Bill Black: The Homophobic Law and the Indiana Governor Who Dares Not Speak Its Purpose

Yves here. Since we ran a post yesterday on Indiana’s anti-gay law that is pretending not to be one, I thought that was plenty on this topic. However, when Bill Black sent me his brief legal analysis of the bill, I changed my mind. This legislation is a remarkably nasty piece of work. The trick is that the “religious” ground do not have to hew to any organized religion, giving the business owner or manager the right to claim any pet bias as part of his religion. If nothing else, it’s instructive to see how innocuous-seeming language can be anything but.

By Bill Black, the author of The Best Way to Rob a Bank is to Own One and an associate professor of economics and law at the University of Missouri-Kansas City. Jointly published with New Economic Perspectives

Sodomy, of course, was once referred to as the crime that dare not speak its name because the combination of fear and hate of straight males for gays was so intense that it was barbaric and even murderous. It is a measure of how much things have changed that the haters now know that they dare not speak their hate. They also know that they are losing. The vast majority of gay Americans live in States with marriage equality and conservatives expect to that the Supreme Court will soon strike down as unconstitutional bans on marriage equality in the Supreme Court. Some equality advocates are warning that the desperate measures like Indiana’s new law designed to authorize merchants to discriminate against gays are similar to the relatively successful strategy to attack abortion rights. They are right to warn about the need keep working, but the LBGT rights are not analogous to reproductive rights. I will discuss only one reason – business. The paradox is that a law purportedly vital to protect the right of merchants to discriminate against gays is the last thing that merchants want. Gays make very good customers. They have income and they buy goods and services. Merchants want to sell goods.

Businesses also need employees. All other things being held constant, businesses prefer happy employees who will stay with the firm and become ever more efficient. Employees need to buy goods and services and have the income to do so. Employees like to eat at restaurants periodically and they prefer the experience to be pleasant. The owners and officers of firms often take colleagues and clients to restaurants. The purpose of doing so is for everyone involved to have a wonderful experience.

So here are two variants of the nightmare a business owner has relative to the Indiana law. Four employees go out for lunch. The waitress come over and points to the declaratory judgment of an Indiana justice of the peace proudly displayed on the wall. It declares that the restaurant owner has the right under the Indiana Religious Freedom Restoration Act to deny service to those who are LGBT or support LGBT rights. The waitress informs one of the employees he must leave the restaurant because he has what she believes to be gay mannerisms.

The second variant is that the owner of the firm takes an important client visiting from Illinois out to dinner. The owner of the restaurant approaches the table and asks the client (who is straight) to leave because they do not serve sodomites.

There are, of course, innumerable variants on this theme. They all offer extreme embarrassment followed by rage by the victims of the discrimination.

The Indiana Religious Freedom Restoration Act was Drafted to be Extreme

Sec. 5. As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

“Religion” is undefined. The goal of Section 5 is to take the most extreme position possible. “Religion” is whatever the individual decides. The precepts of that religion are whatever the individual decides. Those precepts do not have to bear any relationship to the actual precepts of any organized religion. The precept does not have to be one that a believer is required to follow, indeed, it can be a view that the leaders of the faith reject. There is no requirement that the “belief” be sincere or that there be any record of the individual having held such a belief.

The Indiana Act does not mention people who are LGBT. It is far broader than that. Any person in Indiana can invent a “religious” “belief.” That “belief” could be that one should not associate with, touch, speak to, see, or serve any characteristic one can imagine – race, color, gender, nationality, age, eye-color, progressives, or the left-handed. The focus on LGBT is because the purpose of the law is to encourage discrimination against LGBT and because Indiana has no law barring discrimination against LGBT.

The law’s ultra-vague standard and the ability of a person in Indiana to sue before any judge they choose seeking a judicial declaration that they have a right to deny service to someone because he or she was LGBT or a Muslim encourages judge shopping. Finding a justice of the peace who is a proud homophobe in rural Indiana should be a piece of cake.

Section 9 of the law provides that the businessman can seek the declaratory judgment and even an injunction without normal “standing,” i.e., demonstrating “injury in fact.”

Sec. 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.

A sympathetic judge could easily find that any homophobic Indiana merchant is “likely” to be faced with requests for goods and services from LGBT customers. The merchant will testify that his or her “religious” precepts would be injured by serving LGBT customers. That will establish in the mind of a sympathetic judge proof that the merchant’s “religion” will “likely” be “substantially burdened” by the prospective customers and provide a basis for a declaratory judgment that the merchant has a right under the Act to deny services to customers he or she thinks may be LGBT.

The prospective LGBT customers have zero rights in this judicial process. They get no notice of the lawsuit and no right to argue before the court to protect their rights. If the merchant seeks a declaratory judgment that he or she has a right to deny services to LGBT, it is not clear that there is any “relevant governmental entity” that has a right to intervene. There is provision in the Act that requires the merchant or the judge to notify any governmental entity of the lawsuit. The Governor has directed his Attorney General to oppose any constitutional protections for LGBT, so even if Indiana were to intervene it would likely do so to support the request for a declaratory judgment.

The opportunities for merchants and senior Republican government officials in Indiana to stage a friendly suit in which the government of Indiana consents to the court issuing an injunction against the State forbidding it to enforce laws such as equal housing against a landlord. India’s officials want to be prohibited from protecting LGBT rights. LGBT citizens of Indiana have no right under the Act to intervene and become a party to such a suit.

