Tuesday, March 31, 2015

Of course right-wingers and the infotainment noozemedia lie about state "religious freedom" laws -- it's what they do!


Dylan Petrohilos/ThinkProgress

by Ken

Ah, it's what makes America . . . er, what it is. It's the great collaboration between right-wing crackpots and liars on the one hand and aiding-and-abetting infotainment noozemedia snooze-cruisers on the other. And the Grand Coalition for Ignorance and Obfuscation glistened in the darkness of its defense of Indiana's Right to Discriminate law.

So that, for example, a debased life form calling itself "John McCormack" could write Sunday on the Weekly Standard blog a piece headlined "Indiana Governor: This Is the Same Religious Freedom Law Obama Voted for in Illinois," with the deck "White House doesn't dispute it," passing along the claim by Indiana's lying-scumbag governor "that Barack Obama had voted for the same law as an Illinois state senator."

Now it's possible that Indiana's lying-scumbag governor truly didn't know that he was lying. In which case I expect that in a matter of days if not hours he'll be announcing his resignation on grounds of mental incompetence. I think it far likelier that he knows he's lying through his teeth (see Howie's post yesterday, "Mike Pence -- Pandering To The Worst Of The Republican Party Base"), leaving the only question whether the debased life form calling itself "John McCormack" knows he's lying.

Here's why I think Indiana's lying-scumbag governor has to know that he was lying: because he was there and presumably at least occasionally awake the whole time the Indiana legislature was putting its Right to Discriminate law together. How can he possibly not know how and why the law took the form it did? Which, by the way, is significantly different from Illinois's RFRA. And unless Indiana's lying-scumbag governor truly is mentally incompetent, there's no way he can possibly not know it. He knows all the players who made Indiana's law different, and I don't believe he doesn't know why they did it.

Yesterday ThinkProgress's Judd Legum tried to inject some sanity into this propaganda orgy with a post called "The Big Lie The Media Tells About Indiana’s New ‘Religious Freedom’ Law," which begins:
On Friday, the Washington Post published an article titled “19 states that have ‘religious freedom’ laws like Indiana’s that no one is boycotting.” The article snarks about organizations like the NCAA that have protested Indiana’s law, noting “the NCAA didn’t say it was concerned over how athletes and employees would be affected by Kentucky’s RFRA when games were played there last week.” The piece concludes “Indiana might be treated as if it’s the only state with a bill like this, but it’s not.” The piece has been shared over 75,000 times on Facebook.

The Washington Post article largely mirrors the argument advanced by Indiana Governor Mike Pence. Appearing on ABC’s This Week, Pence claimed “Then state-Sen. Barack Obama voted for [the Religious Freedom Restoration Act]. The very same language.”

The same argument is parroted on Fox News and elsewhere.

It’s not true.

The Indiana law differs substantially from the federal Religious Freedom Restoration Act, signed by President Clinton in 1993, and all other state RFRAs.


Nothing we're going to say here is meant as a defense for the stupid and unnecessary RFRA laws passed in the doody-brained states that have passed them. Still, with only one partial exception, those other state laws aren't like the one crafted by Indiana's hate-mongering religionists; other states' hate-mongering religionists either understood that they couldn't cross the lines now crossed by Indiana, or they were made to understand.

And while the federal RFRA, which remember dates back to 1993, has a totally different legislative history -- it was not designed to coddle mentally degenerate Christians suffering from the delusion that someone has interfered with their religious liberty. We'll come back to that. For now let's go back to Judd Legum, on the difference between Indiana's RFRA and the other states'.
There are several important differences in the Indiana bill but the most striking is Section 9. Under that section, a “person” (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose “exercise of religion has been substantially burdened, or is likely to be substantially burdened” can use the law as “a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding.”

Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens.* This means it could be used as a cudgel by corporations to justify discrimination against individuals that might otherwise be protected under law. Indiana trial lawyer Matt Anderson, discussing this difference, writes that the Indiana law is “more broadly written than its federal and state predecessors” and opens up “the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate…”

This is not a trivial distinction. Arizona enacted an RFRA that applied to actions involving the government in 2012. When the state legislature tried to expand it to purely private disputes in 2014, nationwide protests erupted and Jan Brewer, Arizona’s Republican governor, vetoed the measure.

[*The footnote says: "Texas’ RFRA, enacted in 1999, contains similar — but not identical — language. The Texas law, however, also specificly exempts civil rights protections from the scope of the law."]
My goodness, the Arizona uproar that ended in Governor Brewer's painful veto was barely more than a year ago. Is it really possible that all the right-wing liars claiming that Indiana is being singled out have already forgotten what happened in Arizona? I guess it is, and maybe it's not surprising when you consider that right-wing liars don't really have "memory" as such -- mostly they pick up their lies on the fly from friendly propaganda manipulators.

So let's remember all together. It was February 26, 2014, and the headline read: "Arizona gov. vetoes controversial 'religious freedom' bill":
Arizona Gov. Jan Brewer on Wednesday vetoed a Republican bill that set off a national debate over gay rights, religion and discrimination and subjected her state to blistering criticism from major corporations and political leaders from both parties.

The bill, backed by Republicans in the Arizona Legislature, was designed to give added protection from lawsuits to people who assert their religious beliefs in refusing service to gays. But opponents called it an open attack on Arizona's LGBT community.

The bill thrust Arizona into the national spotlight last week after both chambers of the state Legislature approved it. As the days passed, more and more groups, politicians and average citizens weighed in against Senate Bill 1062. Many took to social media to criticize the bill.
Prominent Phoenix business groups said it would be another black eye for the state and warned that businesses looking to expand into Arizona might not do so if the bill became law.
Companies such as Apple and American Airlines and politicians including Arizona's senior GOP senator, John McCain, were among those who urged Brewer to veto the legislation.

The governor was under intense pressure to veto the bill, including from three Republicans who had voted for it last week. They said in a letter to Brewer that while the intent of their vote "was to create a shield for all citizens' religious liberties, the bill has been mischaracterized by its opponents as a sword for religious intolerance."

SB 1062 would allow people to use their religious beliefs as a defense against claims of discrimination. Backers cite a New Mexico Supreme Court decision that allowed a gay couple to sue a photographer who refused to document their wedding, even though the law that allowed that suit doesn't exist in Arizona. . . .


Back to Judd Legum:
Thirty law professors who are experts in religious freedom wrote in February that the Indiana law does not “mirror the language of the federal RFRA” and “will… create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.”

Various federal courts have differing interpretations of the scope of the federal RFRA. The Indiana law explicitly resolves all those disputes in one direction — and then goes even further.

This is evident in Section 5 of the Indiana law which provides protections to religious practices “whether or not compelled by, or central to, a system of religious belief.” So entities can seek to justify discriminatory practices based on religious practices that are fringe to their belief system.

Beyond the differences between the Indiana law and other states, many of the other states that have a RFRA also have a law that prohibits discrimination based on sexual orientation. Indiana does not have one.
You'll recall that whenever the Indiana troglodytes who concoted their Right to Discriminate law claim that the law does no such thing, and they're invited to prove it by legislatively protecting the rights we all know they mean to deny, they've responded with shock and derision -- until just yesterday, that is, when in all seriousness the people who created the problem announced that they'll "clarify" the law, and all the problems will go away -- the principal problem being, of course, that to their astonishment, notwithstanding the Arizona convulsions, that there was actually some measure of public outrage over what they set out to do and by golly did. For sure, these are just the people I would trust to "clarify" their clear original intent out of existence.

The disingenuousness of the response to that apparently surprising response is pretty staggering. Washington Post "Fact Checker" Glenn Kessler, for example, awarded Governor Pence a mere single Pinocchio for his Sunday TV performance -- and he got that for not being prepared with smoother evasions, considering how clear it was that he was going to be asked the very questions he fumbled. Not just Glenn but other learned commentators have pronounced that the governor didn't actually say anything, or not much, that was strictly speaking, you know, untrue -- except that anyone with any knowledge of the sequence of events in Indiana, and with a working brain, knows that pretty much every word out of his mouth was intended to be a lie, since he knew perfectly well it was all bullshit.

