Monday, March 30, 2015

Indiana: Protecting its people from the tyranny of equality since 2015

Every so often, I discuss about topics outside of Canadian labour and employment law, either because I find a topic interesting, or because I find it important.

This is the latter.

Indiana Governor Mike Pence signed a bill into law which is ostensibly to 'protect religious freedom'.  In essence the bill protects from 'substantial interference' by the state in a person's exercise of their religious belief, and allows people to defend against legal actions on the basis that their conduct was an exercise of religious freedom.

What Does the Law Do?

There are some interesting distinctions to be drawn at the outset:  There's some question as to exactly how far this law extends.  On its face, it only appears to deal with 'government action', in a quasi-constitutional way.  In other words, the government can't force you to do something inconsistent with your religious beliefs, or to abstain from doing something mandated by your religious beliefs, unless a certain test is met to justify the constraint.

Seems pretty innocent, no?

And the governor has argued that it "does not apply to disputes between individuals, unless government action is involved."  Sounds nice, but it glosses over the fact that such disputes invariably involve government action.

I'm not an Indiana lawyer, and there are certain gaps in my knowledge as to the state of anti-discrimination laws in Indiana.  In general, however, Canada and the United States have some pretty fundamental similarities:  I'm entitled to exclude whomever I want from my private property, unless there's a law telling me I can't.  I can refuse service to, for example, anyone who parts their hair on the left.  There's no law to stop me from doing that.

In Ontario, we have the Human Rights Code.  I can't refuse to serve people because of their religion, sexual orientation, race, gender, disabilities, among others.  In Indiana, I don't believe that such a broad law exists.  They have the EEOC, which has similar impacts in employment contexts specifically, but doesn't affect provision of goods and services.  My understanding is that there are some county-specific anti-discrimination ordinances, of varying scope.

Where such an ordinance doesn't exist, it would appear that it may already be legal to refuse service on the basis of sexual orientation.  Where such an ordinance exists, the ordinance would absolutely be subject to the religious freedom law, forcing the question of "Does making me serve homosexuals violate my religious freedom?"  And, if so, is that obligation justified by a compelling interest of the state?  It's not clear whether or not these ordinances will hold up under the new law (or to what extent), but there's little question that the goal of this statute was to undermine them in respect of gay marriage.

Religious Freedom to Refuse to Serve

In general, I find it laughably absurd that businesses claim that it offends their religious freedom to be required to serve others.  (Though it is not lost on me that I have a certain luxury to be able to laugh at it.)

It is fairly easy to conceive of hypothetical exceptions to this, particularly in gender contexts:  Suppose my religion prohibits me from seeing unrelated women in a state of undress, yet I'm a professional tattoo artist.

Such hypotheticals are generally pretty far-fetched, and very seldom occur.  (There was the one case in Toronto some time ago where a Muslim barber refused to cut a woman's hair on religious grounds.  That probably wouldn't amount to a legal defence for him, and whether or not it should, in the particular context, is an issue about which reasonable people can disagree.)  Regardless, those issues are not generally what we're talking about when looking at these 'religious freedom' laws.

To put it in perspective, Indiana banned same-sex marriage until less than six months ago, when the Supreme Court of the United States refused to hear an appeal from a decision finding the ban to be unconstitutional.  The timing is probably not a coincidence.

We are also not talking about, for instance, a Catholic Priest refusing to officiate a same-sex marriage within the Church.  Churches typically fall within well-established exemptions to anti-discrimination laws.  I don't think there are many who would seriously argue that the state should compel religious institutions to recognize gay marriage.

So we get into the grittier questions when we start talking about fundamentally secular businesses and institutions refusing service on religious grounds, where there are basically three classes of cases being discussed:  (1) provision of goods and services completely unrelated to weddings; (2) wedding industry services; and (3) solemnization by secular officials.

Provision of Goods and Services Unrelated to Gay Marriage

Before we wander into the arguably-muddier waters of services related to same-sex marriages, let's look at the general proposition of denying services to gays - for example, where a restaurant or movie theatre turns patrons away because of their sexual orientation.

If a restaurant put up a "gays not welcome here" sign on their door, my first instinct would be to mock it.  If a gay person walks in, how would restaurant staff know?  Do they administer a heterosexuality test at the door?  Would that be sanitary?

Besides, to the best of my knowledge, the religious folks objecting to gay marriage still insist that homosexuality is a transitory lifestyle choice, and not a fundamental aspect of a person's identity.  (Much easier to justify condemning someone for what he does, rather than what he is, I suppose.)  The sin isn't "being gay" (there's no such thing, according to homophobic religious dogma); the sin is to engage in homosexual carnality.  So one would think that, unless the gay person is engaging in homosexual carnality in the restaurant (which is probably a health code violation), the person's just another person.  Maybe a sinner, but...well, aren't we all?

After all, even a man who self-identifies as gay hasn't necessarily 'known' (to use the biblical term) another man.  So even if your problem is 'the sins your patrons engage in elsewhere', the question remains:  How do you know?

But okay, let's move to the practical reality of such an exclusion:  A scenario where a same-sex couple walks in, engaging in conduct that reasonably makes people think they're a couple - say, holding hands.  It isn't at all hard to imagine a response of "We don't want that kind of thing here; this is a family restaurant with good old-fashioned Christian values!"

There is no plausible argument, even within Christian dogma, that selling food to a gay person is inconsistent with your religious belief.  (There may be an argument rooted in Leviticus that being prohibited from executing gay men violates your religious beliefs, but I think and hope we can all agree that this argument would be pretty absurd in modern society.)

