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Chris March 30, 2015

Check out this state law concerning religious freedom

(a) The state or any political subdivision of the state shall not burden a person’s exercise of religion under section 3 of article first of the Constitution of the state even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) The state or any political subdivision of the state may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.

(c) A person whose exercise of religion has been burdened in violation of the provisions of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the state or any political subdivision of the state.

(d) Nothing in this section shall be construed to authorize the state or any political subdivision of the state to burden any religious belief.

(e) Nothing in this section shall be construed to affect, interpret or in any way address that portion of article seventh of the Constitution of the state that prohibits any law giving a preference to any religious society or denomination in the state. The granting of government funding, benefits or exemptions, to the extent permissible under the Constitution of the state, shall not constitute a violation of this section. As used in this subsection, the term “granting” does not include the denial of government funding, benefits or exemptions.

(f) For the purposes of this section, “state or any political subdivision of the state” includes any agency, board, commission, department, officer or employee of the state or any political subdivision of the state, and “demonstrates” means meets the burdens of going forward with the evidence and of persuasion.

That is not the controversial religious freedom bill that was just passed and signed into law in Indiana. That is Connecticut’s religious freedom law that has been in effect for twenty years and codified in Conn. Gen. Stat. Sec. 52-571b. I don’t recall what public opinion on our bill was back then but there doesn’t seem to be much about it right now.

Opponents of Indiana’s law claim that it will enable businesses to discriminate against gay people. In the past couple of years we have seen quite a few sob stories about bakeries being forced to violate their religious beliefs and make wedding cakes for same-sex couples. Arizona attempted a bill like this last year but it failed. Others have popped up in other states’ legislatures (try to guess which states).

Proponents of the bill say that an act like it is needed for some reason and that it has nothing to do with wanting to discriminate against gay people. On its face maybe not. The timing is very suspect. These things just happened to pop up during the expansion of same-sex marriage in states that fought same-sex marriage. They also happen to be supported by people who are openly against same-sex marriage and support conservative Christian religions. Some of these characters consider it hypocritical that opponents are not saying anything about the other states that have religious protection legislation.

So what’s different? Well, beyond the timing and supporters, Connecticut prohibits discrimination on the basis of sexual orientation. Our public accomodations law expressly prohibits discrimination in public accomodations on the following grounds: “age, ancestry, color, gender identity or expression, learning disability, marital status, mental disability, intellectual disability, national origin, physical disability, race, religion, sex, including pregnancy and sexual harassment, gender identity or expression, and sexual orientation.” That’s quite the list. Connecticut’s relgious freedom law cannot be used as the basis for discrimination.

Public accomodations laws came into being with the Civil Rights Act of 1964 as a way to curtail private segregation and were based on the common carrier (trains, buses, etc.) from earlier. Brown and other landmark decisions really applied to only government action. To tide the wave of private businesses discriminating, the Title II of the CRA, authorized by the 14th Amendment and interstate commerce power “prohibits discrimination because of race, color, religion, or national origin in certain places of public accommodation, such as hotels, restaurants, and places of entertainment.” Sexual orientation is not yet part of the federal law. Most states have their own public accomodations laws but while some, such as Connecticut, do explicitly prohibit discrimination on the basis of sexual orientation, Indiana’s and many other states do not. To be fair, Indiana does have some protections for sexual orientation in employment and for state actions.

Indiana legislators are “scrambling” to fix the law after the backlash. The easiest thing to do would be to repeal it. I don’t see much need for a bill anyway because religious freedom is well-protected under the First Amendment and state and federal court decisions. Pence and his fellow legislative supporters insist that the law does not enable discrimination on the basis of sexual orientation. So write an explicit prohibition into the law (I bet it won’t pass). Or–even better–amend the public accomodations law to include sexual orientation with a section that the religious freedom law is not an exception. That should clear it up.

I previously wrote that the federal Religious Freedom Restoration Act shoule be repealed. I stand by that argument. Even with these laws, I do not see how religious beliefs are impacted by having to engage in your regular business. Wedding cakers and photographers were some of the public examples of the oppressed. What does that have to do with relgious belief or practice? Such a person wouldn’t be performing or entering into the marriage. There isn’t anything religious about making a cake for an opposite-sex couple. What about making a cake or photgraphing a couple for an opposite-sex wedding that is civil in nature with a city hall or justice of the peace ceremony? What about a wedding between two previously divorced persons? I do not hold any religious beliefs or belong or participate in any religion. Most of my familiy is or was Catholic and I did go to Catechism and confirmation class as well as a Catholic high school, university and law school. The Roman Catholic Church is not friendly to the idea of same-sex marriage (while I had long before dismissed the theology and chuch authority, the recent anti marriage equality efforts is what caused me to reject even the “Cultural Catholic” label). There were no lessons in any of that education (I admit that my attendance and attention in Catechism and confirmation classes were spotty at best but I did well in my academic theology classes) saying that it was sinful or even improper to do work for people who oppose church rules. Additionally, I have not seen Catholic groups in favor of these types of laws. Personally I think that the people who do support this legislation and truly want to discriminate against gays really aren’t feeling their religious beliefs burdened but just want to be able to legally treat poorly people they do not like.

Churches can and do discriminate. Catholic churches, for instance, do not have to perform same-sex marriages just as they do not have to administer the other sacraments to non-Catholics. Churches and individuals are free to decide and practice their beliefs and will remain free to do so. Individuals are also free to decide with whom to associate. Businesses however must follow the laws and rules of the marketplace.