Wednesday, April 1, 2015

The Real Reason the Indiana Religious Freedom Law Must Not Stand

The Atlantic has a good article explaining why Indiana’s so called “Religious Freedom Restoriation” law is different from and much more dangerous than Federal and other states’ similar acts.  As Garrett Epps points out in that article, there are two huge problems with the Indiana law that make it very different from similar laws passed by Congress and other states.  These differences make the Indiana law a major threat to the rights of not just the LBGT community but to all Americans.

First, the Indiana law greatly expands the definition of “a person whose religious exercise has been burdened” by any governmental law or regulation to include not just individuals, but “(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.  In other words, corporations are “people too.”  So are just about all organizations and entities that provide products or services whether for profit or not.  All of these entities, not just individuals, can claim a religious exemption from the applicable law or regulation.  So, Mr. or Ms. Corporation, go ahead and ban gays, blacks, Hispanics, or whomever you wish on religious grounds because YOU Mr or Ms Company are a person too.

Second, the Indiana law protects this broadly defined “person’s” religious exercise from being burdened even when no government agency is involved in the judicial or administrative proceeding related to the enforcement of the law or regulation.   Section 9 of the Indiana law reads:  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.  You can use the religious excuse under just about any circumstance to avoid having to abide by anti-discrimination laws.

Okay, so what is wrong in treating companies the same way we treat individuals?  Just this.  Real People—John Smith, Jane Doe, etc.—are not products of the state.  They don’t come into existence because some government agency creates them.  Companies do.  If you want to incorporate a business, you have to obtain the approval of the state by paying a fee and showing that you and your fellow owners of the business meet certain legal requirements.  In return for seeking and obtaining state approval and recognition, you and your partners in the business obtain enormous benefits:  favorable tax treatment and the ability to deduct business expenses, enhanced credibility with customers, brand name protection, and, most importantly, protection of your personal assets and those of your fellow investors.  Your personal liability for the debts and obligations of your company is limited in the case of a lawsuit or claim against your business.  The State (actually the people through their government) grants you and your co-owners of your business these protections and benefits  In return, your company must abide by the laws and regulations of the state and federal government in regard to your business operations including laws forbidding your company from discriminating against customers and potential customers, even when the discrimination is dictated by some perverted religious belief.

Bottom Line:  If you—John Doe or Jane Smith--do not want to associate with certain individuals or groups of individuals, for whatever reason, including reasons dictated by your religious beliefs, that are wrong headed, mean spirited, immoral, unethical and/or just plain dumb, that’s your privilege.  Go ahead.  You will probably miss getting to know a lot of great people but that’s your choice.  Go live in your sanctimonious Hell.  However, when you hang out your business shingle to offer your products and/or services to the general public for a fee and, in particular when you seek the recognition and benefits of incorporation, you no longer have the right to be treated like just another person, at least with regard to how you conduct your business.  In the conduct of your business, you have obligations to the state and obligations to the public at large.  One of those obligations is to abide by all the laws and regulations against discrimination.  The Indiana law would eliminate those business obligations not to discriminate.  That is why the Indiana law is wrong and so very dangerous.  It can not be allotted to stand.

Read the Federal Religious Freedom Restoration law here:

Read about the benefits of incorporation here:

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