POLL: Should Indiana Fix It Now?
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the exact words
may be nowhere to be found, but the idea is quite plainly there.
If the founders didn't want a separation of church and state, they would have simply left it with a free exercise clause, and not included the establishment clause. But they did, because they didn't want a national religion. Which is not surprising since there were so many Christian sects, and at that time, many of them considered the other sects barely Christian.
Now, i will grant you, I'm not sure they founders were thinking separation of church and states, they were thinking separation of church and the feds. There were official state churches up until 1833. So clearly, they weren't envisioning it to apply to the states.
Of course, none of the BOR originally applied to the states. States could torture to gain confessions, or block 6th amendment rights, or do just about anything (and they often did). But selective incorporation fixed that, and now we apply it to the states as well.
Of course we have a ton of case law precedent going back to the 19th Century also establishing this.
Separation of Church and State is nothing more than TJ turn of phrase that succintly and accurately describes the relationship between religion in the form of an official church and the state. Which is you are not involved in our affairs and we are not involved yours.
That seems very clear in the 1st Amendment.
may be nowhere to be found, but the idea is quite plainly there.
If the founders didn't want a separation of church and state, they would have simply left it with a free exercise clause, and not included the establishment clause. But they did, because they didn't want a national religion. Which is not surprising since there were so many Christian sects, and at that time, many of them considered the other sects barely Christian.
Now, i will grant you, I'm not sure they founders were thinking separation of church and states, they were thinking separation of church and the feds. There were official state churches up until 1833. So clearly, they weren't envisioning it to apply to the states.
Of course, none of the BOR originally applied to the states. States could torture to gain confessions, or block 6th amendment rights, or do just about anything (and they often did). But selective incorporation fixed that, and now we apply it to the states as well.
Of course we have a ton of case law precedent going back to the 19th Century also establishing this.
Separation of Church and State is nothing more than TJ turn of phrase that succintly and accurately describes the relationship between religion in the form of an official church and the state. Which is you are not involved in our affairs and we are not involved yours.
That seems very clear in the 1st Amendment.
someone else tried arguing this
court cases all across the country thing on another website. Even cited a UVA Law school article. Except that article only cites four cases in the entire country for that proposition....three of them don't even touch on the private v. private issue, the fourth is a second circuit case where the majority of the court indicated they were favorable to the idea but explicitly did not rule that way.
So no, court cases all across the country haven't been split on this issue, no court that I'm aware of has actually ruled that the federal RFRA applies to individual v. individual cases not involving the government.
court cases all across the country thing on another website. Even cited a UVA Law school article. Except that article only cites four cases in the entire country for that proposition....three of them don't even touch on the private v. private issue, the fourth is a second circuit case where the majority of the court indicated they were favorable to the idea but explicitly did not rule that way.
So no, court cases all across the country haven't been split on this issue, no court that I'm aware of has actually ruled that the federal RFRA applies to individual v. individual cases not involving the government.
There are several.
Starts on page 344 of the pdf linked from the URL. Sounds fairly split to me... which leads to the whole purpose of the Indiana law.
Case law is an interesting parallel to human history, with respect to "vengeance". Pro gay-rights groups are still incensed at the Hobby Lobby decision and have apparently sworn to prevent the scope of that law from penetrating further than the Federal level (hence casting the Indiana law as "anti gay" and, successfully I might add, stirring up the hornets nest). Pro religious rights groups are still angered about their "defense of marriage" acts being struck down all over the place and are determined to extend the Hobby Lobby decision to the states. I think public opinion seems to be "live and let live" all around, with no clear way on how to codify that to everyone's approval.
This post was edited on 4/2 1:25 PM by indyogb
Some circuits ... have allowed RFRA to provide a d
Starts on page 344 of the pdf linked from the URL. Sounds fairly split to me... which leads to the whole purpose of the Indiana law.