Pence: Freedom of Religion Ends if We Can’t Discriminate Against Gays

It is legal in Indiana to discriminate against LGBT. Employers can fire LGBT workers on the “grounds” that they are LGBT with impunity. Indiana Governor Mike Pence has long made clear his desire to ensure that no laws restrict the ability to discriminate against gays. Indeed, in Penceland the “right” to discriminate against gays is a fundamental aspect of First Amendment “free expression” rights.

The problem here is that by extending the reach of federal law to cover sexual orientation, employment discrimination protections, in effect, can wage war on the free exercise of religion in the workplace.

Pence claims that the fact that so many Americans oppose discrimination against gays proves that they – not the people that discriminate against gays – are the intolerant.

Pence addressed the critics Sunday, saying: “This avalanche of intolerance that’s been poured on our state is just outrageous.” Asked if he would be willing to add sexual orientation to the list of characteristics against which discrimination is illegal, he said, “I will not push for that. That’s not on my agenda, and that’s not been an objective of the people of the state of Indiana.”

Pence has emphasized in the last several days that he does not intend to provide any legal protections to LGBT against any form of discrimination.

Why Governor Pence Won’t Answer Questions About the Act Allowing Discrimination

Pence had a disastrous appearance on ABC in which he refused to answer the most basic question about the Act – six times – would it allow a merchant to refuse services to LGBT. He did not answer the questions because he knew that if he did so he would have to admit that the Act was designed to allow merchants to discriminate against LGBT – and he knew that this was no longer acceptable among the majority of Americans and causes most young conservatives to roll their eyes about their parents’ obsession with gay bashing.

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  1. Foppe

    One of our previous ruling coalitions considered proposing an update to the (ineffective since the late 1960s) blasphemy law, which would have allowed any institution with members to sue people for ‘blasphemous’ speech, including sports clubs etc. It didn’t get very far, but I was still surprised by the idiocy of the proposal (made by a Christian Democrat who is considered quite intelligent).

  2. Blurtman

    So can Sharia law adherents now apply their beliefs to others? And what does this mean for shoplifters?

    1. Eduardo Quince

      And what does it mean for hotel guests who engage in fornication/gay sex in the privacy of their hotel rooms? Do Sharia-law-abiding hoteliers have the right to put such infidel guests’ genitals on the chopping block?

    2. hunkerdown

      Sounds like we should have an all-hands meeting of all the Wall Street bankers there and turn the Muslim Dominionists loose on them.

  3. Sluggeaux

    Terrific analysis by Professor Black. The completely subjective definition of “exercise of religion” is patently discriminatory– and ludicrous.

    But hey, I was raised in a religious tradition that referenced 10 commandments, brought down from a mountain by some guy who looked a lot like Charlton Heston — or maybe Christian Bale. One of them says:

    You shall not covet your neighbor’s house. You shall not covet your neighbor’s wife, or his manservant or maidservant, his ox or donkey, or anything that belongs to your neighbor.

    Does that mean that I can discriminate against Banksters in Indiana? Then there’s this other one about adultery, but no politician has ever had an issue with that

    1. guest

      I am a bit baffled by all this. Is there no legally binding definition, via law or jurisprudence, of what is a religion in the USA?

      1. Sluggeaux

        Upon further review, I have found that the ludicrous definition in the Indiana law actually tracks the Federal law recently interpreted by our Supreme Court in Burwell vs. Hobby Lobby, Inc.. The Indiana law appears to be a frontal assault on Justice Anthony Kennedy’s “split the baby” concurring opinion that decided Hobby Lobby. This definition of “religious exercise” is found at 42 USC 2000cc-5 (7) (A):

        The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

        This law was enacted as part of the “Religious Land Use and Institutionalized Persons Act of 2000” which was sponsored by those pillars of religion Ted Kennedy and Orrin Hatch and signed into law by that notorious commandment-breaker (“You shall not commit adultery.;” “You shall not bear false witness against your neighbor;” etc.) William Jefferson Clinton — in the same year that he signed the “Commodity Futures Modernization Act of 2000.” You know, “It depends upon what the meaning of the word ‘is’ is.”

        1. Jim Haygood

          President Clinton, during his Saturday radio address to the nation, said: “In our country during the ’50s and ’60s, black churches were burned to intimidate civil rights workers. I have vivid and painful memories of black churches being burned in my own state when I was a child.”

          Former Arkansas State Senator Jerry Jewell, who served as a President of the State NAACP from 1959-1973. told the Arkansas Gazette on Monday “I’ve never known of a black church being burned in Arkansas.”

          The president said Monday that he could not recall any fires at black churches in Arkansas. Now he says he remembers fires at “black community buildings” in Arkansas.

          Well, ‘fires’ anyhow. Maybe they was outdoors or sumpin’ …

          1. Lambert Strether

            That’s OK; I mean, catching Obama in some form of insincerity is shooting fish in a barrel anyhow. We can swap in the mobs trying to prevent black kids from enrolling in Central High School. Interestingly, some of the same people who worked for that lost cause went on to take funding from Richard Mellon Scaife for ginning up scandals about Clinton. The past isn’t past, is it?

        2. Garrett Pace

          “What is a religion” questions will give us fits until we realize that religion is what we practice all the time, it’s not a place you sit once a week – it’s a set of values that govern your behavior continually.

          Thus the problem with claiming “but religion!” for anything a person wants to do. First off, it’s TRUE, insofar as you are putting your values into practice.

          But we have this weird idea that a Native American smoking peyote is “religious” but a bakehead getting high in his basement is not. Or there’s some difference between a biker pushing a gay out of a bar and a wedding cake designer doing the same thing in his shop, only politely. One situation might be more refined than the other, and the individuals might have more dignified motivations, but how is a law supposed to make such distinctions?

