Saturday, March 28, 2015

RFRA Fallout Stronger Than Expected

The passage of the Religious Freedom Restoration Act has continued ever since Governor Mike Pence signed it into law. Proponents continue to push that is is modeled after the federal and previous states RFRAs but that goes up against reality, where an analyses shows there are three areas where Indiana's RFRA is significantly different.

The review from the business and political community has been mixed. A State Senator referred to Eric Miller, Republican activist and founder of the socially conservative group Advance America, as some misinformed activist with an opinion "from the right". But that misinformed activist somehow got a spot standing behind Governor Pence as the law was being signed. Miller took to his group's website to brag that the law will in part prohibit "a man [from using] the women's restroom".

Despite the overwhelming majorities that this law passed by, only a handful of state legislatures have taken to social media to defend this law. And none of the well paid lobbyists and activists are really doing themselves any favors.

In an column from The Indianapolis Star's Tim Swarens, Swarens says that based on his conversation with Pence, Pence's team didn't see any of the backlash coming. Some companies, such as GenCon, have walked back their economic threats in recent days. Others, such as Angie's List, have stepped up their game and called off a headquarters expansion that was receiving assistance from the State of Indiana. Pence also conversed with the Salesforce CEO who recently suspended all employee travel to Indiana but admitted that it did not change the policy.

Just like the JustIN boondoggle, Pence seems to have surrounded himself by a bunch of Yes-Men that have created a sort of tunnel vision where Planet Pence can do no wrong and that it is really only a problem with messaging.

How can a former radio host, who was well liked by Beltway media for how well they were treated by him and his staff, have so many scandals and fumbles that almost all seem completely self inflicted?


  1. Pence is an airhead. That's why he keeps messing up! Daniels was far worse as governor it's just the local press loved him so he got a pass for his shenanigans!

  2. Actually in the link, she only cites to two differences and they are not major differences. And they are differences between Indiana and the federal law. Not differences between Indiana and other state RFRAs. The major thing the RFRA does is to restore the Sherbert compelling interest test for examining free exercise challenges to statutes. That is 90% of what the RFRA does and why it is an extremely important piece of legislation. Matt, if you think people were protesting because of the differences she cites between the Indiana and federal law, then I have a bridge I'd like to sell you. They were protesting because they were ignorant, either innocently or deliberately, of what the RFRA actually does.

    As far as Indiana expanding the RFRA compelling interest to businesses being "blatantly unconstitutional" I have to wonder if she even took constitutional law in law school. It is one of the most basic principles of the law that the constitution is a floor on rights, not a ceiling. Legislative bodies, particularly states which have police powers, have always been able to add to constitutional rights via legislation.

    I don't put a lot of stock in the opinion of a second year attorney who bills herself as a "religion constitutional law expert." Give me a break. I have socks that know more about constitutional law than that very, very green attorney.

    I don't think anyone thinks that Angie's List pulling its taxpayer subsidized expansion plans had anything to do with the RFRA. That was a convenient excuse for a council proposal that appeared to be on the ropes. As far as other businesses, not sure where they are going to move to since we have a national RFRA and 30 other states have RFRA either via legislation or case law. Those corporate threats are nothing but hollow extortion attempts.

    Matt, the bottom line is that the RFRA does not give a business owner the right to refuse service. Never has. There is not a single case under the RFRA where that has happened. Further, most RFRA cases in fact have nothing to do with anti-discrimination laws. Freedom Indiana and its allies engaged in a bitter, divisive fight over a law that doesn't make one bit of difference in terms of advancing LGBT rights. What would make a difference is if Freedom Indiana pushed for an anti-discrimination bill that included sexual orientation. That truly would be a cause that would help out the LGBT community.

    Now, given this fight over the RFRA, the way the opponents distorted the facts, engaged in demagoguery and viciously attacked RFRA supporters, do you think they can go back to the legislature and get support for an sexual orientation anti-discrimination law. No, they burned a lot of bridges with the vile, contemptuous anti-RFRA campaign. They set back the cause of LGBT rights by 10-15 years at least.


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