Case law is an interesting parallel to human history, with respect to "vengeance". Pro gay-rights groups are still incensed at the Hobby Lobby decision and have apparently sworn to prevent the scope of that law from penetrating further than the Federal level (hence casting the Indiana law as "anti gay" and, successfully I might add, stirring up the hornets nest). Pro religious rights groups are still angered about their "defense of marriage" acts being struck down all over the place and are determined to extend the Hobby Lobby decision to the states. I think public opinion seems to be "live and let live" all around, with no clear way on how to codify that to everyone's approval.
This post was edited on 4/2 1:25 PM by indyogb
Some circuits ... have allowed RFRA to provide a d
Re: This is exactly what is wrong with politics today
Just to clarify - I'm not defending the reasoning behind this law.
OK, that said, the Federal law is limited in scope only to the federal level. Some private parties have attempted to use the state laws which were passed using the Federal RFRA as a framework against other private parties. The court decisions have been mixed - some allowed it, some didn't. The only difference between the Indiana law and these others is that it clarified it *could* be used as a defense by private entities.
Whew... I think the law isn't really necessary, but I also don't think it is "discriminatory" against anyone.
P.S. I am not a lawyer, but I do try to read some of their BS for "entertainment", on occasion.
Just to clarify - I'm not defending the reasoning behind this law.
OK, that said, the Federal law is limited in scope only to the federal level. Some private parties have attempted to use the state laws which were passed using the Federal RFRA as a framework against other private parties. The court decisions have been mixed - some allowed it, some didn't. The only difference between the Indiana law and these others is that it clarified it *could* be used as a defense by private entities.
Whew... I think the law isn't really necessary, but I also don't think it is "discriminatory" against anyone.
P.S. I am not a lawyer, but I do try to read some of their BS for "entertainment", on occasion.
same law review article
I was talking about.
He cites four cases total for his proposition that "circuits are split" on private v. private in footnote 7.
Two of the four are bankruptcy cases (Christians v. Chrystal Evangelical, and Worldwide Church). Not only do they say nothing about private on private, but they are about government action (bankruptcy).
One is EEOC v. Catholic University. Besides the obvious giveaway in the named party to the case being a governmental agency, it also does not deal with private v. private.
The only one of the four that does is Hankins v. Lyght from the Second Circuit.
The critical language from that decision is:
'We need not, however, decide whether the RFRA applies to a federal law
enforceable only in private actions between private parties.'
So no...none of those four cases rules that way. The majority of the panel in Hankins is probably down with the idea, but they didn't actually make that holding.
I was talking about.
He cites four cases total for his proposition that "circuits are split" on private v. private in footnote 7.
Two of the four are bankruptcy cases (Christians v. Chrystal Evangelical, and Worldwide Church). Not only do they say nothing about private on private, but they are about government action (bankruptcy).
One is EEOC v. Catholic University. Besides the obvious giveaway in the named party to the case being a governmental agency, it also does not deal with private v. private.
The only one of the four that does is Hankins v. Lyght from the Second Circuit.
The critical language from that decision is:
'We need not, however, decide whether the RFRA applies to a federal law
enforceable only in private actions between private parties.'
So no...none of those four cases rules that way. The majority of the panel in Hankins is probably down with the idea, but they didn't actually make that holding.
as I pointed out below
actually none have allowed it.
Read that law review article, and read footnote 7. He lists the four cases he cites for that proposition. When you then read those four case, which I have, you see three of them don't remotely say that...the fourth says they think that's right but then they say:
'We need not, however, decide whether the RFRA applies to a federal law
enforceable only in private actions between private parties.'
So no, no one as of yet has successfully used the RFRA in a private v. private situation.
That's a major difference as is the fact that the Indiana law uses more expansive language.
actually none have allowed it.
Read that law review article, and read footnote 7. He lists the four cases he cites for that proposition. When you then read those four case, which I have, you see three of them don't remotely say that...the fourth says they think that's right but then they say:
'We need not, however, decide whether the RFRA applies to a federal law
enforceable only in private actions between private parties.'