          Accommodating the value systems of 300 million people is an onerous task, particularly when decisions can have all sorts of consequences on others, good and ill. Appropriating the lingering respectability of religious belief systems is a useful shortcut, but it leads to some funny distortions in social and political life.

          1. hunkerdown

            Recall that one of the manipulative lines from the 2012 LGBT-Democrats campaign equated marriage with love. To them, I say: if you think you need to ask the State for permission and discounts to love someone, YOU ARE THE PROBLEM.

            If we were not a nation of proselytic, conformist infants playing “Mother May I” we could easily accommodate varying cultures. We simply have decided that we’d rather sell than communicate, indoctrinate than teach, submit than think, construct the world to accommodate our precious fantasies than learn to live within natural limits. How many years and cultures must we look over to finally figure out that evangelism and peace cannot coexist among the societies of H. sapiens?

        3. Propertius

          Upon further review, I have found that the ludicrous definition in the Indiana law actually tracks the Federal law

          As well as the identical language in similar state laws already enacted in Connecticut, Pennsylvania, and several other states. For some reason, this law is an outrage when enacted in Indiana, but it’s a big nothing-burger when it has been in effect in Connecticut and Pennsylvania for years. Why is that? Are bigots in the Northeast somehow less nefarious than bigots in “flyover country”?

          I think the law is ridiculous and is a shameless effort to appease a few intolerant jerks, but it’s also written to be pretty much ineffectual. The law makes exceptions for “compelling state interests”, which the courts have already held ending discrimination to be, and Federal civil rights law trumps state law thanks to the Supremacy Clause (and the Fourteenth Amendment, of course).

          1. Arizona Roadrunner

            CT has a separate law prohibiting discrimination based on sexual preference. Indiana does not have such a law.

      2. NotTimothyGeithner

        The U.S. has no government sanctioned religious test for office holders and can’t interfere with the “free” exercise of religion. “Free” is the key word. The laws of a religion can’t violate the legitimate laws of society, and society’s laws can’t coerce religious behavior as long as it’s not violating “free exercise.” I can’t keep a unchanged of mole women underground out of fear of a false apocalypse because it’s coerced. At the same time, ministers don’t need to pitch government propaganda.

        I should add the Founders (evidence indicates they could read) likely assumed the state parliaments and then the Constitutional structures assumed/held the powers of an imperator like Henry VIII claimed when he claimed supremacy over the church in England as the voice of all the people and thus the voice of God. What isn’t free, governments can regulate. Your local mayor can’t stop a religious meeting, but the fire chief can shut down a church for violating the fire code.

  4. Louis

    I don’t doubt that there some people (and businesses) that are so hostile towards gays that they, if given the choice, would refuse to serve gays and lesbians, no matter what the costs.

    However, the more forward thinking businesses have realized that doing the right thing—treating gays and lesbians fairly—is actually good business. No one is going to buy products or services from a company that hates them.

    Indiana, and any other state that has (or plans to) enacted such a law, is shooting themselves in the foot.

  5. LaRuse

    I am all for bigoted business owners actively shouting their bigotry to the world. Makes it MUCH easier to know where not to spend my dollars. Haters can hate themselves right out of business that way.
    Now let the Unintended Consequences begin.

    1. EoinW

      Freedom of choice? Yikes! A world without government interference or special interests groups imposing their values on others? But this is the 21st century. We’re not grown up enough to make such decisions on our own.

  6. craazyboy

    If you ask me, Hoosier sounds kinda gay, so I don’t how you can tell just by looking. Unless, they were “flaming” in public, or hitting on same sex straight patrons at the counter or the restrooms. hahaha.

  7. Chris

    Pence has said a now said close to a dozen times “This law does not give anyone the right to refuse services to anyone”

    1. Pepe

      Pence has said a now said close to a dozen times “This law does not give anyone the right to refuse services to anyone”

      precatory language

  8. John

    The Federal law was signed in 1993 the same year that Scientology won its tax exemption from the IRS.
    I believe they are a hidden force behind this law.

  9. Peter Pan

    I suppose this law includes pharmacies. If so, then refusal to fulfill Rx of birth control, plan B or even condoms if a particular pharmacist has a religious dilemma/objection in regard to this matter is a high probability even though the pharmacy does not.

    A boycott of discriminatory businesses, businesses that hire discriminatory employees, or any and all businesses just because they reside in Indiana, is likely to lead to an economic down turn within Indiana. It will be interesting to see how long it takes for Indiana to seek medical treatment for the gunshot wound to its’ foot.

    1. BEast

      You bet it includes pharmacies. Pharmacists are allowed to refuse to fill legal prescriptions they say go against their beliefs in states with these laws. Somehow, their beliefs always seem to be about what women can do — they never refuse to fill Viagra prescriptions for unmarried or widowed men.

      1. Katniss Everdeen

        It also includes HOSPITALS (catholic) that don’t “believe” in abortion. No therapeutic abortions, tubal ligations, no family planning, no Rxs for birth control or morning after pills and precious little in the way of aid and comfort to victims of rape or incest.

        I lived in northwest Indiana for eight years, and Dyer, IN is such a place. One hospital serving the immediate area–Catholic–which has and strictly enforces these “religious freedoms.”

        If you saw the photo of Pence’s private signing ceremony for this law, you saw all the nuns–in full regalia–clustered around.

        Given that Pence does not seem to be the sharpest tool in the forward-looking shed, I wonder how his repeated pronouncements that this law will not permit “any business” to refuse “service” to anyone will play in this arena.

