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Wednesday, March 25, 2015

Indiana screws the pooch

Begin rant.

Well, the Indiana State Legislature has passed, and our governor has signed into law, an abomination titled formally the Religious Freedom Restoration Act (you can read it here, if you are so minded:…).

The two key sections appear to be Section 8 and Section 9 (what precedes those is mostly definitional). They read as follows:

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

 Sec. 9. 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.

 There is no definition in the law of "substantially burdened," although that may be a term of common meaning to lawyers. There is no attempt to identify what constitutes a substantial burden. These is no indication of what constitutes proof of a substantial burden. I think it's possible to make a coherent argument either (a) that almost any government regulation could "substantially burden" someone because of their religious beliefs or (b) that no regulation could possibly create a substantial burden.

This will also put the courts directly in the business of determining whether someone's professed religious beliefs are sincerely held or not--and isn't that a can of worms? The relief provided by the law is against a government entity that has burdened someone's exercise of religion. 
Incidentally, don't think YOU, as a job applicant, employee, or former employee, have any rights here. If a protected entity (i.e., a private organization r business) behaves in a way that burdens YOUR exercise of your rights, you are SOL (Section 11).

(By the way, this is the definition of "exercise of religion:"
"As used in this chapter, "exercise of religion" includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." Of course, it subsequently says that a "person" as meant by the act, includes (a an individual; (b) an organization, a religious society, a church, a body of communicants, or a group organized primarily and operated for religious purposes; and (c) a business "that exercises practices that are compelled or limited by a system of religious belief held by an individual or the individuals who control and substantial ownership of the entity." So I'm not clear whether your belief does or does not have to be a part of a system of religious belief.)

Lawyers should love this.

Of course, I think it's unconstitutional on its face. Whether one references the Indiana State Constitution or the U.S. Constitution..

And, of course, my (and your) tax dollars will be spent defending this travesty as the whole thing wends its way through the judicial system. (But, then, that's one of Indiana's largest budget items these days--defending insane laws and actions of state officials--specifically, the state attorney general--on federal court.)

End rant.


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