So no, no one as of yet has successfully used the RFRA in a private v. private situation.
That's a major difference as is the fact that the Indiana law uses more expansive language.
Yeah you pointed it out. Yes, I read it.
Even the Virginia Law Review claims the results are mixed ("... ambiguity in the judicial relief section has given rise to a circuit split").
In the cases noted, the RFRA was allowed to be used, but one of the cases was lost by failure to meet the burdens as defined in the RFRA (as in the Philadelphia Church of God case - "failed to demonstrate generally applicable copyright laws imposed a 'substantial burden'"), and the other case allowed a church to use it in a bankruptcy proceeding (no note how that case ended, and I didn't look it up). In both cases, the defense was allowed.
As an aside, I would note that the cases don't seem all that common (undermining the necessity of the Indiana RFRA), and also, the burdens as interpreted in the courts don't seem easily overcome (undermining the worry that one could successfully use it to discriminate against gays).
I guess two people *can* read the same thing and come to totally different conclusions.
Even the Virginia Law Review claims the results are mixed ("... ambiguity in the judicial relief section has given rise to a circuit split").
In the cases noted, the RFRA was allowed to be used, but one of the cases was lost by failure to meet the burdens as defined in the RFRA (as in the Philadelphia Church of God case - "failed to demonstrate generally applicable copyright laws imposed a 'substantial burden'"), and the other case allowed a church to use it in a bankruptcy proceeding (no note how that case ended, and I didn't look it up). In both cases, the defense was allowed.
As an aside, I would note that the cases don't seem all that common (undermining the necessity of the Indiana RFRA), and also, the burdens as interpreted in the courts don't seem easily overcome (undermining the worry that one could successfully use it to discriminate against gays).
I guess two people *can* read the same thing and come to totally different conclusions.
did you actually read the cases?
Or are you continuing to cite the law review article?
I've actually read the cases.
NOT A SINGLE ONE ALLOWED THE RFRA TO BE USED by one private actor against another.
Bankruptcy cases are not private v. private cases. In one of those cases, the only reference to the RFRA talked about "governmental action."
Or are you continuing to cite the law review article?
I've actually read the cases.
NOT A SINGLE ONE ALLOWED THE RFRA TO BE USED by one private actor against another.
Bankruptcy cases are not private v. private cases. In one of those cases, the only reference to the RFRA talked about "governmental action."
Why are you telling people what they can and can't do? That is the real issue here. How do you rectify forcing someone to participate in a gay wedding by having to bake a coma a do deliver it?
That's the one specific example people fail to answer.
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If baking a cake and delivering it is what they are in their for profit business for then they bake and deliver a cake. Sorry baking a cake and delivering it are not participation.
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And photography? DJ? Wedding coordinator?
Why does the customer get to dictate whose rights are more important?
(Again, all assumes these are matters of choice. Society has dictated that there is nothing wrong with interracial marriage and that race is a protected class as it should be, thus refusing service to an interracial couple would be prohibited by law anyway. That isn't the case everywhere for gay couples.)
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So, at the end of the day
Will a man be able to go into Victoria Secrets and try on lady's lingerie without reprisal?
Will a man be able to go into Victoria Secrets and try on lady's lingerie without reprisal?
Re: So, at the end of the day
I don't see why not. Now some individual employee -wrongly I presume - might attempt to stop the man. But last I checked, VS doesn't have any policy stopping men from shopping there or even trying out clothes there. I am sure they will be willing to accomodate you if you expressed any such interest.
you can't be serious?
So no telling people what they can and can't do?
No requirements for health or safety? Wanna bake a cake with used bandaids from the free clinic inside? Go ahead, we won't tell you what to do.
Business owners get "told what to do" on a myriad number of issues, for good reason.
