Thanks to a family friend, I have gotten the link to read over the new law that adds a set of changes to how the State of Indiana acts on Religious Freedom. You can take a look here for SB 101. The intent of this is merely to inform, and to recognize that this law since it has passed, is on questionable legal grounding. At the root of the problem is whether or not a business can decline a transaction via discrimination of the customer on the grounds of religious belief.
Here is a simplification of the law. I know some language in the text I have omitted, and some texts I have expounded on. That is because some language of the law is simply that, language. It merely explains how certain words in the following sections will be used or defined. He who names names, wins. Without any further ado, here’s the new law that was signed by Governor Pence today.
Section 1: This law will affect the way government carries out the law
Section 2: No government entity is to be made exempt from this law, unless it has been stated within the law.
Section 3: The law deals with the first amendment and the Indiana Constitution which both prohibit the establishment of a state religion. The law deals with benefits from government.
Section 4: Defining Demonstrates (Seriously)
Section 5: Exercise of Religion includes any exercise of a faith, whether or not this exercise is central or even established to the tenants of the espoused faith.
Section 6: Defining what is a government entity (Seriously)
Section 7: A person is an individual, a religious organization of some variety or group organized for religion, a company, or a corporation; whether small, limited, joint stock, large, or even Wal-Mart sized. These persons must be able to be sued or can sue, and exercises practices that are compelled or limited by some religious belief. The individuals who define the beliefs of the ‘person’ are those individuals who control ownership in substantial part, whether profit or nonprofit.
Hobby Lobby’s Supreme Court case defined that certain businesses, as well as organizations of profit or non-profit capacity could in fact, have access to the First Amendment rights. Meaning that a company Wal-Mart sized could decide to express its values through money and information releases, put out petitions to influence the state in its favor, assemble a group of citizens to its cause to support its cause, embrace and force upon its employees a set of standards that comported with the religion, regardless if the person hired was of the same religious doctrine.
Section 8a: a government entity may not ‘substantially’ burden the right of a person to exercise their religion, even if the burden could be an occurrence from a rule of general applicability.
What that means is that the law is not allowed to burden a religious person, even if the rest of society is beholden to that law.
Section 8b: The government does have the ability to burden your religious rights if that would be in the government’s interest, and if this decision would be the least restrictive option possible to further the government’s interest.
The government does not jeopardize the rights of individuals, event those immune to some laws, unless the government feels it benefits from doing so and can argue that jeopardizing one’s right, say to not sell a cake to a homosexual couple, and would be in the best interest of the government. Basically, unless Indiana thinks it would be beneficial to Indiana, Indiana does not have to defend or protect some citizens from the exercising of rights of other citizens.
I could hyperbole an argument in which the state of Indiana does not criminalize my mass murder of the population because I might be able to prove its part of my religious worship and that it would be a non-benefit or punishment to the state to punish me for violating the laws. Additionally, Indiana would have to prove that imprisoning or executing me was the least restrictive method to stop my mass murdering and the exercising of my religious belief to mass murder the population.
Section 9: You may seek criminal or civil court cases to demand recompense for your right being hampered by the state. The government must take part if it’s violating the exercising of religious freedoms. However, if the state isn’t party to the trial, it may decide to intervene in any case it desires and choose a side.
Section 10: If you prove the government did a bad thing, you can seek compensation for their bad things.
Section 11: You cannot use this law to seek damages against a private employer, if you are a former or current employee, or were an applicant to that business.
Meaning this law is not intended to be used to sue businesses for discrimination in the hiring process. Instead, it’s meant to allow businesses or individuals the right to not carry out an action because it violates their personal religious view.
Should this law, which it will, be presented in a civil or court case, relevant hearings from the Supreme Court will apply. I could offer translations of both decisions I feel are important, if people feel they would be particularly helpful. Here is the Hobby Lobby Case. Here is the Citizens United Case.
For a fun case on religious freedom, you need a level of proof to your religious organization. Greetings Larson v. Valente. As for why there isn’t a government test for what counts as a religious belief, or what is considered HERESY, see United States v. Ballard.
HOWEVER, if I had to point to one case that particularly makes this law questionable, it is Valentine v. Chrestensen, which deals with commercial speech. The 1942 decision was based on the fact that advertising was not a protected form of speech, and that an individual’s right to free speech does not guarantee his/her business’ right to free speech. It will be interesting to see the legal battle that defends the right of Commercial Religion, or the ability to profit or discriminate business transactions in the name of business.