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Questions for Lawyers and Folk

MyTeamIsOnTheFloor

MyTeamIsOnTheFloor

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If a gay couple goes into a florist and asks the florist to provide flowers for their same-sex marriage, is either party "acting under color of law"?

Is either party a "government entity"?

That is all for now.
Posted from Rivals Mobile
 
Are lawyers not "Folk"?

Is this about Indiana's RFRA? Or is it about something else?

Because Indiana's law applies to circumstances where only private parties are involved in the transaction.
 
some are, some aren't....heck, one around here is a goat!


As for IRFRA, you are right and the original post was idiotic. No one can go into a florist shop and physically force the florist to do anything. But IFRA clearly would apply if someone were to file a civil suit against a florist for, say, a discrimination claim--whether based on racial discrimination or discrimination based on sexual orientation. At that point the state has stepped in, and anything the court might decide in such a case is obviously a "state action." For example, "state action" is defined in IFRA to include the application of any state or local law or policy. Also, "burden" is defined in IRFA to include assessing a criminal, civil, or administrative penalty against a person. So unless the plaintiff only wants the court to politely tell the florist "please don't be so mean," IRFA does apply.
 
I'm Trying To Break It Down Step-By-Step

You say it applies to purely private actions. I've seen arguments to the contrary. Both sides seem to start at the end of the argument and argue only the policy debate.

The language (at least) starts by referencing acts "under color of law" that "burden" some "exercise of religion.

If either side is right, they oughta to be able to walk through a step-by-step explanation of the statutory terms and explain how that language shows they are right.

In fact, I am trying force both sides to do this. I think it helps to avoid the Hoosier Hysteria of the past few days.

so - if you can - explain to me (and others) step-by-step how a statute that says a Government/state actor/color-of-law event which winds up allowing a Little Old Church Lady to say "stop that" involves this ugly balance of rights (religion vs. gay rights) we have seen displayed.

Example - I can understand the case where a Native American is arrested and charged with a criminal violation for having eagle feathers, and defends saying "I have a right to use them in my religious ceremonies."

I do not see how the "Granny refuses to photograph gay wedding" event winds up in a similar legislation-involving circumstance, mostly because Granny is not gonna get arrested or sued and need to use the statutory defense.

Maybe I'd understand if Granny said "Bloomington won't renew my business license because I won't work a gay wedding" or "charges me more/fines me/taxes my license" due to my refusal.

But if the only event is the one everybody seems to be talking about (Christian won't serve gay), where in the statute do I find the language that everyone else says "allows" Granny to tell the gay wedding to take a hike?

To me it is a legitimate question deserving of an answer BEFORE Indiana is tossed out of the Union.

Emotion-free answers only please. There has been enough casting of insults. I'm trying to have a reasonable, non-confrontational conversation.
Posted from Rivals Mobile
 
Good Answer, But It Raises Another Question

Especially for lawyers.

As I understand it, Indiana law does not protect sexual orientation, so no legal claim of "denied goods/services because of my sexual orientation" exists, so Granny can't be sued and can't/wouldn't need this RFRA defense, right?

Speaking step-by-step of course!
Posted from Rivals Mobile
 
That's the thing . . .

or one of them . . .

. . . in some municipalities sexual orientation is a protected class. So the answer to your question is, of course, it depends.
smile.r191677.gif
 
Re: Good Answer, But It Raises Another Question

Originally posted by MyTeamIsOnTheFloor:
Especially for lawyers.

As I understand it, Indiana law does not protect sexual orientation, so no legal claim of "denied goods/services because of my sexual orientation" exists, so Granny can't be sued and can't/wouldn't need this RFRA defense, right?
Click to expand...
Well, according to Rock (see thread below), there is no statewide protection of LGBT people in Indiana--at least nothing explicit under state law. However, there are several cities in Indiana that have made LGBT people a protected class under local anti-discrimination ordinances. Also, someone could bring suit under some other theory and/or Indiana law, including a variety of common law claims, perhaps. For example, what if our baker accepts an order over the phone, not knowing it's a same-sex wedding until the couple stops by the bakery later to go over cake details? I could see a breach of contract claim that would fall under the scope of IRFRA. Far-fetched? Maybe, maybe not. Sure would be a novel way to get the issue before a court.
 
