OK all the misguided information

[CO. Hoosier]

Nope . . . .

The only way this law make procedual sense is for the governmental agency to bring the action on behalf of an individual party. Then we are both right. This is common EEOC stuff as well as, in Colorado at least, state civil rights stuff. But if the party discriminated against brings a federal action, this action doesn't apply, I think we can agree on that much.

I stand by my comment that only a state action, for general or individual enforcement can impose the burden which triggers the statute. The more I think about it, the more this interpretation makes sense for a number of reasons. Once again, the hoo rah rah about this statute is a tempest in a tea pot.

 

[CO. Hoosier]

I understand that

and have addressed this issue once in this thread and twice in others. The courts are pretty consistent in saying that civil rights laws are in furtherance of a compelling state interest. For example, do you think Hobby Lobby would be the same result if the issue was homosexual rights instead of contraception?

 

[TheOriginalHappyGoat]

So what you're saying is...

...if the Indiana Civil Rights commission brings an enforcement action against a business owner, they can assert this as a defense.

If a private citizen files a civil action based on the same perceived violation, this defense is no longer available.

That simply doesn't makes sense, doesn't match pretty basic legal standards, and doesn't match the text of the law.

You're out to lunch, here, COH. I think your stubbornness is getting the better of you in this debate.

 

[TheOriginalHappyGoat]

Oh, I agree with the outcome...

If the issue were a violation of public accommodations discrimination, Hobby Lobby would (should?) have come down differently, no doubt about that. And if someone wants to raise RFRA as a defense against, e.g., Bloomington's anti-discrimination laws, I think Bloomington will win. I've never denied that. In fact, I'm currently having some (respectful) fights in other venues with my non-Hoosier liberal friends who are saying all sorts of awful things about our state because of this law. I absolutely agree with you that this law will not allow much - if any - new discrimination that isn't already legal. I'm simply arguing with you right here on this one singular point - whether or not defendants in a private civil action will be able to raise the defense provided in RFRA.

goat

 

[CO. Hoosier]

Geeze goat

if there is a private right of action against a bakery based upon a different statute, the Indiana RFRA statute doesn't apply by its own terms. You are getting all wrapped up in your moral indignation at this statue and are losing site of what it says.

 

[TheOriginalHappyGoat]

I'm really not.

I'm going by the very terms of this law, terms which you think need to be interpreted out of the law entirely.

I have no "moral indignation" against this law. I have a political and pragmatic indignation against the people who thought passing it in this form would be a good idea.

goat

 

[Rockfish1]

Bad lawyering

Section 9 expressly provides that the law may be raised as a defense "in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding." Further, "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 misinterpretation of the Act disregards this plain language.

Nor is there any mystery about where the state action enters in. Section 1 helpfully explains that the law applies to all "statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015." Thus the state acts when it adopts a law that substantially burdens a bigot's ability to discriminate against a disfavored minority. The law gives that bigot a defense, which the bigot may assert against a private party seeking to enforce an anti-discrimination law, "regardless of whether the state or any other governmental entity is a party to the proceeding."

As a practical matter, the new law probably wouldn't authorize much more discrimination than already occurs. But it still can't be read the way you misread it. If you advised a client that way, you'd commit malpractice.

 

[Rockfish1]

That's an odd argument

Prof. Conkle says:

"Under the Indiana RFRA, those who provide creative services for weddings, such as photographers, florists or bakers, could claim that religious freedom protects them from local nondiscrimination laws."

He's right. That's exactly what the law would allow them to do. That's what its proponents specifically intended for it to do.

But then he says this:

"It is anything but a 'license to discriminate,' and it should not be mischaracterized or dismissed on that basis."

Having acknowledged that the law creates a defense to anti-discrimination laws, Prof. Conkle derides the claim that it creates a "license to discriminate". If you read him carefully, he's not disputing the conclusion that he himself draws. Instead, he's merely rejecting the rhetoric that some who reach his conclusion employ.

Needless to say, all of this is over your head, which presumably explains why you resorted to block quotation, without any analysis of your own. You've done much the same thing with regard to the Act itself. You've helpfully linked to the text, but without any textual analysis of your own, you've unhelpfully claimed that the text unambiguously supports your misreading of it. Unimpressive.
This post was edited on 3/29 6:27 AM by Rockfish1

 

[Ladoga]

The refusal

or inability to read and understand this law is horrifying.

Read Sec 11. Its the last section of the act. Its at the end of the act. You can find the end of it. It bars private actions.

 

[Rockfish1]

Sigh

No, Section 11 doesn't bar private actions. It only bars private actions "against any private employer by any applicant, employee, or former employee." It says that you can defend your religious freedom against anyone other than your employer. Because employers are Republicans' most favored class of all.