  10. Rosario

    I’m not a lawyer, so I can’t speak by any authority, but this law is paradoxical and unenforceable. If a “victim’s” claim to injury is rooted in their belief (no matter whether it is methodical/universal or non-methodical/personal) then could a person accused of being LGBT, Muslim, etc. claim they are not-so for the sake of proving the “victim” wrong, even if they are? Again, it is all a matter of what people think/feel right? Furthermore, this “law” (if we dare call it) implies the capacity for individuals to effectively point fingers and shout “witch!”. It is nonsense. Not only does it advocate for legalized, personalized prejudice, it empowers it. What of an “effeminate male” being called gay while they are not gay, or an “Arab looking” bearded male accused of being Muslim while they are atheist? It is boundless. This is not a law, it is language advocating bigotry, even further, it is antithetical to law by proving to be non-methodical in its potential application and enforcement.

  11. Swedish Lex

    Indiana is currently getting more attention and bad PR than in a long time. Globally.
    I watched that pathetic Governor being interviewed although I could not stand it until the end.
    This law will eventually become a great asset for gays and atheists alike.

  12. Antifa

    The state legislators dumb enough to pass such laws, knowing that the Supreme Court is going to affirm that marriage equality is the Constitutional standard in June, are not going to give up their “state’s rats” even then. Such as Texas declaring in their law that any County Clerk who issues a marriage license to gays will lose their job and their pension, the Supreme Court’s ruling be damned.

    Well, Texas . . . one does not get to ignore Supreme Court decisions without having first seceded from the Union, which you will not get to do, either.

    So any County Clerks in Texas who, after the June SCOTUS decision, defy Texas law to follow Federal Law will have excellent standing to sue in Federal Court, and they will win, and Texas will get to pay them collectively many hundreds of millions of dollars PLUS their jobs will be reinstated, PLUS their pensions — if they still feel the urge to go to work each morning after winning “the new Texas lottery.”

    I recall vividly, decades ago, when hateful Southerners tried to block black students from entering public schools and colleges, in defiance of Federal discrimination law. The National Guard showed up with bayonets fixed, and the black students went to school. The Federal government will enforce its decisions.

    Right now, in Indiana, Arkansas, and Texas businesses are meeting with some smart lawyers to discuss individual or class-action lawsuits in Federal court against their state for irreparably harming their reputation, and ability to do business nationally and internationally. They have standing and they will have no problem winning their lawsuits and receiving just compensation.

    So what could possess any state’s legislature to effectively decide to chase established businesses out of their state, chase away business and tourism from out of state and from around the world, and devote hundreds of millions of state dollars to settling an endless string of Federal discrimination lawsuits year after year after year — until they are finally forced to give up their hate law, possibly at gunpoint?

    Hate, fear, stupidity, and narcissism.

    1. hunkerdown

      Probably not. I know the Vichy left likes to commit the fundamental attribution error to avoid the truth and preen their bourgeois image, but I suspect that, in reality, like most of what is labeled as culture war, this is really chaff to keep people in the streets from talking about money and class. The Vichy left can’t return the ball the Sodomite (in the sense of inhospitability) right doesn’t serve.

      Keep your eyes on fast track — if that slips by because we’ve been whining about LGBTs not being able to buy other people just like the straight richies, then they’re traitors to queers, who want nothing of their smarm.

    2. Demeter

      I’m okay with Texas seceding from the US…I’ll even form a support group for the other 49 states, and call it:

      “Here’s your hat, what’s your hurry?”

      I bet we could start something really big!

  13. Malmo

    Please supply a list of all gay persons who have been harmed by RFRA laws? And the Indiana law is simply consistent with the Holder Justice Department’s view regarding First Amendment legal standing. It’s also consistent with federal court case law and thus some out their legislation. It’s merely a starting point to balance religious liberty with competing claims. It in no way gives standing to someone claiming infringement on said religious liberty. Hypothetical cases of discrimination down the road being fronted here don’t count. What counts is the 25 odd year history of case law and RFRA enactments, and the virtually non existent invoking against gay citizens.

    . ..And oh, it’s very amusing to see some here singing the praises of big business when said big business is goring made up from whole cloth supposed intolerant religious oxes. Google hypocrisy.

    1. Katniss Everdeen

      I have yet to hear an example of the denial of “religious freedom” this, or any other RFRA law, is intended to address and prevent. Can you provide one?

      As for “harm,” what “harm” has befallen these demanders of “religious freedom” as a result of acknowledging the rights of LGBT? No one is even attempting to usurp their right to condemn homosexuals to eternal damnation or demand that “god” smite them with lightening bolts.

      And this is the only “freedom” afforded the “religious” in a SECULAR society such as the US is SUPPOSED to be. There is no “right” to dictate the behavior of others because it offends one’s “religious beliefs.”

      That’s Taliban doctrine.

    2. Jonf

      Why do you think this is related to religion at all? As Bill Black noted you can invent your own religion for whatever rule you want. That makes this law one that permits discrimination against who ever you please. And cases down the road do count. We should not permit laws that allow discrimination. Mike Pence and his merry hypocrites have fashioned a law not quite like the others and figured no one would notice. Our society has grown beyond this so called religious freedom. Next thing you know we will burn witches again.

    3. different clue

      Please supply a list of all RFRA laws that are written exactly the way this one is in order to achieve exactly what Bill Black analyzes this one as being engineered to achieve.

      1. Malmo

        Bill Black is simply wrong about what he claims the bill will achieve. His speculations have not been born out over RFRA’s 20 plus year history, nor is there any reason to believe they will be going forward.

        The greatest amount of hate I’m reading here is aimed at Christians. The aspersions cast their way are repulsive.

