When It Isn’t All About You – The Indiana Law

April 7th, 2015

(Links are not posting reliably so please excuse the URLs in the post used for proper attribution. I’ll be editing older posts for the same purpose.)

Many states are seeking to reprise Federal restatements about religious freedoms. These state-by-state activities pose an urgent question. Why do legislators at local levels believe that kind of repetition to be important? The latest brouhaha is in the state of Indiana where Governor Mike Pence signed the “…Religious Freedom Restoration Act (RFRA), which states that a “government entity” cannot “substantially burden” what is broadly classified as “a person’s exercise of religion.” The quote is from article 9 of that law, the entirety of which bill may be read from this Washington Post article:


The answer is quite simple. In an era that is openly acknowledged in many circles to be “post-constitutional”, states would have an urgent need for their own courts to be bound by regulations as the Federal court system becomes less available to the average person. I am a minority in the USA and have followed the discussions about the issue from here in the Middle East, where religion is of primary import in terms of regional identification and law. Many synagogues are closing in the USA and others experiencing vandalism with the rise of general unrest, sometimes denied by enforcement agencies as targeting a religious group. In Israel however, the courts may not make rulings that interfere with the ability of Jewish Israelis to observe Jewish traditions so there is no conflict of interest between secular and religious lawmaking in the Parliament (Knesset).

If some provisions in the Constitution, like the separation between Church and State, requires repetition, why would that be regarded as threatening to minorities? Humans and corporations are protected under numerous statutes. However, those who relate to some form of religious identity need more reassurance than that to be found in an article of a frequently ignored document signed in 1776.

First amendment rights don’t seem adequate when ministers are demonized for speaking about legislative matters in Texas. The problem is that religion doesn’t speak for itself but is dependent upon the actions of those who hold to those ways of life. Strangely, the damage done thus far by the law happened to a business that merely answered a hypothetical question, instead of preparing for the day action would be required. Who caters weddings through a pizzeria anyway?

As far as bakeries go, I’m willing to bet that if a pastry chef refused to provide a cake for the wedding of a 14 year old on moral grounds, they’d be recognized in a positive light. Businesses make decisions all the time about their actions, risking boycotts just by dint of the posters they put in their windows at election time.

The Jerusalem Post had an interesting article about the Indiana law from the non-business viewpoint. My business hackles rose as I thought about those offering services that are NOT discriminatory but TAILORED to meet the needs of a type of client. Are saloons discriminatory for not serving liquor to religious Mormons? No. Religious Mormons refuse to order drinks. Are Mormons discriminating against bars in need of their dollars? Not as long as consumers have the right to determine that some products are unsuitable for their use. Vendors should have guidelines that free them from performing an act against their mission statement (all companies have those), none of which proscribe them from selling products to any buyer entering their stores.

Laws of this nature have a purpose. Some doctors are refused employment in hospitals because they won’t perform abortions. Still, those physicians do not lose their medical licenses and hospitals aren’t forced to employ them if they fear a patient might be refused a service they are lawfully allowed. What is really an undue burden outside of the medical arena? An undue burden is placed upon a Mosque if demands are made to serve ham at a catered event, a food prohibited under Halal laws for that faith. No court should have to intervene for a refusal in that quarter, even if their non-profit status makes them open to claims of ‘free access’ by IRS rules.

The government can determine that the power vested in clergy by the state and by their non-profit status entitles regulation within those duties performed. Without separation of powers, they can use discrimination as a reason for any publically licensed individual to perform their defined functions. They just haven’t ordered the clergy to perform interfaith or gay marriages yet or give up their licenses to register religious marriages with the state.

It works two ways again. Some pastors say they have a religious duty to sanctify gay relationships: http://www.thedailybeast.com/cheats/2014/04/28/nc-clergy-sues-to-perform-gay-marriage.html

Here, it works the opposite way in England: http://www.charismanews.com/world/40480-gay-couple-sues-church-that-won-t-host-same–weddings

It isn’t about marriage itself but who defines it as a civil right versus a religious rite.

The Post printed my edited letter (below), looking at this law from a business viewpoint rather than stemming from a wellspring of hatred.

Indiana bill

With regard to “Thousands march in Indiana to protest law seen as targeting gays” (March 30), I would like to see a follow- up news item that looks solely at the “business” of being a rabbi there.

Rabbis in Indiana, as elsewhere, are vested with the legal power to marry couples. As you know, those who follow Halacha must discriminate among applicants.

Should these rabbis have to perform marriages between Jews and non-Jews because a law states they cannot refuse to serve anyone who approaches them for a service they are marketing? Should a wedding couple be allowed to hire a non-kosher caterer to use a rented synagogue hall? After all, if a synagogue is a non-profit corporation, all taxpayers are presumed to have the right to employment and access.

If there were no protections under religious freedom laws, synagogues might have to give up their non-profit status, and rabbis would have to advise couples to hold a second ceremony before a judge.

Barbara Rubin
Jerusalem, Israel

Categories: Articles, Jerusalem Post, Letters, Litigation, Newspaper Commentary, Published, Washington Post

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