Reading is fundamental, Ladoga. I hope no one is missing the irony that you've once again failed to do it -- in a post chiding others for their "horrifying" inability to read the law's plain language.

 

[Rockfish1]

Let me run a highlighter over this

Imagine that a doctor posted here that smoking doesn't cause cancer. Or an airline pilot posted that the shape of a plane's wings has nothing to do with lift. Or an electrician posted that you can safely plug as many appliances as you want into any outlet. Or a plumber posted that there's no reason to have a trap in your drain. Or a librarian posted that the Dewey decimal system had never really helped anyone find a book.

I'd think that any sensible person would react like this: "Wow. You're incompetent at what you claim is your core competence. Why should we credit anything you say?"

Bad lawyering by a lawyer is a tell. You ignore it to your detriment.

 

[Ladoga]

I know

that you know very little about legislation and the legislative process, but there are no other private actions to bar after Sec 11 was added by amendment. The rest of the bill requires only that there is a defense to state action.

Of course, you know - you surely know - that the bill doesn't create actions, it creates a defense against state or local government action. However, there was concern that the bill might allow a court to entertain a private third party action, so Sec. 11 was added to prevent an onslaught of frivolous lawsuits by the plaintiff's bar who are always looking to sue someone..

 

[Rockfish1]

HAHAHAHAHAHAHAHAHA

As you now belatedly agree, the Act doesn't bar all private rights of action. As I said, it bars only actions by an employee against an employer.

It does expressly allow private parties to assert claims against other private parties "as a claim or a defense," so once again you're just not reading the law that you complain that others aren't reading. No amount of hand-waving about your supposed expertise in the legislative process can obscure the reality that you have no idea what you're talking about. No. Idea. What. You're. Talking. About.

 

[CO. Hoosier]

LOL. You NEVER disappoint

I knew you could never make point without a stupid personal ad hominem insult.

 

[Rockfish1]

Prove me wrong

It's a simple matter, right? Nouns and verbs. If you aren't engaged in malpractice, you could easily demonstrate it. But you'd rather retreat to victimhood. It's pathetic. Also, it's more bad lawyering.

 

[CO. Hoosier]

None of this holds water.

Your highlighted paragraphs don't support the notion that this statute applies to parties who are not governments. All they say is that there can be more than one governmental entity involved in the violation and the remedy.

Look at section 10. There is no statutory relief allowed against individuals. Seems odd then to read the statute as allowing claims by and against individuals but not authorizing any relief.

What you are saying is that when the government passes an anti-discrimination law intending to protect a group of people, but the state writes the law in a way that violates the constitutional rights of the public, then the public is authorized to sue a member of the protected group for the excessive government action, or defend a separate private action brought by a member of the protected class because the state overstepped its constitutional authority. I don't think so.

As I said umpteen times, if you are actually arguing there is ANOTHER law (not this one) authorizes a private action by a member of a protected class, the conflict between that other law and this RFRA one is not worth all the hoo rah rah either because all courts that I know of hold that stopping discrimination is a compelling governmental interest. So what we have left is litigation about least intrusive regulations. Not a very big deal and not worth all the emotional outrage over this law.

 

[Rockfish1]

Huh?

"Your highlighted paragraphs don't support the notion that this statute applies to parties who are not governments."

The Act expressly states that it applies to actions in which no governmental entity is a party. Your new misinterpretation that it might relate to litigation in which an extraneous governmental entity is gratuitously joined as a party serves only to underscore what bad lawyering you're engaged in. For whom is this nonsense intended? What are you about with this silliness? Don't you see that you should promptly stoop to pick your tattered reputation off the ground?

 

[Rockfish1]

I get exasperated with you

At least in theory, you're capable of much better than this. You ought to be among those raising the bar. Yet here you are lowering it -- and doing so in a way that defames our profession.

When I accuse you of bad lawyering, that's about the worst accusation I could make. Prove me wrong. Please.

 

[Ladoga]

The defense is not

against a third party action. It is, if raised, against state or local government action.

 

[CO. Hoosier]

This could be interesting if you'd stop posting with your asshole

But I can over come such things so I'll proceed like a professional.

You seem to argue that this contemplates private actions:

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.

I disagree. First, the paragraph refers to a "violation of this chapter". Only a government can violate this chapter. Not an individual. Second, administrative law proceedings are always creatures of statute and must therefore be based upon a statutory claim. I think we can agree that the RFRA statute does not authorize private claims either expressly or by implication. So what we have left is a judicial claim involving private parties about intrusion on the free exercise clause. But private parties cannot be liable for constitutional violations. I'm not sure how this claim can ever arise absent statutory authorization to bring it. So any claim must fit within some statutory framework. RFRA does not provide that framework notwithstanding the clause you and goat rely on. As I said, the threshold is a violation of "this chapter" which clearly can only be done by a government.