Re: I'm Trying To Break It Down Step-By-Step

"You say it applies to purely private actions. I've seen arguments to the contrary."

You've seen baseless arguments to the contrary. Here is what the law says, with my emphasis:

"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."

Step by step:

(1) Florist refuses to supply flowers for a gay wedding in a city with an ordinance that prohibits discrimination against LGBT people.

(2) Gay couple file suit under the ordinance.

(3) Florist asserts a defense under IRFRA, arguing that the ordinance (aka state action) substantially burdens its free exercise of religion under state law.

Voila.
 
But what if . . .

Instead of Hobby Lobby (or ND or whomever) suing the government, it instead refused to provide a policy to its employees that covered abortion drugs and instead paid the fine. Employee sues Hobby Lobby for not providing the mandated coverages. How does HL invoke RFRA? Is it precluded from doing so in that type of situation?
Posted from Rivals Mobile
 
bingo! Winner!

This is exactly the crux of it.

Now they are going to clarify apparently, that RFRA cannot be used as a defense. question is, does tha make everyone happy?
Posted from Rivals Mobile
 
Sounds like

you're open to a lawsuit any time you turn down a job no matter what the reason is.
 
Shelley v. Kraemer

Famous case. It ruled that a court order is a state action, even in a private lawsuit. I don't believe any state has rejected this legal theory. From that point if view, the terms of RFRA specifically allowing the defense in a private action might not even be necessary. Either way, it's clear that it would apply to any action in the court, private or no.
 
Probably as early as this afternoon

but perhaps tomorrow morning, the "Fix" to the alleged short comings of IFRA will be forthcoming. The Caucuses are meeting now - have been since 12 noon - to go over the language. Apparently the dissenting companies and the LGBT community have been consulted, Democrats advised and a conference committee on Senate Bill 50 - an election bill being used as the vehicle for a "trailer bill" - is ready to be posted for a meeting. In addition to the original conferees on the election bill, the leaders of each of the four caucuses have been appointed as advisors following the voice vote passage of the Senate Motion to Dissent.

Now, will the Dems agree? Will they oppose any change that is not a repeal?

Do they even care about the issue or are they pursuing a political wedge without regard to the legislative outcome? Assuming the 2 Democrat conferees refuse to sign the conference committee report, their attempts will be futile as they will be removed by the Pro-Tem and Speaker and replaced with Republicans who will immediately sign the report and in short order thereafter it will be voted on in each chamber, passed and sent to the Governor.

Any bets on whether the Dems support the "fix" or not?

If the Dems support the report - their conferees signing it - they will signal their approval for the fixed legislation and we should see nearly all of them vote for it.

Don't be surprised if the conference committee - today if it happens today - occurs during evening local news time.
 
Ah sure but

is the mere existence of a local ordinance state action absent an enforcement activity?
 
I wish they would

copy (exactly) the IL law and see what happens.
smile.r191677.gif
 
They won't

this isn't Illinois. The rest of the law, civil procedure and the arrangement of courts, jurisdictional thresholds, etc., etc., etc are our own and Illinois' is their own.

Being the disaster that Illinois is, the mere mention that Illinois does something a certain way has resulted in the defeat of legislation in Indiana in the not too distant past.
 
Here is the solution...

If people would keep their private matters private, IE: weather they are gay or straight or sideways, because I don't care, then nobody would know.

If I walk into a flower shop, the person waiting on me has no clue of my sexual preference, unless I tell them.

What this country needs is a great big dose of MIND YOUR OWN FREAKEN BUSINESS
 
It absolutely does, but . . .

I don't understand why people are getting hung up on state action. Unlike constitutional claims, anti-discrimination laws don't require it.
 
