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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. 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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July 2, 2014 0

Thoughts on the 50th Anniversary of the Civil Rights Act


by Abra­ham H. Fox­man
National Direc­tor of the Anti-Defamation League

This arti­cle orig­i­nally appeared in The Huff­in­g­ton Post on July 2, 2014

Fifty years ago today, Pres­i­dent Lyn­don Baines John­son signed into law the land­mark Civil Rights Act of 1964. With the stroke of a pen, the fed­eral gov­ern­ment blot­ted out “sep­a­rate but equal,” put the power of the Depart­ment of Jus­tice behind deseg­re­ga­tion of pub­lic schools, and laid the foun­da­tion for racial, reli­gious and gen­der equal­ity in the workplace.

Despite the enor­mity of the change it ush­ered in, Rev. Dr. Mar­tin Luther King, Jr. hailed the leg­is­la­tion not as a vic­tory but as the “dawn of a new hope” and a “cool serene breeze in a long hot sum­mer” of racial oppres­sion. Dr. King rec­og­nized that the law did not mark the end of the strug­gle, but the begin­ning of fun­da­men­tal change.

A half-century later, the Civil Rights Act still stands as both a sig­nal achieve­ment and a reminder of the work that lies ahead for the attain­ment of true and last­ing equal­ity. The law dis­man­tled the edi­fice of “sep­a­rate but equal” in its most odi­ous form.

Today, the notion of a “Col­ored Only” drink­ing foun­tain seems alien and unthink­able. The Civil Rights Act changed more than the law; it changed atti­tudes. The recent down­fall of L.A. Clip­pers owner Don­ald Ster­ling demon­strates that the strongest enforcer of civil rights remains the court of pub­lic opinion.

In spite of the great progress that has already been achieved and the poten­tial for more, the promise of the Civil Rights Act has yet to be fully real­ized. The law autho­rized the Attor­ney Gen­eral to sue pub­lic schools for fail­ing to heed the charge of Brown v. Board of Edu­ca­tion to deseg­re­gate “with all delib­er­ate speed.” Today, an esti­mated 74 per­cent of African-American stu­dents and 79 per­cent of Latino stu­dents attend majority-minority schools.

Edu­ca­tion equity remains largely elu­sive. Less than one-third of schools serv­ing the most African Amer­i­can and Latino stu­dents offer cal­cu­lus. One-quarter of those schools do not even offer alge­bra II, 60 per­cent have no physics classes, and one-third do not offer chem­istry classes of any kind. Sixty years after Brown and fifty years after the Civil Rights Act, the work to close the edu­ca­tion equity gap continues.

Title VII of the Civil Rights Act required employ­ers to pro­vide male and female work­ers equal pay for equal work. But a sub­stan­tial pay gap per­sists. The first piece of leg­is­la­tion signed into law by Pres­i­dent Obama–the Lilly Led­bet­ter Fair Pay Act–makes it eas­ier for women to secure back-pay when they suf­fer years of unequal com­pen­sa­tion. In April, how­ever, another bill would have banned com­pa­nies from retal­i­at­ing against women for seek­ing equal pay. It was blocked in the Sen­ate. And, in Wal-Mart v. Dukes, the Supreme Court made it harder for female work­ers to band together to sue their employer for unequal pay, mak­ing it nearly impos­si­ble for women to wage costly lit­i­ga­tion bat­tles on their own.

For mem­bers of the LGBT com­mu­nity, who are not explic­itly included in the Civil Rights Act, mon­u­men­tal change is afoot. Today, in most states, work­ers can still be fired or denied a job sim­ply for being gay. But in the com­ing days, we hope and expect Pres­i­dent Obama will amend an exist­ing exec­u­tive order bar­ring employ­ment dis­crim­i­na­tion by fed­eral con­trac­tors to add sex­ual ori­en­ta­tion and gen­der iden­tity to the list of pro­tected categories–a move that will extend work­place pro­tec­tions to approx­i­mately twenty per­cent of the nation’s work­force. The order could pave the way for leg­is­la­tion that would pro­hibit employ­ers from dis­crim­i­nat­ing against LGBT individuals.

Dr. King famously said, “The arc of the moral uni­verse is long, but it bends towards jus­tice.” The Civil Rights Act changed the face of the nation, bend­ing the arc sharply on July 2, 1964.

But much work remains. On the 50-year anniver­sary of its pas­sage, let us reded­i­cate our­selves to the task of build­ing a fairer, more just society.

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