Follow on Google News News By Tag Industry News News By Location Country(s) Industry News
Follow on Google News | The Indiana RFRA "Fix" is Legal Gobbledygook - ExpertA Tale Told by Legislators; Much Sound and Fury Signifying Little if Anything
The first part of the fix - which reads "This chapter does not authorize a provider to refuse to offer or provide services [etc.] on the basis of race . . . sex, sexual orientation, gender identity, [etc] is largely illusory, because it sounds as if discrimination against LGBT folks in being prohibited. But since there is no state-wide law protecting against such discrimination, no authorization to discriminate on the basis of sexual identity is required, any more than authorization is needed to discriminate on the basis of height, personal appearance, etc. In other words, with or without the RFRA statute, and with or without the fix language, a bar virtually everywhere in the state could literally post a sign saying "No service to gay males, ugly lesbians, short men, or fat women" and it would all be perfectly legal. The second part of the fix - “This chapter does not establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services on the basis of race . . . sex, sexual orientation, gender identity, [etc]” - most likely applies to a legal action brought by an individual [e.g., a gay male] against a person or business as a defendant. But such civil actions are very rare, says Banzhaf, since usually a person discriminated against asks an agency to take legal action on his behalf. These would ordinarily be called "agency actions" or "enforcement actions" -not "civil action or criminal prosecution" The third part of the fix - "This chapter does not negate any rights available under the Constitution of the State of Indiana" - is meaningless since the legislature has no power to negate any rights of any kind whatsoever available under the state constitution. It is a tale told by legislators, full of sound and fury signifying nothing, says Banzhaf, who has won more than 100 anti-discrimination legal actions. What one thing the fix probably would do, says Banzhaf, would be to leave alone the protections already afforded to LGBT folks in the handful of Indiana jurisdictions where they now exist. This leaves gay advocates unsatisfied, because they have demanded a state-wide law protecting their rights. It would also leave many religious folks unsatisfied, since their interests would never under the statute be protected against the denial of services, even under the most compelling of circumstances. For example, in addition to forcing a conservative religious photographer to take pictures for a gay wedding, it could also require a Muslim wedding caterer to serve alcohol if the religious wedding ceremony required it. It might even require a Jewish wedding planner to assist in a wedding of two Palestinians, even if the vows included a pledge to support the Palestinian constitution. Finally, notes Banzhaf, it may be possible to get around the “fixed” law entirely. A baker could have a policy of refusing to sell a wedding cake with a statute of two men on top to anyone, regardless of their individual sexual orientation. Assuming the baker applies the same rule to gays and to a heterosexual best man who seeks to buy the cake, he technically might not be discriminating on the basis of sexual orientation. JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW Washington, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ End
| |||||||||||||||||||||||||||||||||||||||||||||
Account Phone Number