Riffin' on RFRA....(sorry)

Because, really, nothing else works here....

I was gonna put this in a comment, but it got too hard to read what I was saying in that tiny box.  So I'm moving it up here.

First, I'm responding (more or less) to Rick's comment.  I'm not arguing with it, mind; just using it to gather my own thoughts.  So here's Rick's comment first:

This is an issue that I've always been somewhat interested in because of my old involvement in a Peyote religion case. In my one trip to the Fifth Circuit they reversed the dismissal of my case on the basis that genuine religious conviction may, in the right circumstances, require even the setting aside of criminal drug laws.

Mr. Justice Scalia, in the Smith case, blew that old understanding of religious freedom out of the water, in an opinion so outrageous that Republicans and Democrats, in a rare show of near-unity, reinstated, by statute, the old standard in the Religious Freedom Restoration Act.

It now looks like Scalia has won the "progressives," and the Republicans seem not far behind. There are differences between the federal statute and the state "me-too's," but I don't see them as terribly material. The prospect of boycotting Indiana for passing a law substantially similar to current governing federal law--a law which essentially states the principle of religious liberty as I learned it at law school from Archibald Cox--compels me to repeat one of your favorite phrases: "I'll retire to Bedlam."

And of course corporations have religion; and we all know what they worship.

I'm gonna exercise some very old mental muscles and see if I can parse out Smith from Hobby Lobby (the connection being RFRA):

Pre-Smith cases rejected 1st Amendment protection for discrimination (NTodd has the links) pretty much on the basis of "compelling state interest" (I haven't read into the cases linked, but I remember the cases on racial covenants in deeds, from ConLaw.  And yes, that was many, many years ago.).

Smith was not a discrimination case (which the law generally does not allow, although it allows religious institutions to discriminate in who can be a clergy, for example), but a question of banned substances.  Well, that's not the legal distinction, but as I say, the muscles are weak.  Anyway, a question of what the law forbids, and should it be allowed under circumstances involving religious belief/practice.

And 6-3, the Court said:  "No."

Then comes RFRA, which came under scrutiny in the Boerne case, where the Court found that RFRA appeared to create a substantive change in constitutional protections, exceeding rulings of the Court on the 14th Amendment(the 14th because the 1st applies to states only through the 14th, and the case was brought under RFRA against a state agency, i.e., a city of Texas.)  So RFRA, in brief, went too far.

And that's where things get very complicated.  Boerne led to RLUIPA, a law for religious owners of land (I ain't goin' further there), an amendment to RFRA in 2003 which applied it only to the Federal government; and a law for peyote smoking Indians:  the Religious Freedom Act Amendments in 1994.  But RFRA still exists, and now the question is:  how did Hobby Lobby v. Burwell lead to the Indiana version of RFRA?

States passed their own versions of the law, which is a bit odd, since they didn't really need to.  I mean, it sounds like a protection of peyote smoking Native Americans and churches that want a building permit.  But the former involves federal law on controlled substances, and the latter involves state law which RLUIPA is meant to deal with.  I have an interest (I find) in RLUIPA because I'm familiar with the church involved in a RLUIPA case.

St. John's UCC was a very old church located near what became O'Hare Airport.  O'Hare expanded and took over the property of the church, removing the old building to a new location in Bensenville, IL, the city next to O'Hare (I used to live there).  What was left behind was the church cemetery which, I was told, Chicago promised to preserve in perpetuity.  Well, as long as grass grows and rivers run, as we once promised the natives here.

Then O'Hare wanted to extend some runways, and the graves were in the way.  At that point we get into legal arguments about eminent domain v. land use regulations, and which laws RLUIPA covers.  St. John's lost the case, and their graveyard; and while there is a contention that RLUIPA grants religious organizations special privileges not available to other landowners, a case making that point has yet to make it to the Supreme Court.  Sadly, all the St. John's case proves is that a group of old white people (dear people, I knew them well) can't fight Chicago; especially when they don't even live in Chicago.

