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April 3, 2015 6

Arkansas’ and Indiana’s Fixes to “Religious Freedom” Laws are Illusory

Arkansas’ and Indiana’s pas­sage of dis­crim­i­na­tory “reli­gious free­dom” laws was met with national back­lash from civil rights groups, the busi­ness com­mu­nity, and oth­ers.  Under intense pub­lic pres­sure, both state leg­is­la­tures made “fixes” to these laws, which their respec­tive Gov­er­nors promptly signed.   But these revi­sions are illu­sory and do lit­tle to mit­i­gate the harms of these laws.

Nei­ther of the orig­i­nal Arkansas or Indi­ana mea­sures men­tioned sex­ual ori­en­ta­tion or dis­crim­i­na­tion. Under the guise of reli­gious free­dom, how­ever, both allowed busi­nesses and employ­ers to dis­crim­i­nate against the LGBT com­mu­nity, as well as against reli­gious and eth­nic minori­ties, by pro­vid­ing them with a vir­tu­ally insur­mount­able religious-based legal defense.Arkansas-StateSeal.svg

Pro­po­nents of these laws erro­neously claimed that they were mod­eled on the 1993 fed­eral Reli­gious Free­dom Restora­tion (“RFRA”).  That RFRA, which the Anti-Defamation League sup­ported, was much nar­rower and explic­itly designed to pro­tect indi­vid­u­als and faith-based insti­tu­tions’ reli­gious exer­cise from gov­ern­ment infringe­ment.   It was never meant to apply to for-profit enti­ties or pri­vate dis­putes, or to enable enti­ties to dis­crim­i­nate against indi­vid­u­als in the name of “reli­gious freedom.”

Indiana’s fix to its law pro­hibits busi­nesses from deny­ing ser­vices to cus­tomers based on sex­ual ori­en­ta­tion or gen­der iden­tity.  And Arkansas’ revi­sion now tracks the lan­guage of RFRA and states that it should be inter­preted con­sis­tent with the fed­eral law.  While these fixes may make good media sound bites, they are misleading.

The revised Indi­ana law does not pro­vide statewide civil rights pro­tec­tions for the LGBT com­mu­nity or pre­vent its use to harm oth­ers.  Because the state does not have an inclu­sive anti-discrimination statute, and because the vast major­ity of Indi­ana cities and towns lack local civil rights pro­tec­tions for the LGBT com­mu­nity, busi­nesses and employ­ers remain free to dis­crim­i­nate on the basis of sex­ual ori­en­ta­tion or gen­der iden­tity.   Even with this fix, the Indi­ana law still pro­vides a pow­er­ful religious-based defense to indi­vid­u­als and busi­nesses in civil and crim­i­nal actions, and infringes on the rights of oth­ers.  For exam­ple, a police offi­cer could refuse to pro­tect a casino, liquor store, phar­macy, butcher shop, lend­ing insti­tu­tion, or women’s health clinic.

Indiana-StateSeal.svg

The amended Arkansas law is per­haps more disin­gen­u­ous.  Although it is now con­sis­tent with RFRA, the U.S. Supreme Court’s deeply dis­turb­ing Hobby Lobby deci­sion expands RFRA’s pro­tec­tions to for-profit, closely held cor­po­ra­tions (rang­ing from small busi­nesses to nation­wide com­pa­nies like Hobby Lobby).  And a 1999 fed­eral U.S. Court of Appeals deci­sion applic­a­ble to Arkansas ruled that RFRA applies to pri­vate disputes.

So a fam­ily owned busi­ness, large or small, can invoke the new law’s pow­er­ful defense in vir­tu­ally any civil action, includ­ing claims of dis­crim­i­na­tion or wrong­ful denial of ser­vice, employ­ment or hous­ing.  Keep in mind, 96.6% of Arkansas’ employ­ers are small busi­nesses.  Trans­la­tion: the vast major­ity of Arkansas’ busi­nesses can use the law to deny ser­vices, employ­ment, and hous­ing to the LGBT com­mu­nity and other minori­ties.  Mak­ing mat­ters worse, Arkansas has no state-wide civil rights pro­tec­tions for the LGBT com­mu­nity, and it recently enacted another law bar­ring local gov­ern­ments from pro­vid­ing such pro­tec­tions for their residents.

