Tuesday, March 31, 2015

Isn't a "Religious Freedom" law, by definition...

...against the First Amendment? I mean, the language is "prohibits the making of any law respecting an establishment of religion...."

Via the Herald-Leader's Kentucky.com

As a lifelong liberal Democrat, former state treasurer Jonathan Miller was very disturbed to hear about Indiana's recently signed religious freedom law, which opponents fear could be used to discriminate against gays and lesbians.

Basketball luminaries such as Charles Barkley have said the NCAA Final Four shouldn't be held in Indiana because of it, and NCAA President Mark Emmert said Monday that his Indianapolis-based group might have to rethink holding major events there.

But on Monday, Miller was still looking for tickets to UK's game against Wisconsin on Saturday in Indianapolis.

"As a good progressive and a good liberal, I live in a state with a religious freedom law," he pointed out. "It's quite disturbing, but I'd be a hypocrite if I boycotted Indiana when I don't boycott my home state."

Kentucky passed its religious freedom law two years ago to ensure that government action does not interfere with religious belief protected by the First Amendment.

It, too, was bitterly fought over, and even vetoed by Gov. Steve Beshear before legislators overwhelmingly overrode the veto.

That bill emerged after a group of Amish refused to place orange safety signs on the backs of their buggies, saying the rule infringed on their religious freedom. Opponents warned that the law might be used instead to legalize discrimination.

The law has not provoked a rash of lawsuits in Kentucky, said Martin Cothran, a senior policy analyst for the Family Foundation of Kentucky, which helped shepherd the law through the General Assembly in 2013.

"All these charges that the apocalypse is going to come once these laws pass, that has never happened," Cothran said.

But the law has been cited in an appeal of a long-running discrimination case in Lexington.

Last year, the Lexington-Fayette Urban County Human Rights Commission determined that Hands On Originals violated the city's fairness ordinance and discriminated against the Gay and Lesbian Services Organization of Lexington when it refused to print the group's Lexington Pride Festival T-shirts in 2012. The company argued that its Christian values disagreed with the T-shirts' message. The company appealed the commission's decision in Fayette Circuit Court last year.

The appeal, prepared by Jim Campbell, senior legal counsel with Alliance Defending Freedom, in Scottsdale, Ariz., argues that the commission's ruling — including an order requiring company employees to undergo diversity training — puts too much of a government burden on the owner's deeply held religious belief, therefore violating the state law. The appeal also argues the commission did not prove "compelling governmental interest" in infringing on the owner's refusal to print the shirts.

That fight between state laws and local fairness ordinances will continue, experts say.

Kentucky and 19 other states have religious freedom laws; Kentucky also has seven cities with fairness ordinances — Louisville, Lexington, Vicco, Covington, Morehead, Frankfort and Danville. Indianapolis also has such an ordinance.

It's not clear whether the state law could be used to overturn a city ordinance or vice versa, said Joe Dunman, a Louisville attorney who is part of the legal team in Bourke vs. Beshear, the case attempting to strike down Kentucky's ban on same sex marriage that is now before the U.S. Supreme Court.

As Dunman pointed out, in neither Kentucky nor Indiana is it illegal to discriminate against gay people, but many religious freedom advocates worry that those states will someday enlarge their constitutions' civil rights protections to include sexual orientation.

Still, the religious freedom laws are not "get out of trouble free cards" for potential discriminators, Dunman said. Those people would have to prove "a substantial burden" on their religious freedom.

There's also a federal version of the religious freedom law, which has had a bigger effect. In a decision involving Hobby Lobby last year, the U.S. Supreme Court agreed with the corporation that the federal health-care law's mandate for employers to provide birth control to employees would violate the company's religious freedom.

Amber Duke, spokeswoman for the ACLU of Kentucky, said the Indiana law seems like a reaction to the growing marriage equality movement. In the two years since Kentucky passed its religious freedom law, many courts have struck down same-sex marriage bans.

"As a country, we seem like we're in a different place than we were a couple of years ago," she said. "As marriage equality gains ground, there have been more religious freedom bills coming up in reaction."

But, she said, the vague language in most religious freedom bills will mean that courts ultimately decide whether state laws outweigh city fairness ordinances.

Chris Hartman, director of the Kentucky Fairness Campaign, said UK fans should feel fine about heading west to the Final Four.

"What we say to fans is go to Indianapolis, have fun and if you are the victim of discrimination, file a complaint with the Human Rights Commission there," he said. "We think the fairness rules would stand up even against the freedom of religious laws."

As for Miller, he hopes the religion of basketball can outweigh disputes over religious freedom.

"I really doubt that everybody who voted for this is prejudiced against gays and lesbians," he said of the laws in Kentucky and Indiana. "I think they wanted to take a strong stance for religious freedom. I don't think everyone intended to discriminate, but my great fear is that is the intent."

Image via Insider Louisville. Here I'm using the map which shows the counties that Mitch McConnell won and lost in the last election as a metaphor for the places that have Fairness Ordinances in the state (the blue) vs. the rest of the state.

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