The meek shall inherit the earth, but only after the not-meek are through with it, I guess.

Still not sure how this gets us to Hobby Lobby, but somehow the Court decided that RFRA gives closely-held corporations the same protections for religious practice as are allowed to individuals.  As I said before, the answer there is to refine the definition of "person" in that statute.  Does Hobby Lobby somehow allow Indiana's clearly anti-gay version of RFRA?

No.  Well, IMHLO, anyway.

It doesn't because religious practice doesn't allow an individual to discriminate against another individual in business, at least.  We settled that issue with the Civil Rights Act cases.*  Churches can't be compelled to sanction same-sex marriages, but individuals can't be allowed to refuse service based on race, creed, national origin, or sexual preference.  Well, at least not where there is a statute protecting sexual preference as we protect race, creed, national origin, or gender.  These are not constitutional matters but statutory ones.  Discrimination is barred by statutory law, not by constitutional jurisprudence.  Banning discrimination is a compelling state interest, which means it is generally upheld by the courts.  So Indiana's RFRA is bad law that may yet come to a swift end.

The State is at least going to have trouble defending discrimination against homosexuals as a compelling state interest.  Because, to put it bluntly, if your rights stop at the end of my nose, this language seems to push my nose to somewhere in the back of my head:

“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.”

Per Hobby Lobby, the courts cannot examine the legitimacy of a religious exercise claim, which gives the person under this law the freedom to make almost any religious claim they like.  That's going to run into limitations already recognized by law, or already existent in statutes; but it's also going to create a great deal of mischief where "religious freedom" is going to be used as cover for small-mindedness and sheer bigotry.

And if that's a return to the state of the law as Archibald Cox taught it, then the law is a ass.

* Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.

Newman v. Piggie Park Enterprises, Inc. 

Addendum:  turns out there's a bit more to this, so let me revise and extend my remarks:

“This Indiana law, unlike federal RFRA, codifies the notion that for-profit corporations may avail themselves of the religious freedom rights formerly only accorded to individuals and religious non-profits,” Rachel Laser, the group’s deputy director, said in a statement. “In fact, it goes even further than the Hobby Lobby decision because it extends this right beyond closely held corporations to all corporations.”

The statement comes from the Religious Action Center of Reform Judaism (via Religion Dispatches).  It makes my closing remark about Archibald Cox look glib (it was), because clearly this RFRA is not a return to the state of the law before Smith; this is an extension of the law after Hobby Lobby.  Which law never was, IMHO, very sound.

ONE LAST THING which makes my first conclusion extremely glib and frankly unsound:

When we talk about RFRA, we aren't talking about the law in Indiana:

Although the Supreme Court has held that the federal religious liberty law applies to some corporations, the statute itself applies only to people—and, as Justice Ruth Bader Ginsburg pointed out in dissent, extending it to for-profit companies strains the meaning of the text. There’s no such issue with the Indiana law, though: This measure was designed to apply to businesses, like florists who dislike gay people, as a straightforward reading of its text makes clear.

But it’s really the next provision that gives the Indiana law its startling and unique breadth. The federal religious freedom law was designed to protect individuals from government overreach, like a state law barring ritual drug use by American Indians. Indiana’s law, on the other hand, lets people (and businesses) cite their religious freedom as a defense in private lawsuits, even when they’re accused of violating a civil rights law. In practice, that means a baker who is required by a nondiscrimination ordinance to serve all customers may cite her religious opposition to homosexuality in order to refuse service to a gay couple. Here, then, is the true license to discriminate: A secular baker is still bound by the law; a Christian baker has a special religious right to kick out customers she dislikes due to her religion.

Which means, I think, the courts either have to allow discrimination of any kind under Indiana law; or it has to throw this law out wholesale, since it is unenforceable as written, because it so blatantly conflicts with so much settled law.

It certainly isn't the state of the law when Archibald Cox taught it, that's for sure.