To truly rem­edy the harm­ful effects of their so-called “reli­gious free­dom” laws, Arkansas and Indi­ana must enact statewide anti-discrimination pro­tec­tions for the LGBT com­mu­nity, insert addi­tional safe­guards against use of the laws to harm oth­ers, and limit their appli­ca­tion to indi­vid­u­als, reli­gious insti­tu­tions, and religiously-affiliated non-profits against gov­ern­ment action that sub­stan­tially bur­dens religion.

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August 20, 2013 0

ADL Coordinates Coalition Letter On Department Of Education Bullying Data Collection Proposal

On June 21, the Depart­ment of Edu­ca­tion (DoE) announced a num­ber of revi­sions to its Civil Rights Data Col­lec­tion (CRDC) school sur­vey.  The CRDC is the largest, most impor­tant, and most com­pre­hen­sive data col­lec­tion instru­ment of its kind.  It requires schools and school dis­tricts to pro­vide data on a wide range of rel­e­vant edu­ca­tion issues.  The DoE pro­posed that CRDC add sex­ual ori­en­ta­tion and reli­gion to their exist­ing effort to col­lect data on bul­ly­ing and harass­ment on the basis of race, sex, and disability. civil-rights-data-collection-bullying

Accom­pa­ny­ing resources for the DoE announce­ment stated: 

Safe envi­ron­ments are crit­i­cal to learn­ing. Since the 2009, the CRDC has pro­vided a lens on school cli­mate and the bul­ly­ing and harass­ment that stu­dents too often endure on the basis of race, sex, and disability….

ADL coor­di­nated a let­ter from 49 national orga­ni­za­tions pro­vid­ing com­ments relat­ing to these pro­posed CRDC revi­sions.  In our com­ments, ADL and its coali­tion of edu­ca­tion, reli­gious, civil rights and pro­fes­sional orga­ni­za­tions sup­ported DoE’s deci­sion to expand the CRDC to include reports of bul­ly­ing and harass­ment based on sex­ual ori­en­ta­tion and reli­gion, and encour­aged the col­lec­tion of data on inci­dents based on gen­der iden­tity. We argued that though the impact of bul­ly­ing has been well doc­u­mented, there is insuf­fi­cient data on the nature and mag­ni­tude of bul­ly­ing directed at indi­vid­u­als on the basis of their sex­ual ori­en­ta­tion – and even less on religion-based and gen­der identity-based bullying.  

ADL and its allies also urged the Depart­ment to recon­sider their pro­posal to elim­i­nate ques­tions relat­ing to whether a school has adopted writ­ten bul­ly­ing pre­ven­tion poli­cies.  An essen­tial start­ing point for effec­tive response to bul­ly­ing and harass­ment in schools is the adop­tion of a com­pre­hen­sive, inclu­sive bul­ly­ing and harass­ment pre­ven­tion pol­icy.  The inclu­sion of ques­tions relat­ing to whether an edu­ca­tion unit has such a pol­icy, the coali­tion argued, ele­vates aware­ness of the value of these poli­cies and demon­strates that hav­ing such poli­cies is impor­tant and sig­nif­i­cant enough to high­light in the CRDC.  The coali­tion let­ter also urged the Depart­ment of Edu­ca­tion to ask the edu­ca­tion units that have adopted a bul­ly­ing and harass­ment pre­ven­tion pol­icy to pro­vide a link to their pol­icy as part of their CRDC response.

A top pri­or­ity for the Anti-Defamation League is work­ing to cre­ate safe, inclu­sive schools and com­mu­ni­ties and ensur­ing that all stu­dents have access to equal edu­ca­tional oppor­tu­ni­ties.  Over the past decade, the League has emerged as a prin­ci­pal national resource devel­op­ing edu­ca­tion and advo­cacy tools to pre­vent prej­u­dice and big­otry. ADL has built on award-winning anti-bias edu­ca­tion and train­ing ini­tia­tives, includ­ing the A WORLD OF DIFFERENCE® Insti­tute, to craft inno­v­a­tive pro­gram­ming and advo­cacy to address bul­ly­ing and its per­ni­cious elec­tronic form known as cyber­bul­ly­ing.  ADL takes a holis­tic approach to address­ing bul­ly­ing and cyber­bul­ly­ing, track­ing the nature and mag­ni­tude of the prob­lem, devel­op­ing edu­ca­tion and train­ing pro­grams, and advo­cat­ing — at the state and fed­eral level — for poli­cies and pro­grams that can make a difference.

It will be incum­bent on ADL and our allies to work with schools and school dis­tricts to make sure schools and school dis­tricts are report­ing this data accu­rately – and using the data to improve the cli­mate for learn­ing for all students.

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