So let's look at what's really going on here.  People are uncomfortable with homosexuality.  I get that.  I'll admit that I'm a bit uncomfortable with it too, but frankly I think that discomfort is just a natural result of thinking too hard about what goes on in somebody else's bedroom.  So the restaurant owner wants to maintain a 'Christian' environment, where Christian families can eat without exposing their kids to gay couples.  (Because, let's face it, your average homophobe doesn't particularly get the nuanced distinction that gay couples aren't actually sinning in the act of sitting at a table together eating a meal.  Or in the act of, you know, existing.)

The only way you could frame this argument in any sort of cogent way is in the sense of "We don't serve sinners here".  As noted, however, we're all sinners, so such a policy, uniformly applied, would result in a pretty empty restaurant.  Even if you narrowed the scope to violations of biblical sexual purity (or, that is, being presumed to have offended biblical sexual purity laws), that still sweeps up most of society in this day and age.  Even in religious communities, 'waiting for marriage' is becoming an increasingly rare phenomenon.  (A couple years ago, a study came out finding that 1 in 200 American mothers claimed to be a virgin - and no, we're not talking about assisted reproduction technologies.  Of those supposed virgin mothers, 31% had taken a chastity pledge, usually for religious reasons.)

Even then, however, it would be really hard to ground such an argument, that you are not permitted to conduct business with certain classes of sinners, in any sort of scripture or mainstream religious teaching.

"It's Against My Religion to Put Two Grooms on the Wedding Cake"

This is downright silly, frankly.  Yet it happens.

The reason it happens isn't because anyone's religious beliefs actually have any bearing on what cakes they can make, with what decorations, or for what occasions.  A wedding cake is not a religious artefact.  No, this happens because of simple bigotry.  Full stop.  It's a rule of exclusion with no good faith religious rationale, rooted in the fundamentally political opposition to the legalization of same-sex marriage.

(The case I linked above noted that the bakery, with a policy of not serving baked goods in connection with same-sex marriages, nonetheless once prepared a wedding cake for the 'marriage' of two dogs.)

There's no religious significance to preparing a cake, and at the end of the day the fact that the cake will be used in connection with a same-sex marriage does not in any way affect the character of your duties in making it.  It is no different, in any way, from the more general category I examined above.

Imagine that a baker who happened to be Jewish refused to sell a birthday cake to a parent because the main course was going to be cheeseburgers.  It makes about as much sense as this, really.

Solemnization by Secular Officials

This seems to be the one that gets the most sympathy:  If I'm performing City Hall weddings, and a gay couple comes before me, and I believe that their marriage is an affront to my personal religion, then shouldn't I be able to refuse to do it?

Simply put, no.  Your non-compliance with my religious values is not a violation of my freedom of religion, no matter how distasteful I may find it.

Likewise, if part of a teacher's religious structure of beliefs includes that women shouldn't be educated, that doesn't justify the teacher refusing to teach girls.  If an election official didn't believe, as a matter of religion, that women should be entitled to vote, that wouldn't justify him turning female voters away.

Solemnization of a civil marriage is not a religious role.  People who do it aren't priests, and the marriage has no meaning 'in the eyes of God' (as my Catholic relatives might put it).  That's true regardless of whether the individuals involved would be eligible for a church marriage.  It's simply a secular legal state of being, and for the officials to project their own religious views onto the union is not only inappropriate, but actually offensive to the people getting married, who presumably don't share those views.

Try to imagine, for a moment, that you're a Christian-raised atheist who goes to the City Hall to get married, and the person solemnizing the wedding was a Muslim Canadian...and he started questioning you in such a way as to make sure that your marriage met the requirements of his faith, before he would solemnize your union.  (That's exactly the kind of scrutiny that many people have non-religious ceremonies to avoid.)

Furthermore, I have never heard this objection made in context of any other ground of religious ineligibility to marry.  And it isn't as if other bases of religious ineligibility are rare - a great many couples get married in secular ceremonies simply because the couple's church of choice won't officiate the marriage.

Phrases I've never heard include:
"As a Catholic, I can't officiate this ceremony because she was previously divorced."
"As a [x], I can't officiate this ceremony because only the bride is an [x], and we don't permit interfaith marriages."
So on.

The objection to marrying same-sex couples simply reeks of bad faith, and because the solemnization has no religious significance in the first place, just doesn't make sense.


The whole religious argument seems to be premised on the notion that legalizing gay marriage somehow impacts the religious institution of marriage.  It doesn't.  It can't.  Because religious laws do not turn on secular laws, and because the secular legal regime expressly eschews any connection to religious laws.

People feel that the ability of two men to get married is somehow offensive to their religious rights.  This is totally nonsensical.  It would be like Muslim and/or Jewish groups arguing that the pork industry is an affront to their religious freedom.  To which the rest of us would respond:  You have every right in the world to refrain from eating bacon and pork sausage.  But we don't share your views; we don't have to share your views; and we'll eat as much bacon as our coronary arteries will allow.

So, to those of you who somehow feel aggrieved by the granting of marriage equality rights to people who are not the same as you...get over it.

As I said before, the exact impact of the law isn't yet clear.  But its purpose is almost certainly connected to same-sex marriage.  It's clearly intended to do something: Governor Pence has argued that it addresses government 'overreach', but the reality is that there already is a constraint, built into the First Amendment, on government overreach into the free exercise of religion.

It's hard to imagine what 'overreach' Governor Pence is concerned about, unless it's the overreach entailed in requiring the people of Indiana to treat homosexuals with the respect and dignity to which every human being is entitled.

Indiana's legislature once famously attempted to redefine pi and to 'square the circle', because, you know, math is hard, so let's make it easier by legislative fiat.  This is worse.  I support the various calls to repeal Indiana's so-called religious freedom bill.