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Thread: Indiana Governor Backs Down, Calls For 'Fix' To Religious Law-

  1. #41
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    Quote Originally Posted by Tennyson View Post
    No state law or federal law prevents anyone from discriminating. Businesses and people discriminate each day regardless of the law. People will do what they do, the law is a remedy if they do. The penalty would be relief from a court of law.
    Yes, but only in those areas where there is a law that prevents such discrimination. And there's a real question whether religious freedom acts will counter such discrimination laws. Does the existence of such a law alone constitute a compelling state interest? What about those places where there is no such law (e.g., most of Indiana)?

    No court has allowed a RFRA defense for discriminating.
    How many cases have been brought?
    And no court ever will, and if they do, it will be overturned on appeal with a rebuke.
    I think we should dismiss out of hand unequivocal statements of this kind. Lawyers never talk like this. Politicians sometimes do, but then they just want to get elected--and no politician can keep promises after he's dead, so that kind of puts a crimp in a "never" statement.

    Anyone commenting on the law can handicap what will happen--that's what lawyers get paid for. No one can predict what will happen, forever, in the future. And interpretations of law change. That's like someone saying "No one will ever make you send your child to school with a ******" after SCOTUS decided Plessy.

    When you're less certain of yourself, you'll be a better debater.

  2. #42
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    Quote Originally Posted by MGunner View Post
    BASED ON A STATE ACTION...

    Sec. 5. As used in this chapter, "state action" means:
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    (1) the implementation or application of a state or local law or
    19
    policy; or
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    (2) the taking of any other action;
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    by the state or a political subdivision of the state.
    Your point?

  3. #43
    Veteran Member MGunner's Avatar
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    Quote Originally Posted by Singularity View Post
    I specifically addressed that claim in my post, which should only reaffirm for anyone else that it isn't possible to defend the status quo of this law unless you want to be completely disingenuous about what the problem is. The language doesn't exist, but laws don't require specific language to be exploited. With the way it's broad provisions for legal defense apply — and no specific protection against discrimination in place — there's a big problem for anyone against discrimination.

    I mean, seriously guys. Do you really want to argue that a poorly written law can't be exploited, and that no effort should be made to guard against this? Really?
    There are local anti-discrimination laws in place... See Indiana... Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity | Resources | Human Rights Campaign

  4. #44
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    Quote Originally Posted by Tennyson View Post
    No state law or federal law prevents anyone from discriminating. Businesses and people discriminate each day regardless of the law. People will do what they do, the law is a remedy if they do. The penalty would be relief from a court of law.

    No court has allowed a RFRA defense for discriminating. And no court ever will, and if they do, it will be overturned on appeal with a rebuke.
    Section 7

    As used in this chapter, “person” includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

    Section 9

    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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

    Your ignoring that what makes this law new and different is its application to disputes between private citizens.

    Your also ignoring the splits in some of the circuit courts

    Does the federal RFRA also provide a defense? It depends on what Circuit you’re in. Shruti Chaganti writes in the Virginia Law Review about this split.

    The circuits are split as to whether 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.

    Some circuits (CA2, CA9, CA8, CADC) hold that RFRA can be raised as a defense: Some circuits (hereinafter “defense circuits”) have allowed RFRA to provide a defense in citizen suits, finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.7 Under this reading, an unambiguous version of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief (including against a government).”8 This reading makes clear that relief against a government is merely an additional right—a subset of the more generally obtainable relief under RFRA. Thus, “claim or defense in a judicial proceeding” is freestanding and not limited by the “obtain relief” phrasing.

    Comparing the Federal RFRA and the Indiana RFRA | Josh Blackman's Blog

  5. #45
    Veteran Member MGunner's Avatar
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    Quote Originally Posted by Amelia View Post
    "Being sued for not participating in a same-sex marriage ceremony."

    What does that mean?

    Who other than a professional service-provider would face such a lawsuit?

    And if this law is to protect a professional service-provider from having to participate in a same-sex marriage ceremony when they would have participated in a heterosexual marriage ceremony, then the law's purpose is indeed to permit discrimination against gays.

    So you believe that a pastor that could be sued for not agreeing to perform a same sex wedding should not be able to claim a religious defense? Again,I'm not agreeing that this law even sets the stage for such a defense because I don't believe, and these 16 law professors don't believe, it does. http://www.indianahouserepublicans.c.../RFRA/RFRA.pdf

    Do you agree that the interests of religious should be set aside for the interests of another when other options are available for the aggressor?

  6. #46
    Veteran Member MGunner's Avatar
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    Quote Originally Posted by Rasselas View Post
    Your point?
    There is no protection in the event of private entities suing one another.
    Last edited by MGunner; 31st March 2015 at 01:27 PM.

  7. #47
    You'll see what I can do Singularity's Avatar
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    Quote Originally Posted by MGunner View Post
    Precisely. That's why IndyStar says expand those ordinances to the state level. There's no reason to not do so given the situation.

    Unless, of course, you think the law is targeted against gays and would be disappointed to see that change, like this guy.

  8. #48
    Veteran Member MGunner's Avatar
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    Quote Originally Posted by HayJenn View Post
    Section 7

    As used in this chapter, “person” includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

    Section 9

    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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

    Your ignoring that what makes this law new and different is its application to disputes between private citizens.

    Your also ignoring the splits in some of the circuit courts

    Does the federal RFRA also provide a defense? It depends on what Circuit you’re in. Shruti Chaganti writes in the Virginia Law Review about this split.

    The circuits are split as to whether 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.

    Some circuits (CA2, CA9, CA8, CADC) hold that RFRA can be raised as a defense: Some circuits (hereinafter “defense circuits”) have allowed RFRA to provide a defense in citizen suits, finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.7 Under this reading, an unambiguous version of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief (including against a government).”8 This reading makes clear that relief against a government is merely an additional right—a subset of the more generally obtainable relief under RFRA. Thus, “claim or defense in a judicial proceeding” is freestanding and not limited by the “obtain relief” phrasing.

    Comparing the Federal RFRA and the Indiana RFRA | Josh Blackman's Blog
    Again, this applies to the courts when a private citizen sues a government entity or is sued by a government entity... The religious freedom claim must be reviewed by the court. There wasn't a requirement for the court to review religious freedom claims just like what happened in Steinmetz v Kansas.

  9. #49
    Veteran Member MGunner's Avatar
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    Quote Originally Posted by Singularity View Post
    Precisely. That's why IndyStar says expand those ordinances to the state level. There's no reason to not do so given the situation.

    Unless, of course, you think the law is targeted against gays and would be disappointed to see that change, like this guy.
    Lol... Sure! We can model it on the Federal law...

  10. #50
    Veteran Member MGunner's Avatar
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    Quote Originally Posted by Singularity View Post
    Precisely. That's why IndyStar says expand those ordinances to the state level. There's no reason to not do so given the situation.

    Unless, of course, you think the law is targeted against gays and would be disappointed to see that change, like this guy.
    So you would support the RFA if this laws were applied at the state level? You agree that the RFA is really just a balance test for the courts?

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