        Indiana has had no more demonstrable history of so called anti gay discrimination than any other state. And the only phobia I’m witnessing in this ridiculous overreaction Christianphobia. It certainly demonstrates how ill informed feeding frenzies manifest themselves, and breeds the intolerance the left claims it so loathes.

        Guy Benson says it succinctly when it comes to the knee-jerk reaction to the Indian law:

        “..Almost all of this hyperventilating is rooted in some brew of abject ignorance, mindless alarmism, and ostentatious moral preening. The latter, anti-intellectual phenomenon is especially widespread: “Look at me, I’m a good person because I’m outraged about this terrible law, about which I know very little. Those who disagree with me are exposing themselves as bad people who support discrimination against gay people, which offends my tolerant and progressive sensibilities, of which I’m reminding everyone right now…”

        1. savedbyirony

          Wow, that’s an incredibly impressive quote that manages to say absolutely nothing what-so-ever to address any of Bill Blacks points.

        2. different clue

          Well, okay . . . but . . . could you supply a list of the other RFRA laws that have been written exactly like Indiana’s new law, and would therefor be mis-analyzed by Bill Black in exactly the same way this law has been mis-analyzed by Bill Black?

          And is there a counter-analysis showing in detail how Bill Black has mis-analyzed Indiana’ particular new law . . . the law in question right here?

        3. Rosario

          I’ve been reading Naked Capitalism for a while now, and at times I strongly disagree with the economic, political, and philosophical content conveyed, but I cannot think of a single time there was anything remotely Anti-Christian or Christian-phobic. No one is attacking Christians. Here is the issue. If there is a sign that any law is providing a potential protective legal framework for bigotry or discrimination that is a potential problem no matter the religious views of the author in question.

        4. Yves Smith Post author

          This is a country where Christianity is clearly, overwhelmingly the majority religion. To carry on as if its followers are a persecuted minority is abjectly false.

          And the criticism here is aainst bigotry, not religion. Bigots are making a pathetic use of religion to justify THEIR hatred.

          1. Bob S

            So a jewish baker refusing to make a cake for the wedding of a nazi youth couple is a “PATHETIC USE OF THEIR RELIGION?” Examples abound: pro choice christian and antiabortionists, black christian and kkk.

            1. Yves Smith Post author

              Oh come on. A Nazi couple would NEVER patronize a Jewish baker knowingly. In fact, they’d be relieved if one they did not know was Jewish refused their business.

        5. BondsOfSteel

          Actually…. as a Christian, I’m offended that all this hate is being directed through the name of Christianity. This law has nothing to do with the Christian religion and everything to do with bigotry and hate.

          What would Jesus do? He wouldn’t refuse to server sinners.We are all sinners after all.

          People are just using religion as an excuse to hate. Religion really is the last refuge of scoundrels.

          1. The Heretic

            How about if it was a Christian doctor, compelled by the hospital he works at, to perform abortions? Especially when there are other doctors on staff who could perform the abortion, and especially in cases of late term abortions?

            FYI… I do support a woman’s right to have abortions, especially in cases of rape or incest. However late term abortions are an abomination, and I do view abortion as killing of innocent human life. Hence, where the baby-in- utero can survive and become viable, late term abortion is a horror and should be banned. Btw, I also support extensive subsidies for all children and working parents also.

            1. Yves Smith Post author

              That is utterly ridiculous. Doctors specialize in certain procedures. No one can “make” a doctor do appendectomies either.

        6. Demeter

          Nobody’s talking about Christians!

          I had a pretty good indoctrination in Christianity, and frankly, none of this is Christian at all.

    4. Rosario

      Read this:

      Then this:

      Note the differences clearly then critique. Legal precedent is writ with new legislation as well. In response to your stating there has been a supposed absence of discrimination against LGBT post RFRA-1993 (as a result of said law). a) Ultimately this is a red herring because it deflects from the Indiana version in question but anyway, provide evidence for your claims or at least note that the motivation for the original federal law was for the protection of the religious rights of Native Americans (similar to Affirmative Action, protection is needed for an oppressed minority, not so for a national Christian majority) b) A claim to 20 years of no discrimination does not imply that this law does not set a precedent itself as it is particular to Indiana and its political climate (yet again, the difference between 93 law and Indiana’s state law) c) Maybe discrimination against LGBT people (as recognized legally) wasn’t such a “problem” in the past, just 10 years ago really, because they were silenced by the moral majority (thus the reason why this law is problematic, particularly as it relates the its authors and supporters). There weren’t a great deal of Black Americans litigating against discrimination in the Jim Crow South (or North for that matter) because they would have never had (or been given) a platform. The legal barriers are put up once the majority feels threatened. They feel threatened, thus this monstrous mutation of the 1993 RFRA law that effectively gives credence to any “well intentioned” bigot.

    5. sharonsj

      Malmo, do your own effing research and stop asking others to do it for you. I just read about a business that turned away a gay couple wanting that location for a wedding (one of many, I might add, including two in my home state of Pennsylvania). The Indiana law is not the same as similar laws passed elsewhere, and therefore opens the door to such discrimination. This crap is going to keep the lawyers very busy.

      On another front, the courts are deciding what is a religion. They just turned down a “sun-worshipping atheist” based on their own made-up list of what constitutes religion. Since I believe in alien astronauts, I’m probably screwed, as are followers of the Flying Spaghetti Monster.

      1. wombatpm

        sharonsj, the non-believers will be washed away when the FSM brings forth the Great Colander and initiates the Rinsing.