If you are selling to the general public, then you have to follow rules the general public lays down.
If you don't, then you don't have to go into business, or can go do something else that doesn't force you to put sugar and flour together for the "gays."
So no telling people what they can and can't do?
No requirements for health or safety? Wanna bake a cake with used bandaids from the free clinic inside? Go ahead, we won't tell you what to do.
Business owners get "told what to do" on a myriad number of issues, for good reason.
If you are selling to the general public, then you have to follow rules the general public lays down.
If you don't, then you don't have to go into business, or can go do something else that doesn't force you to put sugar and flour together for the "gays."
Re: you can't be serious?
The whole thing seems like a tempest in a teapot. If you don't want to bake a cake for a gay couple, I would imagine after giving you a piece of their minds the gay couple will take their business elsewhere. And to the extent the main reason for the religious freedom law seems to be hoovering around forced gay wedding cake baking, I'm simply perplexed as to why this such an afront to religious people. I supposed religious people, especially christians were supposed to show humanity and kindness to others not cruel mean spirited strident actions as groups like ISIS. Indiana's law seemed mean spirited and intended to make sure gays will continue to feel bad about themselves.
My chief concern with the recognition of gay rights is the financial cost to society for extended social security coverage, retirement and health insurance costs, which have not been factored into the system. How will we pay for all of this? I can't believe people are worrying about whether they have to bake a gay wedding cake. I have yet to see a restaurant or hotel refuse service to gays but apparently cake making is were society feels it needs to draw the line.
This post was edited on 4/4 8:39 AM by Bill4411
The whole thing seems like a tempest in a teapot. If you don't want to bake a cake for a gay couple, I would imagine after giving you a piece of their minds the gay couple will take their business elsewhere. And to the extent the main reason for the religious freedom law seems to be hoovering around forced gay wedding cake baking, I'm simply perplexed as to why this such an afront to religious people. I supposed religious people, especially christians were supposed to show humanity and kindness to others not cruel mean spirited strident actions as groups like ISIS. Indiana's law seemed mean spirited and intended to make sure gays will continue to feel bad about themselves.
My chief concern with the recognition of gay rights is the financial cost to society for extended social security coverage, retirement and health insurance costs, which have not been factored into the system. How will we pay for all of this? I can't believe people are worrying about whether they have to bake a gay wedding cake. I have yet to see a restaurant or hotel refuse service to gays but apparently cake making is were society feels it needs to draw the line.
This post was edited on 4/4 8:39 AM by Bill4411
I guess I just don't see where providing a service is participation. Did Ansel Adams Participate in nature or simply document? Has the hookie pookie ever solemnized a marriage? What impact does coordination have on the strength or weakness of a marriage?
Yeah they are not protected but in more and more locals marriage is allowed.
What I don't understand is this unrealistic belief that somehow the government can force people to be creative, artistic...I' will use myself as a GC here and a hypo- If a Jewish family asks me to renovate their living room, I can't say I won't do it because they're Jewish but if they want a hand carved a star of David and some Jewish saying in Yiddish on the mantel I can say, that's not what I do. I will still renovate their living room and it will be very nice but creativity I can't be forced to give them to give them their creative vision by the dreaded government. Now if they want to sue me they can, but good luck.
Yeah they are not protected but in more and more locals marriage is allowed.
What I don't understand is this unrealistic belief that somehow the government can force people to be creative, artistic...I' will use myself as a GC here and a hypo- If a Jewish family asks me to renovate their living room, I can't say I won't do it because they're Jewish but if they want a hand carved a star of David and some Jewish saying in Yiddish on the mantel I can say, that's not what I do. I will still renovate their living room and it will be very nice but creativity I can't be forced to give them to give them their creative vision by the dreaded government. Now if they want to sue me they can, but good luck.
Don't ask me... Ask the service providers who turn down the business. Apparently they feel as though they are condoning it somehow or something. Personally? It's bad business.
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