Re: Sounds like

Originally posted by NPT:
you're open to a lawsuit any time you turn down a job no matter what the reason is.
Click to expand...
Which is why I would only do so if I have really significant reason to do so--particularly when there might be any basis for someone to file suit. On the other hand, I would be very comfortable showing someone the door if the only reason for doing so is that I think they're a jerk. Nothing wrong with that.
 
As defined in RFRA, yes.

Section 9 allows a person to assert RFRA as a claim or defense, including in cases where his religious exercise is only "likely" to bu substantially burdened. Combined with the language of Section 1, it seems pretty clear to me that a person could sue a city or county that has one of these ordinances, even if no one is trying to enforce it against him.

However, other than among certain academic circles in law schools, I don't think that's really all that controversial. The topic of this thread is a person raising RFRA as a defense in a private proceeding against them. That is clearly available to them.

goat
 
What if,

there is a legit reason for turning down the job? Like scheduling conflict?

Sure sounds like this opens the door for a business to get sued for anything.
 
Section 8

A "governmental entity" may not substantially burden someone's religious exercise. The underlying cause of action under a non-discrimination ordinance might not require a state action, but a RFRA defense would. However, as I've already said about 400 times in these threads, both legal precedent and the plain terms of RFRA clearly allow the defense to be brought up in private actions. The actual violation of RFRA is the passage or enforcement of the law in question, which is clearly a state action and satisfies Section 8.
 
Stripping away emotion and acting as an objective lawyer


Here is my take.

1. IRFRA is unimportant to the issue of same sex marriage. The reason it is unimportant is because Indiana has no general law prohibiting discrimination against homosexuals. I understand that certain municipalities have enacted such protections. That is no big deal either. First, I don't think any court will hold that violation of a municipal ordinance supports an implied civil action in state court. So private actions are off of the table. Enforcement can happen in municipal court and in theory the IRFRA defense could be available there. In my experience, municipal enforcement of these laws is really rare. There have been only a few enforcement actions in all of Colorado.

2. Assuming Indiana had a statewide law listing homosexuals as a protected class. The plaintiff, (State or gay person) would need to establish a compelling governmental interest. I think that would happen because that is the holding in all similar cases on other jurisdictions of which I am aware. The next element would be the least restrictive intrusion issue. In a large shop, this can be easily fixed by finding one who does not have serious religious objections. In a one person situation, like a photographer, or a musician, say harp players as an example, IRFRA would apply. The same sex couple would need to find another individual to perform that service. My following comments assume there is a general Indiana law.

3. Religious belief. To use this defense, the vendor would need to establish several things; first that the religion saw same sex marriages as a problem, second the individual was a member of that religion and an active participant in it, third, the individual's religious beliefs were sincere and not a sham to avoid dealing with a gay marriage. As I mentioned several times, this is where the definition of religion becomes important, and is an issue nobody is talking about. In my view a vendor cannot simply say "I have a sincere religious objection to same sex marriage" and expect to win the case. The religion must be objectively defined and then proven to have taken a position against same sex marriage. Christianity is ambiguous in this regard. Islam is not.

4. Business vs. Individual parties. Much has been said that a problem with the Indiana law is that it allows a for profit business to take advantage of the law. I don't think this is a big deal. Here's why. We all know businesses cannot hold beliefs. They must come from individuals. I cannot see any court at any time holding that a business has a sincere religious objection to same sex marriage without first considering what beliefs the individuals who own and run the business have. This is the Hobby Lobby analysis. Think of vicarious liability. This would be vicarious belief and would operate the same way. How the business was operated would be another factor. If the owner was a devout believer of any religion that objects to same sex marriage, but kept the matter to themselves, and hired employees who didn't care one way or another about same sex marriage, then I don't think the court would allow the business to defend based upon the IRFRA, but the individual owner could.

5. The Element of personal participation. To take advantage of IRFRA, the individual must be asked to personally participate in the objectionable ceremony. This would obviously apply to musicians, photographers, and maybe to bakers and florists depending on the circumstances. If the business met the definition of a public accommodation, personal participation would be the only way to use the defense offered by IRFRA.

