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March 31, 2015 4

Governor Pence’s Empty Defense of Indiana “Religious Freedom” Law

Indi­ana Gov­er­nor Mike Pence is receiv­ing national back­lash for sign­ing a so-called “reli­gious free­dom” law that is caus­ing major cor­po­ra­tions to rethink their activ­i­ties in his state.  The Gov­er­nor claims there is a “tremen­dous amount of mis­in­for­ma­tion and mis­un­der­stand­ing” about the law, which many are call­ing a license to dis­crim­i­nate. Yet he has repeat­edly refused to answer the sim­ple ques­tion: does the law legal­ize dis­crim­i­na­tion?  He likely won’t, because the hon­est answer is “yes.”

Michael Pence, Governor of Indiana

Michael Pence, Gov­er­nor of Indiana

Civil rights orga­ni­za­tions do not stand alone in their strong oppo­si­tion to this law.  In the 5 days since Gov­er­nor Pence signed Indi­ana Sen­ate Bill 101 into law, busi­nesses, sports leagues, and local and state gov­ern­ments have voiced their deep con­cern about the law and threat­ened action in response.

Two major busi­nesses have already restricted their Indi­ana oper­a­tions.   Salesforce.com announced that it will “dra­mat­i­cally reduce [its] invest­ment” in Indi­ana, will can­cel pro­grams that would require its cus­tomers to travel to Indi­ana, and may even help its employ­ees move out of state.  Angie’s List halted plans for a $40 mil­lion expan­sion in Indianapolis.

The gov­er­nor of Con­necti­cut, as well as may­ors of San Fran­cisco and Seat­tle recently announced plans to bar publicly-funded travel to Indi­ana.  Even Indi­anapo­lis Mayor Bal­lard sharply crit­i­cized the law. And other major busi­nesses and groups are also express­ing con­cern.  Apple Chief Exec­u­tive Tim Cook expressed deep dis­ap­point­ment with the new law, and the Indianapolis-based NCAA said the law could lead it to move events out­side of the state.

The NBA, WNBA, and NFL also voiced con­cern.   Just yes­ter­day, CEOs of nine major cor­po­ra­tions, includ­ing Eli Lilly and Co., Roche Diag­nos­tics, and Indi­ana Uni­ver­sity Health, hand deliv­ered a let­ter to Gov­er­nor Pence, the Sen­ate Pres­i­dent and the Speaker of House stat­ing that they are they are “deeply con­cerned about the impact [the law] is hav­ing on our employ­ees and on the rep­u­ta­tion of our state …” and urg­ing them “… to take imme­di­ate action to ensure that the Reli­gious Free­dom Restora­tion Act will not sanc­tion or encour­age dis­crim­i­na­tion against any res­i­dents or vis­i­tors to our state by anyone.”

In 2014, the Ari­zona leg­is­la­ture passed a sim­i­lar “reli­gious free­dom” law.   But under pres­sure from the civil rights com­mu­nity and busi­nesses such as Amer­i­can Air­lines, Google and the NFL, Gov­er­nor Jan Brewer wisely vetoed the ill-advised legislation.

Gov­er­nor Pence, how­ever, con­tin­ues to defend the law and argues it is just like the fed­eral Reli­gious Free­dom Act (“RFRA”) and other sim­i­lar state laws that have been on the books for years.  It’s not.

Although the new Indi­ana law never men­tions sex­ual ori­en­ta­tion or dis­crim­i­na­tion, it effec­tively allows all Indi­ana busi­nesses, except per­haps large, pub­lic cor­po­ra­tions, the right to dis­crim­i­nate against the LGBT com­mu­nity and oth­ers under the cloak of “reli­gious free­dom.”  The law does so by pro­vid­ing them with a pow­er­ful and vir­tu­ally insur­mount­able religious-based defense to any state or local civil or crim­i­nal law.

In con­trast, the fed­eral RFRA only applies when an actual gov­ern­ment entity “sub­stan­tially bur­dens” reli­gious exer­cise and is a party to a sub­se­quent legal pro­ceed­ing.  Fur­ther­more, prior to the U.S. Supreme Court’s deeply trou­bling Hobby Lobby deci­sion, RFRA was under­stood as only pro­vid­ing pro­tec­tions to indi­vid­u­als and reli­gious insti­tu­tions – and not for-profit, closed corporations.

So what does this mean in prac­ti­cal terms?  For exam­ple, let’s say that a gay cou­ple goes to tuxedo rental store to try on and reserve gar­ments for their wed­ding.  Based on the new “reli­gious free­dom” law, the owner refuses ser­vice to the cou­ple, claim­ing that serv­ing them would “sub­stan­tially” bur­den his or her reli­gious beliefs.  At this point, the cou­ple might seek a legal rem­edy.   Of course, law­suits are pro­hib­i­tively expen­sive and take years to resolve, so most denials of ser­vice will go unchallenged.

But even if the cou­ple chooses to bring a law­suit under Indi­ana law, they would have an uphill fight to meet the rel­e­vant legal stan­dard  “strict scrutiny.”   Lit­i­gants who must prove this stan­dard usu­ally lose.  Because fed­eral and Indi­ana state law do not pro­vide anti-discrimination pro­tec­tions based on sex­ual ori­en­ta­tion and gen­der iden­tity,  the LGBT com­mu­nity is the most vul­ner­a­ble to the “reli­gious free­dom” law.   But the law also could be raised as a defense to legal actions brought by cou­ples who are denied ser­vice because of their reli­gion, eth­nic­ity or national origin.