  14. Sally

    As a minority, I go where I am welcomed, and stay away from places that I’m not welcome. You guys hate religion and people that believe in God. Fine. Don’t go to church! As I recall restaurants had the right to turn away patrons for “no shirt, no shoes, no service”, and I believe I still see signs that say, we reserve the right to refuse service to anyone — I don’t think it’s used much. Maybe they kick drunks out of their bar, or ask people that don’t bathe to leave their restaurant. I like how you say, “they don’t DARE.” I’ve been in gay owned businesses plenty of times, and if there are gay people in their store, they get waited on first. Am I crying about it? No. I need that product, I wait and buy it. As with any other business, if I’m not treated well, I just don’t go back. I think a person can exhaust themselves fighting these battles. I think you have won. More than one gay person I know has told me that they only patronize gay-owned businesses — should a law force them to go elsewhere? I don’t think so. Why can’t they just go wherever they want?

  15. Jonf

    If you don’t have a shirt on or you need a bath or you are drunk, you are asked to leave. But those are easily fixed by putting on a shirt, etc. Changing one’s race or sexual orientation is not possible. And as Black noted this law enables one to invent his own religion and to enforce his beliefs. So if you don’t want gays working for you or eating at your restaurant you can stop it. And you could be an atheist. We should demand more restrictions than that if we believe in a free and open society. Discrimination with no bounds is not acceptable.

    1. hunkerdown

      If you’ve lost NASCAR, you’ve lost. This is tantamount to Times Square moving out of NY because of the NYPD — commerce shall prevail. Obesa cantavit.

      1. savedbyirony

        Well it’s not quite up there with the NFL actually coming-out with criticism, that’s were the big sports bucks are (i’ll give Jim Irsey credit for speaking up), but then Michael Sam could have said “hypocrits!” But NASCAR -that caught my eye and says something about changing public acceptance.

        1. skippy

          Nascar got sue for discrimination a few years ago by a black female employee. She won. So I don’t think Nascar is trying to go this route again.

          Skippy…. missed your comment before posting mine….

          1. savedbyirony

            Good for her! can’t imagine the strength it would to take to work in that community as a woman of color. i know a few guys who are affiliated with NASCAR and plenty of racing fans and though it’s hardly scientific survey, it wouldn’t surprise me at all to find more racism and misogyny in the culture than homophobia.

          2. savedbyirony

            Good for her! Hard to imagine the courage it would take to work in that environment if your female and black. i know a few people who work in NASCAR racing and plenty of fans, and though i have no proper data to back me up i wouldn’t be at all surprised if the culture is actually far more likely to display racism and misogyny than homophobia.

  16. Katniss Everdeen

    Meanwhile, here in Florida, a state that has a similar law protecting “religious freedom,” a woman “ is facing arson charges after investigators said she burned religious objects in her rental home.:

    She “told investigators she was trying to get demons out of her house and was ” ‘releasing the evil spirits.’ “

    Some religions are, apparently, more “free” than others.

  17. Danny

    The Indiana right-to-discriminate law doesn’t change the fact that same sex marriage -its actual target – is already legal in Indiana (so says the 7th circuit). Beyond pandering to a particular group, it’ll give some bigoted business owners (Hobby Lobby?) a chance to grasp at straws while attempting – and failing – to deny benefits to gay spouses on religious grounds.

  18. MarkJ

    Make no mistake about how extreme our elected officials are in Indiana. We (local environmental groups) failed in preventing our legislature from passing a bill that included language similar to that of the secretly negotiated Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP) trade pacts allowing “lost revenues” to be billed and collected from Hoosier energy consumers.

    Indiana was one of the first states to enact a restrictive voter ID law and leads the country in restricting women’s rights. Also, our last governor was one of the first to abolish negotiating with public sector workers represented by a union.

    Of course, none of our elected officials championed or campaigned on a promise to engage in legislative excess before the elections last November. And there is still ample opportunity for our legislature to outdo even this most recent extreme civil rights stripping exercise as the Indiana legislative session does not end until April 29, 2015. Many times the legislature has saved voting on the most extreme laws just before they adjourn for the year.

    Indiana should serve as a warning of what will happen when the same political party is elected to represent all functions of state and federal government.

  19. TG

    Ah yes. Gay marriage. So shiny. So mesmerizing.

    Don’t worry about that banker over there stealing your pension – THIS POLITICIAN IS AGAINST GAY MARRIAGE!

    Don’t worry about that healthcare corporation that’s going to scam you out of your life savings – THIS POLITICIAN IS FOR GAY MARRIAGE!

    This is a manufactured issue. Nobody would be doing a darned thing about homosexuals – pro or anti – if it wasn’t such a surefire way to distract the masses.

    Politicians that oppose the mass theft of public funds by the oligarchs face powerful opposition. But politicians need SOMETHING to differentiate themselves, I mean, like Pepsi and Coke, right? So they gravitate to issues that the rich could care less about.

    My own personal vow: I will vote for ANYONE who will stand up for my interests, be they a bible-thumping preacher or a transvestite nun on roller skates. And if more people had this approach to politics, pretty soon this whole LGBT thing would die a quiet political death, consenting adults could do any darn thing they please and that would be that.

    1. Lambert Strether

      It’s a real issue. At the same time, it’s a useful issue. The best way to distract from a huge injustice is to point to a smaller one — preferably one that is tribally charged (as this issue is to both sides).

  20. Paul Tioxon

    The precious rule of law. One of the pillars of civil society, so we know what to expect from how we behave towards one another. Who would have thought that the realization from social science that our lives are complete social fictions that we make up, bound by symbols of language would lead to the uselessness of adhering to laws conjured up from the opinions of a passing power network of individuals whose temporary occupation of the institutions of authority produce little more than bromides from a British King’s version of a bible cult. Laws used to have the authority of the important governing principles between people as we lived our everyday lives. Not killing one another, not stealing from one another, not trying to ruin a marriage relationship by sexually preying on a wife or spouse. Now, any assemblage of words can be concocted to legislate some sort of law to govern how we relate to the world based on our inner beliefs and concepts not shared by the world we must live in and the people who we must relate to.

