u*****a
发帖数: 9489 | 1 同性恋政治团体恨死这个法案了，他们说该法案会容许针对同性恋者的歧视。将军们议
一下？
昨天看电视，一帮人在新闻节目里讨论这个事，几个支持同性恋的评论员那个痛心疾首
的悲愤样子，看得我直想笑，不知道为什么，反正就是一种莫名其妙的喜感，哈哈哈。
Why Indiana's Religious Freedom Law Is Such A Big Deal
http://www.huffingtonpost.com/2015/04/01/indiana-religious-free
摘要：“ The goal is to give business owners a stronger legal defense if
they refuse to serve lesbian, gay, bisexual and transgender customers and
want to cite their faith as justification for their actions.”
If you’ve been following the controversy over Indiana’s new religious
freedom law, you might be confused about what it really says and what it
will actually do.
Some people describe the law as a “sword” that would allow discrimination
against same-sex couples. Others say it’s a “shield” that would give
people more freedom to follow the dictates of their faith.
Some say the law would give businesses more leeway to pick and choose which
customers to serve. Others say it won’t make much difference -- that even
with the law in place, virtually all businesses will end up behaving just as
they would have before.
Some say the statute represents a significant change in the legal landscape,
enacted at the behest of the Republican Party’s most conservative
supporters. Others say it is strikingly similar to existing laws, including
one that Congress passed with overwhelming bipartisan majorities and that a
Democratic president, Bill Clinton, happily signed more than two decades ago.
Which one of these statements is correct? All of them.
To be clear, there’s no real mystery about the purpose of the “Religious
Freedom Restoration Act,” which Republican Gov. Mike Pence signed last week
. The goal is to give business owners a stronger legal defense if they
refuse to serve lesbian, gay, bisexual and transgender customers and want to
cite their faith as justification for their actions. That is why groups
representing religious conservatives support it, standing behind Gov. Mike
Pence as he signed the bill last weekend. That is also why groups advocating
for LGBT rights, along with a slew of corporations and celebrities, have
protested the law’s enactment -- creating such uproar that Pence said on
Tuesday he was open to “clarifying” the legislation.
But intention is one thing, impact quite another. As legal experts pointed
out to The Huffington Post, even with the Indiana law in place, a business
owner refusing service to a same-sex couple might still lose a
discrimination lawsuit. It would depend on several factors -- among them how
the judge interpreted phrases like “compelling interest” and “
substantial burden.” The outcome could also depend on whether the alleged
discrimination took place in a city that has its own laws making such
discrimination illegal.
These factors hardly make the law inconsequential -- particularly now that
legislators in another state, Arkansas, have passed a similar statute and
sent it to their governor to sign. But Indiana's law may be more significant
because of what its sponsors were trying to do (and the grief they've
gotten for it) than for what they've actually accomplished.
The original impetus for religious freedom laws had nothing whatsoever to do
with same-sex marriage. Back in the 1960s, in a case called Sherbert v.
Verner, the Supreme Court established a basic standard for protecting the
free exercise of religion. The government could pass laws that affected free
exercise, the court said, only if it could demonstrate a “compelling
interest.” An example of such a compelling interest might be protecting
public safety -- or, following enactment of civil rights laws, preventing
discrimination based on race. (As Ian Millhiser has pointed out at Think
Progress, supporters of segregation sometimes claimed Christianity supported
separating people by race.)
But in a series of rulings from the early 1990s, federal courts allowed the
government to infringe upon Native American religious practices -- by, among
other things, withholding unemployment benefits from people who’d used
peyote. The Supreme Court reasoned that such laws were permissible because
they did not single out religious practices -- rather, they had neutral
language and just happened to affect certain faiths adversely. Congress
responded to these rulings by passing a federal religious freedom law. The
margins were huge (the Senate vote was 97-to-3) and Clinton signed it
without much fuss.
The federal religious freedom law basically restored the standard from
Sherbert, dictating that the government may not “substantially burden” a
practice of religion without a “compelling interest.” And even if the
government does have such an interest, the law said, it must advance that
interest in the “least restrictive” way possible. When the Supreme Court
subsequently ruled that the law could apply only to federal action, some
state legislatures passed their own versions. In other states, courts
determined that state constitutions already provided residents with similar
guarantees.