I suppose one can imagine this idea coming up in Westboro Baptist church type litigation. But I don't see the importance the Indiana RFRA beyond the law already in place about such matters.

In sum, the Indiana RFRA law is 95% bumper sticker and 5% substance. The law in and of itself creates no private rights of action. So we are left with a very narrow band of litigable issues which are not worth all the hoo rah rah.











This post was edited on 3/29 11:20 AM by CO. Hoosier

 

[Rockfish1]

Sigh

The defense can be raised regardless of whether a governmental entity is a party to the litigation. The requisite "state action" occurs whenever a governmental entity enacts a law that would substantially burden a bigot's ability to discriminate against a disfavored minority. The law allows the bigot to challenge that anti-discrimination law, once again, regardless of whether a governmental entity is a party to the litigation. Thus, the law applies in litigation between private parties, notwithstanding your repeated erroneous claims to the contrary.

 

[Rockfish1]

No, no, no, no, no

By the express terms of Section 1, the law "applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015." Thus the government "violates this chapter" whenever it passes a law that substantially burdens a bigot's religious conviction to discriminate against a disfavored minority. The Act expressly allows such a bigot to assert the law "as a claim or defense . . . regardless of whether the state or any other governmental entity is a party to the proceeding." Your stubborn insistence that the law only applies in governmental enforcement actions is baseless, as any decent lawyer ought to recognize. I honestly do not understand how you claim otherwise.

 

[CO. Hoosier]

Understood

The law seems to apply to actions between private individuals. Then we must to go deeper. What would be the subject matter of such litigation? Under RFRA, the litigation MUST involve a violation of its terms by some government; because the one thing clear with RFRA is that only a government can violate it.

As I have pointed out umpteen + 1 times now, lets assume there is some other private action that RFRA would control. That action must be based upon another statute since there is no common law claim for discrimination absent separate tort elements. When the courts have considered the conflict between protective anti-discrimination laws and constitutional rights of the public, the courts universally hold that the government has a compelling interest in ending discrimination. RFRA would be subordinated to such a statute by its own terms. The only thing left is the least intrusive issue which doesn't warrant all the emotional outrage.

 

[Rockfish1]

Not quite

The law doesn't "seem[] to apply to actions between private individuals." It expressly applies to actions between private individuals. That's why it states that the law may be asserted "as a claim or defense . . . regardless of whether the state or any other governmental entity is a party to the proceeding." I don't understand why there's been any disagreement about that.

Yes, it's true that the courts have held that the government has a compelling interest in preventing discrimination on grounds like race, religion, and national origin, so this law wouldn't have any effect on that. But as the law's homophobic proponents recognize, the courts have not concluded that the government has a compelling interest in prohibiting discrimination against gay people, and it is precisely this discrimination that they seek to encourage.

As a practical matter, this law won't authorize much more discrimination than already occurs, but that doesn't forgive its invidious intentions. Decent people are properly offended by the bigotry it represents.

(By the way, it offends me that people blame Christ for their bigotry. That's entirely on them, and there's no hiding from it.)

 

[CO. Hoosier]

Well . . . . .

If the courts eventually decide that homosexuals should be seen as a different protected class under the law, then so be it. That is why they get the big bucks and lawyers get bigger bucks for arguing about that.

It is also is a good thing the opinions of homophobic proponents means exactly zilch when it comes to applying or interpreting RFRA.

I agree with your last paragraph.

 

[all4iu76]

Clarification needed.

As all can see from this debate, there is a great amount of confusion. Are behaviors considered civil rights?

For example if a man and his goat have a relationship and want to have a cake for their wedding, do I as a cake maker have the right to refuse to sell them one and not be sued because of religious beliefs? What about the pastor that doesn't believe in goat marriages and does not want to marry them, can he be sued?

Most people are probably okay with goat marriages but for those that are not okay with this behavior because of their religious beliefs, it certainly seems fair not to require a pastor to marry them and be sued.

 

[all4iu76]

Clarification needed.

As all can see from this debate, there is a great amount of confusion. Are behaviors considered civil rights?

For example if a man and his goat have a relationship and want to have a cake for their wedding, do I as a cake maker have the right to refuse to sell them one and not be sued because of religious beliefs? What about the pastor that doesn't believe in goat marriages and does not want to marry them, can he be sued?

Most people are probably okay with goat marriages but for those that are not okay with this behavior because of their religious beliefs, it certainly seems fair not to require a pastor to marry them and be sued.