Gay hatred and Indiana's Religious Freedom Restoration law.

Wikipedia defines Bigotry as: Bigotry is a state of mind where a person obstinately, irrationally, unfairly or intolerantly dislikes other people, ideas, etc.[1][2] Some examples include personal beliefs, race, religion, national origin, gender, disability, sexual orientation, socioeconomic status, or other group characteristics.

The Urban dictionary defines a Bigot as: a prejudiced person who is intolerant of any opinions differing from their own.

Wikipedia defines reason as: the capacity for consciously making sense of things, applying logic, establishing and verifying facts, and changing or justifying practices, institutions, and beliefs based on new or existing information. Reason or "reasoning" is associated with thinking, cognition, and intellect. Reason, like habit or intuition, is one of the ways by which thinking comes from one idea to a related idea.

Bias occurs when a person defines an argument in terms that marginalize an argument in opposition, and ignores, or minimizes evidence contrary to the position they advance. Bias is often difficult to acknowledge in one’s own argument, and especially when that one is passionate about (believes very strongly in) that position. (See: cognitive dissonance)

Today, many American's who favor gay rights and gay marriage, are mis-characterizing Indiana's new law, either out of ignorance, or their own personal bias against religion. Hatred of religion is every bit as much bigotry as the hatred that those same people accuse others of having against homosexuals.   

APPLIED TO CURRENT EVENTS

The Indiana legislature recently passed a Religious Freedom Restoration Act (2015) which affirms that religious beliefs are protected by both State and Federal law, and that a governmental entity may not substantially burden a person's exercise of religion, or violate a person’s religious convictions, unless in furtherance of a compelling governmental interest; and then, only by the least restrictive means.  This language, both in the letter and spirit of the constitution is consistent with 250 years of American jurisprudence.   The law does not create a new right, nor re-define or expand an existing right. It does not create a "right" to discriminate" based upon religious beliefs but rather provides clarification and acknowledgement that religion continues to enjoy a protected status that government is obligated to respect.

The full text of Indiana's "religious freedom" law may be viewed here:   http://www.indystar.com/story/news/politics/2015/03/27/text-indianas-religious-freedom-law/70539772/

The relevant portions (what is creating all the stir) are these:

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity 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.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.

THE CHARGE(S) By the LEFT  (The cause of the hysteria)

(1)   the law could lead to discrimination against gays and lesbians.

(2)   Indiana’s law, and all similar legislation is motivated by hatred of gays and/or gay lifestyle.

(3)   Gay rights have been established by the Supreme Court, which trumps any state law on the subject.

DEFENSE

There is nothing in the language of this law that creates a right to deny services to anyone.

The law protects the specific, historic, unambiguous Constitutional right for Americans to exercise their religion and act on their conscience.

For an assertion of "right" to be enforceable by government, it must first have been created by a legitimate process (i.e. legislative). Rights cannot (legitimately) be created by the Supreme (or any other) court. (See Justice Scalia’s Dissent in Windsor [2013]).

There IS NO specific, historic, unambiguous Constitutional “right” for same-sex unions, whether called “marriage” of something else.   Such an assertion of “right is based upon “wishful thinking” by a very small minority of U.S. citizens who find support for their position through the judicial branch, rather than by the legislative process and the support of the majority.

The issue is NOT about “hating” gays.  It is about people being able to choose which of two competing values systems or moral sets to live by. People do this all the time without “hate” being an issue.  One group accepts only the traditional definition of “marriage” as between a man and a woman, and chooses to embrace traditional marriage as an institution worthy of social acceptance. This group believes that traditional marriage is more likely to produce a stable society (and therefore worthy of government sanction) than a homosexual union. This position has been the official government position since the founding of this country, and was even specifically articulated through legitimate legislative process as the law of the land by the Defense of Marriage Act in 1996.

The other group declares that homosexual couples have a “right” to a civil union and to call it a “marriage” just the same as couples united in a heterosexual marriage. This position was affirmed by the Supreme Court in United States v. Windsor, a five/four split, in 2013, when part of the DOMA was overturned on the basis that it violated the right to liberty and to equal protection for gay couples.