    This carefully constructed law of man to promote the law of someone’s god is running into the problem of the ineffable inner faith beyond understanding or perception of the 5 senses. So, how are we, outside of the inner realm of personal belief to know that we are transgressing by simply walking into any place of business for anything at all? We don’t. We can not have any society where the social relationship can be based on invisible, unknowable rules and regulations of religious beliefs and dogmas that can be invoked at any instance without any warning beyond the everyday expectations of what we normally expect from the people we live and work with. At any moment, someone can invoke being moved by the religious experience that there is someone who makes them break communion with their sacred relationships. How am I to know when I only want a hamburger, or gas and directions or fill a prescriptions at a pharmacy?

    The inner experience of religion and the secular laws of humanity typically do not ask you to cross against well known and generally accepted moral codes. The provocateurs of the conservative religious right who hold political offices continually promote a social agenda as an act of political resistance to a secular world they are at odds with. This is a long standing problem, that can be found in each of the original state constitutions of the founding 13 states as they formed the United States of America. With the exception of Pennsylvania, every other state’s constitution required a Christian believer to hold office, or even only a Protestant, Christian being too broad. William Penn only required an acknowledgement in some sort of creator, of no particular denomination, Catholic or Protestant, leaving only atheists outside of the political arena.

    The long standing problems with laws that bind liberty to males, rich males, white males, Christian or Protestants, have been struck down, legally through political struggles and by a Civil War where we had to kill one another to resolve the problem across the nation. But, the laws have been struck down. This pathetic attempt by religious believers who have been promised a political place at the decision making table do not understand that what they are being offered as power, control over their lives by promoting their personal religious denominational beliefs into the the secular rule of law in the local, state or national level, is not power at all. Rather than achieving material benefits for themselves to live a life free from hunger, homelessness, free from fear or want of commonly accepted everyday necessities, they have pursued to elevate the 10 commandments and various random transgressions found in their sacred text into state law.

    That the law of god in heaven becomes the law of the USA on earth is a political victory. That this is power. They have been tricked and deceived to vote for the war party if they get to persecute various forms of sinful behavior, especially if it is sexually defined, like abortion, pornography, homosexuality. Some burn books and rock and roll records of the devil, some go further and bomb abortion clinics and kill doctors and some even beat to death any gay person if they can and now, they pass laws against sin and pretend they are upholding religious liberty. They will not be doing that anymore and have the rest of the world nod and agree and go along to get along. I am sick of eating their shit and so are the majority of Americans. I would not even know many of the particulars of what is a sin or what they denounce in the privacy of their churches except that they now take their inner beliefs and write them into the public campaign slogans of politicians who run for office. And by making their dogmas political attacks against opponents for elective office, the whole world is forced to deal with their personal religious beliefs, instead of the public policy issues that affect everyone regardless of beliefs.

  21. H. Alexander Ivey

    I’m sorry but I am too upset to read down through the comments to see if any one has made this point or not. So apologies if someone already has…

    ARE YOU GUYS (and with all due respect, ladies) CRAZY??!! If y’all think that a merchant will not serve a gay person because it would be against said merchant’s economic interest, have I got a bridge down South for you! You must either have forgotten the 1950s and early 1960s in the Deep South, or you were asleep in your history classes. Personal prejudice overrules making money every time, guys, especially when said merchant believes their community supports them. And having a law, written out and enforced, is very much a community support!

    I left my “beloved” Deep South years ago, never expecting to see “Color” and “Whites Only” signs again. Well, let me be the first to say, “I told you so!”. If people let their leaders pass these kinds of laws, you will be in the Deep South again, ASAP. No if, ands, or buts. But now the Deep South will not only be below, it will be above the Mason-Dixon line.

  22. nat scientist

    Professor Black unmasks the inchoate conversion of publicly-licensed businesses into private clubs with constitutionally protected freedom of expression and no consequences for privately regulating the public they pretend to serve. As such it presents a fraud as evidenced by the body language of Governor Pence at the podium, writhing in the pain pierced by shafts of light blowing through the holes in his facade of willful blindness.

  23. B. Examiner

    Some equality advocates are warning that the desperate measures like Indiana’s new law designed to authorize merchants to discriminate against gays Bill Black

    Question? How will the merchants know who to discriminate against?

    1. Steven Greenberg

      The beauty of the law is that people don’t have to know who to discriminate against. The history shows that it is enough for someone to think you are gay or exhibit gay mannerisms in order for them to order you out of their establishment. If you argue about it, they can just say that it is against their religion to serve anybody who argues with them.

      Quakers might refuse to serve anyone who raises their voice.

      Jews might refuse to serve Christians who make claims about someone being a messiah that the Jews do not believe as being the Messiah.

      One Christian sect might refuse to serve another if they suspect that that person has practices that that sect does not believe in.

      Muslims could refuse to serve infidels.

      Hindus could refuse to serve people who have meat on their breath.

      Is there a god that is creating another punishment like the one for building the Tower of Babble? Or is that Tower of Babel? Pretty soon, nobody in this country will be talking to anybody else around them.

