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March 31, 2015

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

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

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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