And that was more or less the last time these laws were a major topic of
public attention -- until a few years ago, when cities and states began
passing laws prohibiting discrimination based on sexual orientation and/or
identity. Today, 20 states and dozens of cities have such laws on the books.
But their spread alarmed social conservatives. It also created legal
tension in some places -- between, on the one hand, laws prohibiting LGBT
discrimination and, on the other hand, laws protecting the free exercise of
religion, which for some people includes faith-based rejection of
homosexuality.
One of those places was New Mexico. In a now-famous case, a gay couple sued
a photographer who refused to take pictures at a same-sex marriage ceremony.
(It was not an official wedding since same-sex marriage wasn’t actually
legal in New Mexico.) The photographer cited the state’s religious freedom
law as a defense. The state’s Supreme Court rejected that defense for a
specific reason. New Mexico’s religious freedom law, the court said, only
protected businesses from government action. It didn’t protect businesses
from lawsuits by individuals or other private parties.
That decision reverberated in the conservative world, and the architects of
the Indiana law very clearly had it in mind. Unlike the federal law and
almost every other state religious freedom law, the Indiana statute says
that businesses may use it as a defense “regardless of whether the state or
any other governmental entity is a party to the proceeding.” As University
of Baltimore law professor Garrett Epps noted in the Atlantic, that’s a
critical difference -- even if it’s just a few words. More than two dozen
law professors, many of them from Indiana University, made the same point in
an open letter to the state Legislature several weeks ago. Notably, state
House Democrats in Indiana offered an amendment clarifying that the
religious freedom statute would prohibit discrimination by businesses. The
Indiana Legislature as a whole rejected it.
But figuring out exactly what real-world impact this distinction (along with
a few others) will have is not so easy. As conservatives like John
McCormack of the Weekly Standard were quick to note, plenty of Indiana
business owners could discriminate against same-sex couples even before the
religious freedom law passed. That’s because Indiana is among the states
with no law prohibiting such discrimination or identifying the LGBT
community as a special class, like racial minorities or people with
disabilities, that deserves special legal protection. Absent such laws,
business owners are generally free to serve -- and not to serve -- whomever
they want.
Of course, several Indiana cities, including Indianapolis, actually do have
laws barring discrimination based on sexual orientation. And it’s in those
places that the new law could give business owners protection they didn’t
have before. But some legal experts aren’t sure whether, if faced with
cases from those municipalities, Indiana state judges would even rule for
the business owners. For example, while state laws generally trump local
laws, a state judge might nevertheless decide that a city’s ordinance
banning LGBT discrimination qualifies as a “compelling interest” -- enough
to make such discrimination illegal, even with Indiana's RFRA in place.
“What the RFRA does is potentially give a defense to a business owner that
wants to discriminate against a gay customer … that’s the thing of concern
,” says Sam Bagenstos, the Frank Millard Professor of Law at the University
of Michigan. “Now, whether it would actually have that effect is a little
less clear.”
“Even if a RFRA is on the books, a state can still override a religious
claim if it has a compelling interest,” says Andrew Koppelman, the John
Paul Stevens Professor of Law at Northwestern University. “I am pretty
confident that if a state has an anti-discrimination law, any court will say
that ending discrimination is a compelling interest. So even with these new
religious freedom laws in place, the wedding photographer is still likely
to lose.”
Ultimately, the most important limit on the impact of laws like Indiana’s
may be changing public attitudes about sexual orientation. Polls show that
most Americans now support same-sex marriage. And while feelings about
religious freedom laws are bound to be complicated, the harsh reaction to
Indiana’s law suggests that mainstream America no longer condones overtly
discriminatory treatment towards the LGBT community.
That doesn’t mean that anti-gay bias isn’t still pervasive, that
discrimination can never happen, or that a law like Indiana’s couldn’t
enable it. The whole point of the law is to make sure a shrinking, anxious
minority can continue to conduct business in a way that the majority
increasingly rejects.
But one outcome of this fight could be yet more support for passing anti-
discrimination laws -- which most states still do not have -- and yet more
stigma for anti-gay attitudes. As Koppelman, who like Bagenstos is a strong
supporter of same-sex marriage, wrote recently at the Social Science
Research Network, “The gay rights movement has won. It won’t be stopped by
a few exemptions.” | t*******y
发帖数: 374 | 2 这里的许多网友，是身在楚国心在汉，所以对楚事不大在乎。反正各有其好。 |
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