In a recent blog from NPR, the author noted:

“This court ruling, of course, delights the proponents of gay marriage.  The ruling means that more than 100,000 gay and lesbian couples who are legally married will be able to take advantage of tax breaks, pension rights and other benefits that are available to other married couples. (SOURCE: http://articles.latimes.com/2013/jun/26/news/la-pn-doma-supreme-court-ruling-20130626 )  The decision leaves in place another provision in the law that says no state is required to recognize gay marriages performed in any other state. That provision was not under challenge.

Speaking to the recent Indiana law, Josh Blackman, a constitutional law professor at South Texas College, notes in National Review that while some read the federal provision as pertaining only to government, it has actually split federal courts. "Private parties," he points out, "had brought suits against corporations."

For example: "[T]he D.C. Circuit held that the Catholic University of America could raise RFRA as a defense against a sex-discrimination claim brought by a nun and the Equal Employment Opportunity Commission alike."

That said, the Indiana law explicitly wipes away any ambiguity. ( SOURCE: http://www.npr.org/blogs/itsallpolitics/2015/04/01/395613897/sorting-fact-from-fiction-from-politics-on-the-indiana-law  )

SCALIA’S DISSENT IN WINDSOR (2013)

Writing for the dissent in United States v. Windsor, Justice Scalia wrote: “This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.”

Scalia Continues:

The Court is eager—hungry —to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role. The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff ”) would “become only secondary to the President’s.” Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.”

 That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

So there you have it.   Another example of the overreach of a non-elected judiciary, by the narrowest of margins, acting again as the captains of societal evolution, rather the much narrow role of judges, to which they swore their oath. (Read the entire case, and especially Justice Scalia’s well-reasoned dissent, at https://www.law.cornell.edu/supremecourt/text/12-307 )

Scalia’s dissent goes on to say:

“The “judicial Power” is not, as the majority believes, the power “‘to say what the law is, giving the Supreme Court the “primary role in determining the constitutionality of laws.” The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons.

In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free standing role at all.   Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. Lujan v. Defenders of Wildlife , 504 U. S. 555, 560 (1992).

We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer.

The majority brandishes the famous sentence from Marbury v. Madison , 1 Cranch 137, 177 (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Ante , at 12 (internal quotation marks omitted). But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is—much less that its responsibility in that regard is a “primary” one. The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “

Those who apply the rule to particular cases , must of necessity expound and interpret that rule.” 1 Cranch, at 177 (emphasis added). Only when a “particular case” is before us—that is, a controversy that it is our business to resolve under Article III—do we have the province and duty to pronounce the law.”

Some courts have agreed with Scalia that the Windsor decision lacked clarity and proceeded to interpret it with little reference to federalism, just as Scalia had predicted.[109] When ruling Oklahoma's ban on same-sex marriage unconstitutional on January 14, 2014, in Bishop v. Oklahoma, U.S. District Judge Terence C. Kern described the decision as the culmination of a process: "There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one". (Wikipedia)

SUMMARY

Gay rights activists are joined by those who feel that true love should be given the same respect between any two people, or for that matter, any two living creatures, or for that matter, any living person and some inanimate object (robot, sex toy, I-phone, or???)  When we make national policy decisions on the basis of our deep feelings, we end up with bad laws (i.e. prohibition).  When we create “rights” requiring all other persons to “honor” or “respect” ALL unions based upon “love” then no other rights can ever be asserted (apparently) if they conflict with the absolute right to “love” whomever or whatever) we want. This is a sure recipe for disaster, for few things life are as certain as the uncertainty of emotions.  Policy should always be rooted in reason, and reason always requires a process.  Passion should never form the basis for policy, for while passion may follow reason, the reverse is not true: reason will not follow passion.   

Once we eliminate the traditional definition of marriage and we degrade the traditional concept of marriage to be whatever is the object of our affection, then the historical, traditional basis of social order is threatened.  Whether anyone thinks that is a good idea or not, any such shift must follow established legislative processes and must require majority public support. Members of the judiciary are NOT elected representatives of “we the people” and their authority is limited to the cases that are before them. Emotion is NOT the proper basis for a policy shift.  Government-created rights are the result of deliberate legislative actions, and all such laws may be ONLY passed in accordance with constitutional provisions.

John A. Sterling, MA, JD

Copyright 2015