legislature.

Anonymous said...

Paul, you display a gross understanding of the Indiana RFRA law. Because the law can be inserted in a private lawsuit, it is designed to allow parties in communities that have anti-gay discrimination laws in place to masquerade their discrimination under their "religious beliefs." I am sure people are lining up to test the law and rightwing fundamentalist lawyers all over Indiana are gearing up to defend bigotry. Oh, but that's right, you can't get in on any of thac action, can you?

Professor David said...

Thanks for your thoughtful reply. I am less connected with Indiana politics, but I can see a real case that Freedom Indiana is whipping up a lot of support, and likely overstating the consequences of this law. When I referred to the horse having been out of the barn for a long time, I was referring to the national movement coinciding with the 2004 election to install constitutional amendments against any possibility of having gays marry. I just googles " 'gaymarriage' threat civilization" and got over 350,000 hits. I do agree that the Republican majority was unprepared for the backlash, but I think you are misreading the facts to attribute that to the leadership of Freedom Indiana (a group with which I have no connection). The mood of the nation has shifted a lot since 2004. The original federal law (via wikipedia) was in reaction to the Supreme Court allowing drug convictions against native americans to be unaffected by the fact that peyote smoking was a long-standing part of their culture. My internet search got no hits on this history of the Illinois law. But because a law got passed 10 or 20 years ago does not transfer the circumstances to today. Many used to argue that one had to consider original intent. I doubt that the issue of handling gay Americans ever was on the horizon 22 years ago. When the Patriot Act was passed in the hysteria after 9/11, I doubt that anyone considered that they were signing away their privacy rights forever.

Paul K. Ogden said...

Anon 8:38,

Indiana's RFRA does not prevent local governments from passing anti-discrimination laws that apply to sexual orientation. If a lawsuit is filed over such a local law, all that needs to be shown is that there is a compelling interest for the law. Again, in the entire 30 year history of the Sherbert test and the 22 year history of the RFRA, never has a court found that there was not a compelling interest for an anti-discrimination law. Try to find a case where that has happened. You can't because there isn't one.

As far as my getting in on that legal action, since I'm not practicing law now that isn't going to happen. Any attorney who thinks the RFRA is going to be the source of substantial litigation is a fool. 52 years of history suggests otherwise.

Paul K. Ogden said...

Prof. David,

I totally agree that the mood of the nation has changed substantially in terms of same sex marriage and discrimination against discrimination against people because of sexual orientation. Most of that change has not happened within the last 6 years. I don't think though that translates into a hostility toward religious freedom among the general electorate. The left today is much, much more hostile towards religion and I think the Democrats are going to pay a price for that. President Clinton understood that the Democrats had to neutralize Republicans advantage among religious types in order to win elections. I think that lesson is lost on a new generation of Democrats.

Hernan Dough said...

Free-dumb Indiana

Anonymous said...

• This bill is a great deception that allowed the well meaning and sincere conservative religious right to advance a 'let your conscious be your religious guide' principle to crumble under the weight of legislative language that can claim an overriding 'compelling government interest' anytime it finds a loophole in the law permitting it to do so. The Hoosier legislature has codified what they claim is already Federal Law and by enshrining the principle into law, it has sabotaged the agenda of the religious right who just don't know it yet. What a colossal blunder.

Paul K. Ogden said...

Anon 3:07, the Supreme Court in 1997 ruled that the federal RFRA didn't apply to states, that each state had to adopt their own.

As far as the "colossal blunder" that would be Freedom Indiana and its allies who engaged in a vile and despicable attack on legislators and those who support RFRA when in fact the RFRA is irrelevant to advancing LGBT rights. You think legislators are now going to want to help them pass an anti-discrimination law covering sexual orientation after their RFRA tactics. Not likely. It was a stupid, stupid strategic mistake by Freedom Indiana.