6. In General. Most of the disputes under RFRA laws will NOT come from same sex marriage issues. They usually come from land use regulations and building requirements for churches. There has also been a lot of litigation about using homes for regular prayer meetings and even worship services. In most zoning laws, single family residential districts do not allow churches and conflicts arise when a home is routinely used for worship and prayer. Enter RFRA. I have also run into RFRA issues in jails and the need to regulate what material an inmate may have in a cell. I can imagine food and drink regulations being a religious issue although I am not familiar with those cases.

I'm tempted to close with a zinger which would not be objective. I've said enough about that.
 
How long until the public sees the text?

I've gotten into the habit of using Casemaker for just about everything, since the new online Indiana Code is a nightmare. But, obviously, the text will be available on the GA website long before it's available on Casemaker.

As for your anti-Democrat comments, I think they are unfair partisan hackery, of course. However, once I see the text of the proposed fix, I may be willing to make the same complaint. There is a solution that would allow both sides to claim victory, at least based on what they have claimed their goals are in public. The only people who won't be happy are the conservative family organizations.

In other words, if they offer something to the effect of, "This chapter shall not offer a defense against an action arising under IC 22-9, Administrative Title 910, or any other state or local ordinance or regulation pertaining to discrimination in employment or public accommodations," then both the Dems and GOP will owe it to us, based on their comments in public, to vote for it, and Pence will have to sign it. If the Governor or GOP caucus backs off of that, then they were clearly lying about their intentions. And if the Dems refuse to accept that, then, well, it would illustrate why they are largely politically irrelevant in much of this state. And as for third parties, businesses and national organizations will have gotten exactly what they claim to want.

As for out-of-state politicians, I don't care what they do. I rank them right up their with celebrities who are jumping on the #BoycottIndiana bandwagon. Which is not very high at all.

goat
 
One thing I found

out quickly is that you can't have a rational unemotional discussion about it. I've tried on a couple places and as quickly as you disagree and state your opinion most people get all defensive and go into attack mode.
 
An objective response.

1. You are wrong about one thing here: local ordinances do give rise to a private civil action in Indiana. I do not know how common they are. Nor do I know if they are available in any county/city, or only specifically allowed under certain ordinances. I am not a civil rights attorney. However, I do know that people have filed private civil actions under non-discrimination ordinances, and those plaintiffs did have standing. This may be a difference between Indiana and Colorado, or it may be simply based on the way those particular ordinances were worded.

2. I think we've finally found a case where you expect RFRA to go even further than I do. I don't think such a statewide law (or local ordinance) would fail the least restrictive means test. This may be a great arena for future discussion on here.

3. I think you're wrong here. First of all, Indiana courts are largely barred from adjudicating the "correctness" of a claimed religious belief. There are exceptions, but generally, at least in Indiana, whether or not a person is mistaken in his interpretation of Christianity is simply not justiciable. As for RFRA specifcially, the law very clearly extends "religious exercise" as broadly as possible. Section 5 states that it "includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." There will be no requirement that a particular religion objects or that a person is an active member. It will probably be required for the belief to be sincere, but a court is likely to have to defer to the person raising the defense on that point, although I would expect the plaintiff to be able to offer evidence to the contrary (such as the same person previously serving similar events). Again, this may be a difference between Colorado and Indiana. In short, courts in Indiana simply don't deal with religion the way you describe in this point.

4. Once again, the plain language of the law makes it clear that the business can assert the defense on the basis of the religious beliefs of the majority owner(s). Employees are irrelevant.

5. There is no requirement that the person is an active participant in an "objectionable ceremony." All that is required is that the person is being forced to act, and the person finds that act to be a burden. I do not believe it will be enough for someone to say "I don't agree with same-sex marriage." They will have to be able to say, under oath, "I believe that it is a violation of my faith to provide my services to a same-sex marriage." That falls somewhere between the very restrictive reading you are proposing and the very liberal reading certain opponents of the law are proposing.

6. I agree with this point without objection.

This post was edited on 4/1 2:52 PM by TheOriginalHappyGoat
 
Re: Stripping away emotion and acting as a layman

I'm not a lawyer and won't pretend to be.