Dur­ing the civil rights move­ment, efforts by busi­nesses to cloak dis­crim­i­na­tion against African Amer­i­cans in the guise of “reli­gious free­dom” were ulti­mately defeated because our nation’s true reli­gious free­dom pro­tec­tions were never intended to be used as a sword to harm oth­ers.  But the new Indi­ana law does just that by allow­ing for-profit busi­nesses to use reli­gion as a vehi­cle to dis­crim­i­nate in the mar­ket­place.   Undoubt­edly, as long as it remains on the books, this law will fur­ther dam­age Indiana’s rep­u­ta­tion and economy.

With a month left in its 2015 leg­isla­tive ses­sion, the Gov­er­nor would be wise to push for a repeal of this odi­ous law.

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March 26, 2015 2

50 Years Later: Bending the Arc of the Moral Universe Towards Justice

Fifty years ago yes­ter­day Dr. Mar­tin Luther King, Jr. addressed a crowd of 20,000 peo­ple, many of whom had marched for a week from Selma to Mont­gomery, Alabama to advo­cate for vot­ing rights.  Their arrival was tri­umphant, after the first attempt had left the non-violent marchers blood­ied and beaten—but not defeated—by police offi­cers in Selma two-and-a-half weeks before. As he stood on the steps of the capi­tol build­ing in Mont­gomery and reflected on the jour­ney of the civil rights move­ment, Dr. King rhetor­i­cally asked, “How long will it take?” and famously answered, “Not long, because the arc of the moral uni­verse is long, but it bends towards justice.” martin-luther-king-jr

As with any long arc, it is almost impos­si­ble to see progress from up close.  Each small, incre­men­tal change seems insignif­i­cant from that van­tage point.  Yet tak­ing a step back and look­ing at the tra­jec­tory over the past 50 years reveals how every small step has con­tributed to bend­ing the arc just a lit­tle bit fur­ther towards justice.

Today, the United States has the first African Amer­i­can pres­i­dent and there are almost seven times as many African Amer­i­can elected offi­cials as there were in 1970, when researchers first began track­ing the num­bers. The 2012 elec­tion marked the first elec­tion in which African Amer­i­cans voted at a higher rate than whites.  None of that would have been pos­si­ble with­out the Vot­ing Rights Act of 1965, which in turn would never have come to be with­out the tire­less, daily efforts of count­less indi­vid­u­als.  From the Free­dom Rid­ers who risked their lives to reg­is­ter vot­ers, to the peo­ple who fear­lessly faced police offi­cers with billy clubs and tear gas on the Edmund Pet­tus Bridge, to the advo­cates who lob­bied for pas­sage of the bill and the lawyers who argued in court for it to be upheld, each had a small part in bend­ing the arc.

In other areas of civil rights, too, each incre­men­tal step seems small up close but con­tributes to the greater tra­jec­tory.  Today, as the United States hope­fully stands on the eve of mar­riage equal­ity for all, it is clear that many small steps com­bined to get us here.  From the pro­test­ers at Stonewall to the seven cou­ples who brought a case in Mass­a­chu­setts that would ulti­mately make it the first state with mar­riage equal­ity, from the mem­bers of the LGBT com­mu­nity who came out when it was very dif­fi­cult to do so to their allies who spoke up and spoke out about LGBT rights, each per­son and action had a small part to play.  In the area of women’s rights, the women who con­vened a meet­ing in Seneca Falls to write the Dec­la­ra­tion of Rights and Sen­ti­ments, the suf­fragettes, the women who had careers long before it was socially accepted, those who coura­geously came for­ward to speak about sex­ual harass­ment, and the men who sup­ported equal pay for equal work all put small cracks in the glass ceil­ing.  Together, all the advo­cates, activists, allies, and peo­ple who sim­ply spoke up played a part in bend­ing the arc.

The lessons of Selma are about secur­ing the fun­da­men­tal right to vote for all and civil rights more broadly.  But they are also about what can hap­pen over time if each per­son plays a part in advanc­ing civil rights, speak­ing up for social jus­tice, and mov­ing the ball for­ward just the tini­est bit.  Fifty years after Selma, we are much fur­ther along the arc and much closer to a per­fect union, but each of us has a role to play every day in deter­min­ing the tra­jec­tory from here.

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March 25, 2015 0

A Wave of Ugly Rhetoric Targeting Muslim Immigrants

In the last few months, some anti-immigrant activists as well as some anti-Muslim blog­gers writ­ing about Mus­lim immi­gra­tion have ratch­eted up their anti-Muslim rhetoric. Even more dis­turb­ing, some national and local polit­i­cal fig­ures have joined the ranks of those who pro­claim that Mus­lims are unable to assim­i­late into Amer­i­can cul­ture. They have declared that Mus­lims are invad­ing the coun­try with the intent to take it over.

Anti-Muslim protest in Texas

Anti-Muslim protest in Texas

This kind of anti-immigrant rhetoric is not new. The same kind of sen­ti­ment has also been directed at Latino immi­grants, par­tic­u­larly Mex­i­cans. For exam­ple, anti-immigrant extrem­ists have long pro­moted the Atzlan con­spir­acy the­ory that claims that Mex­i­can immi­grants are plan­ning on tak­ing over the South­west­ern part of the United States. Today’s focus is increas­ingly on Mus­lim immi­gra­tion, which is seen as far more insidious.

Anti-immigrant activists are using the atroc­i­ties com­mit­ted by ISIS (Islamic State of Iraq and Syria) and Mus­lim extrem­ists to gen­er­ate fear about all Mus­lims, includ­ing Amer­i­can cit­i­zens. Anti-immigrant blog­gers such as Colorado-based Frosty Wooldridge (until recently a board mem­ber of the Fed­er­a­tion for Amer­i­can Immi­gra­tion Reform) and California-based Brenda Walker use vir­u­lent anti-Muslim rhetoric to demo­nize Muslims.

To read more see: A Wave of Ugly Rhetoric Tar­get­ing Mus­lim Immigrants

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