  24. Stephen A. Meigs

    As someone who considers sodomy an evil addiction akin to an enslaving rape drug, I would not much be concerned about not being allowed to not serve, not hire, or fire people who hold opposing viewpoints about sodomy, were it not the case that prosodomy types, exhibiting the bullyishness typical of sodomizers, very much believe in being allowed to fire and not hire those who oppose them. (They don’t care so much about being able to not serve people, because people against sodomy aren’t easily embarrassed like those who are engaging in stuff that is inherently embarrassing–sodomizers are hurt when their sodomized victims have occasion, as upon encountering someone who doesn’t want to design a wedding cake for them, to feel the embarrassment natural in such a condition, because it might occasion the manumission of the victims they enslave with sodomy. I don’t think people not into sodomy would much want people to make wedding cakes for them who don’t want to make them. Dishonor comes from bad behavior rather than the opinion of others–it was that way when the South went to war in the name of honor so their white trash could glorify the enslavement from sodomy they inflicted on their womenfolk by glorifying racial slavery, it is that way now with people trying to force people to make wedding cakes for weddings they don’t believe in, and it is that way now when ISIS slaughters people in the name of the honor of Islam so they can inflict rape and forcible sodomy upon people.) Look at Mozilla’s official statement after its CEO, Brendan Eich, was pressured to resign after it having been disclosed that several years ago he had donated $1,000 to support Prop 8:

    We have employees with a wide diversity of views. Our culture of openness extends to encouraging staff and community to share their beliefs and opinions in public. This is meant to distinguish Mozilla from most organizations and hold us to a higher standard. But this time we failed to listen, to engage, and to be guided by our community.

    In other words, Mozilla, a technical company, essentially apologized for not making belief in the innocuousness of sodomy a litmus test in deciding whom to hire as CEO. There should be no law or legal custom that gives employers more right to punish people for pro-sodomy views than for anti-sodomy views, or there is no freedom of speech about one of the matters which it is most important to have free speech about. People abridging free speech, like the antebellum south outlawing abolitionist literature, often do so because they know their own views are sufficiently incorrect as to require additional advantages, notwithstanding the people as a whole need truth.

    Conservatives are sinful to argue that unselfishness from love, e.g., concern for the poor, is unselfishness from stupidity, but they often tend to do it because many of them need to justify their selfishness. Liberals, on the other hand, are sinful to argue that unselfishness from stupidity induced by sodomy addiction is unselfishness from love, but often they tend to do it because many of them need to encourage their victims to do unselfish things to them as a result of stupid addiction to sodomy. The end result is that hardly anyone is very clear about the difference between love and being a dumb ass, because that’s what evil people everywhere agree on. Where evil is united it has its greatest impact in creating delusion. People as a whole don’t need to be more liberal or more conservative–it’s not that unselfishness is all of a piece and the question is whether unselfishness is loving and good or stupid and bad–it’s that unselfishness from love is good and unselfishness from stupidity is bad. What people need to be more of is discriminating. Especially is this so because sodomizers ever try to get people to not discriminate between sodomy (by which I mean behavior that introduces semen into the digestive system, where it can most easily be absorbed to have its effects) and sex, something that mammals, unlike their primitive reptilian ancestors who have cloaca, have uniquely evolved to be able to do, thereby allowing the mammalian female (at the cost of requiring more water to replace what is lost in urine) to have a greater level of sexual freedom, determined ideally by her own natural sentiments rather than by whatever algesic and addicting rape-drug potions in semen have been absorbed by her digestive system.

    1. Yves Smith Post author

      You might bother learning that lots of straight people practice anal sex, and that’s because some women actually prefer it.

      Moreover, homosexuality has been observed in many animal species, so it clearly is natural, if a minority behavior.

      And the law facilitates discrimination against lesbians.

    2. Lambert Strether

      “[T]he South went to war in the name of honor so their white trash could glorify the enslavement from sodomy they inflicted on their womenfolk by glorifying racial slavery.”

      Evidence, please.

  25. Brooklin Bridge

    I’ve always been highly suspicious of people who don’t believe in the Great Pumpkin. Anyone who asks for something other than pumpkin pie is a Communist — bottom dollar.

  26. Christina Marlowe

    Hey Mike Pense!!
    Do you even realize that you are a true Idiot?
    Do you know that you and your KKK idiot-brethren are all subhuman genetic mutations resulting from centuries of inbreeding?
    Y’all have been devolving an awful long time and being the subspecies, the idiot, of course you cannot control yourself;
    Thus, you become pitifully enraged when you cannot control others.
    But…How can you rule the world and lord over us when you cannmot even manage to maintain or control your serious little short-willy complex?
    And if you cannot control that, then how on earth will you be able to partake in pissing contests not just with your little idiot-Kleptocrat-buddies–How will you hold your own with the REAL short-willy-boys, the corporate whoremasters?
    But…Why DO you feel the apparently uncontrollable need to force your psychotic delusions onto others?
    On second thought, Never mind.
    You’re beyond simply stupid, so I’ll just repeat:

    Mind your own goddamned affairs you twisted, perverted, voyeuristic pig-swine-Bleh-fleh…
    In fact, Take it ALL and take your filthy bible and…Shove it.

    What ever DID happen with ENRON, anyway?

  27. Steven Greenberg

    Isn’t it kind of paradoxical that we have to write laws that define what religion is and is not in order to carry out the First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”?

    How can you be sure you aren’t prohibiting the free exercise of religion when you are not to make any laws respecting an establishment of religion? As soon as you define what is a religion, you have made a law establishing religion. If you take the other meaning about of establishment as being about a place where religion is practiced, then as soon as you make a law such as exempting them from taxes, you are making a law respecting that establishment.

    I don’t think the framers of the Constitution really thought about the logical impossibilities they were writing into the law. We know that the Supreme Court hasn’t a clue about logic, so maybe this is why it hasn’t bothered them.

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