But if the intent of this law wasn't to discriminate then add LBGT (did I miss anybody?) as a protected group.

If the powers that be won't add LBGT to the list of protected groups then discrimination was the intent.

No wrangling with intent or lawyerese.

My own personal opinion is that if you operate a business in the public square then you can't refuse anyone as long as they don't request something outside your normal line of business and what they ask isn't illegal.
 
So if you're

a taylor and the KKK ask you to make robes you should have to do it?


In my opinion if you are a business and have something on the shelves for sale then you have to sell that to anyone as long as they meet any restrictions required to purchase the product BUT if you're in a business that provides a non essential service (in other words, an ambulance can't refuse to take someone to the emergency room, a doctor can't refuse to try to save someone's life, etc) then I think you should be able to refuse. Personally, I would never refuse anyone unless they requested something that was way outside my comfort zone.
 
How many units are you buying?

What delivery terms do you require? How long's the contract?

In a "true" market context the answer to your questions is an unqualified "yes". But there isn't a country in the world that operates on that theoretical basis today -perhaps more so in the US than elsewhere.
 
Sope, a question

do you charge everyone the same rate or does it depend on the job? I've never had much dealings with lawyers so I have no idea how they set their rates.
 
The KKK isn't a protected class

Businesses legally discriminate all the time. They just can't discriminate against disfavored minorities that have been afforded protection under the law. The question is whether LGBT people should be added to that list.
 
There You Go - A Nice Framed Issue For The Next Step

So Granny gets sued in say Hobart, under the Hobart City Ordinance No. 69, requiring Hobartians to offer public services without discriminating on the basis of sexual orientation.

Granny hires you to be her lawyer.
And you assert "the IRFRA Defense."

Am i correct or incorrect that we now have (1) a religious right protected by a US Constitution Amendment and an Indiana state statute in conflict with (2) a sexual orientation right to non-discrimination protected by a city ordinance and (arguably) protected by a "equal protection" right arising under the U. S. Constitution?

Am I missing anything or getting anything wrong yet?

If yes, please politely inform me/us/them.
 
An objective response to your objective response.


1. I don't know how a municipality can give a state court jurisdiction over a civil claim without a statute authorizing it. Does Indiana have such a statute?

2. No comment.

3. I realize the recent judicial trend is to take a hands off approach to reviewing an individual's statement of religion and religious belief. That said I see a problem with that. If we allow religion to be that subjective, we have essentially defined religion out of existence. I'm up to my eyeballs in a tax exemption case for religious use of property and this is a huge issue.

4. My first question when cross examining a business owner who doesn't want any part of his business to serve gays would be: "Why should this court honor you personal beliefs, and then extend your personal beliefs to your entire business, when you haven't done that with your business operations?" You might be right. But I think I can make a very strong argument for my interpretation.

5. Without personal participation, what is the problem? I don't think selling something over the counter to a gay couple can ever offend any religion, no matter what it is. I think I can successfully show and argue that with a few questions on cross examination about how careful vendor is with random customers. I do think asking a devout Christian musician to perform at a same sex wedding ceremony against their will is an issue and IRFRA would offer relief.
 
One can only use a zinger a single time . . . . .

Unless "french food" means something different from what I thought.
0C8xzwHostessZingers12pk.jpg
 
Flat hourly rate . . .

set by the firm . . . .

When I had my own gig I would negotiate contracts that discounted hourly rates in exchange for a committed monthly number of hours . . . and after too many hours, I jacked my hourly rates UP. So, let's say my "retail" rate is $100/hr, if you commit to, say, 40 hours/month then I might discount my rate to $90/hr. After 80 hours, I'd take the hourly rate to $110 or so . . . kind of like overtime . . .

. . . the idea being that I wanted to maintain a balanced portfolio of clients and have a semblance of a life. And if someone was willing to pay the jacked up rates, then I'd just raise the rates overall.
 
Yes . . .

although I can understand charging less for seniors . . . we make less of a mess.
3dgrin.r191677.gif
 
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