Similarly, learned commentators insist that the uproar over Indiana's modest stand for religious liberty is way overblown, that it may have hardly any effect -- again pretending we don't know the effect the legislators clearly intended. And pretending we don't know the discriminatory effects other state RFRA laws and the federal law itself have had which not only weren't intended by the original legislators but flatly contradicted the known intent -- about which more in a moment.

Of course, to the extent that Indiana has demonstrated success in busting across the line that Arizona couldn't, has other states are already hard at work slithering across the line too. It looks like we're facing an epidemic of copycat laws -- copycats of the law that the liars and loons pretend is just like the previous 19 state laws.


Judd reminds us that the original RFRA wasn't a sop to degenerate Christians suffering delusions of persecution -- at, presumably, the tyrannical hands of America's perennially bullying Christian majority. The original federal RFRA was born in a different political world. And even a decade ago, when Illinois passed its law (the one that State Sen. Barack Obama voted for), "such laws were thought," as Indiana University Law Professor Steve Sanders has written for the American Constitution Society blog, "to be about about benign and relatively uncontroversial matters, such as allowing Muslim jail inmates to wear closely trimmed beards, or assuring that churches could feed homeless people in public parks."

Judd Legum refers us back to that letter from the "thirty law professors who are experts in religious freedom" who wrote that letter in February, which includes this:
[A]dvocates who favor the proposed state RFRA have argued that the proposals, at their core, mirror the federal RFRA, and that the federal law, in place since 1993, was supported by a wide coalition of Republicans and Democrats – and indeed, was signed by President Bill Clinton. It is argued that given this bipartisan support for the federal RFRA in 1993, the proposed state RFRAs, mirroring the text of federal law, should also receive bipartisan support. However, this parallel between support for the federal RFRA and the proposed state RFRA is misplaced. In fact, many members of the bipartisan coalition that supported the passage of the federal RFRA in 1993 now hold the view that the law has been interpreted and applied in ways they did not expect at the time they lent their endorsement to the law. As a result, the legislators who voted on RFRA have distanced themselves from their initial backing of the legislation.
A footnote notes: "Nineteen members of Congress who voted for the passage of the law in 1993 have now withdrawn their support for the federal RFRA given that it has been interpreted by the courts in ways that were not intended by the Congress at the time of the law’s passage." And if this rings a bell, recall that a wildly fanciful new interpretation of the federal RFRA was crucial to the Supreme Court's crackpot Hobby Lobby ruling.


And you've got the "big lie" of Judd Legum's post title. Fortunately, we're Americans and we like everything big -- and our lies perhaps biggest of all.

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At 4:29 PM, Blogger Professor Chaos said...

Of course they're lying. No conservative will ever argue anything honestly. "RFRA laws don't allow discrimination." "Capital gains taxes mean you pay tax twice on the same money." "Increasing the minimum wage will destroy jobs."
They know they can't win on the merits of their arguments, so lying has just become their default mode.

At 6:38 PM, Anonymous Bil said...

Best article I've seen summarizing Indiana's attack.
Well done Ken.

Steven King, a man of many more words, managed to summarize the defense, and alleged fixing, of Indiana's RFRA something like.

"When you frost a dog turd, it's still a dog turd."

At 12:30 AM, Anonymous Anonymous said...

I'm anxiously awaiting the lawsuit resulting from a Catholic caterer refusing to make a wedding cake for a Protestant couple because they do not believe in the Virgin birth nor venerate "the saints" nor pray with a rosary .... etc

Bring on a separate 30-years-war for every possible combination and permutation of the different (100s?) "Christian" sects!!!

John Puma

At 9:16 AM, Blogger KenInNY said...

Now that's creative thinking, John!

And it's not even thinking "outside the box." They've manufactured their very own box.



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