I’ve received reports that a baker in upstate New York has refused to bake a cake for a same-sex wedding. Because New York does not have a RFRA, he is planning on raising a defense based on the Liberty of Contract protected by the 14th Amendment’s Due Process Clause. The name of the baker has not yet been released, but I’ve obtained a photographs of him, his workers, and his bakery. Stay tuned for more details.
Here is a roundup of my recent media coverage on the Indiana RFRA:
Quoted in “Indiana Law: Sorting Fact From Fiction From Politics,” NPR, April 1, 2015.
So, in other words, while the federal law states that a person can sue the governmentfor a grievance, Indiana makes a point of stating that it doesn’t matter if government is involved.
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.
Quoted in “Things you haven’t considered about Indiana’s religious freedom law,” CNN.com, April 1, 2015.
These concerns are based on speculation of what might happen, said Josh Blackman, a constitutional law professor at South Texas College of Law.
Yes, the Indiana law makes it clear that individuals and private companies can use the religious freedom law as a defense, he said. “But, just because you raise the defense does not mean it will be successful.”
Those who try to defend their discriminatory actions in court tend to lose, Blackman said. In his opinion, if Elane Photography had been able to use the law as a defense in New Mexico, it still likely would have lost the case.
What’s clear is that Indiana’s law increases the potential pool of people who can defend themselves claiming religious freedom. The success of such arguments is to be seen.
Quoted in “Conservatives Push Back Against Indiana Boycotters, But Is It Enough?,” Bloomberg Politics, April 1, 2015.
Progressives lighting their torches and throwing them at the Hoosier state simply don’t understand the law. “Indiana’s RFRA does no more than codify that the private enforcement of public laws—such as discrimination claims — can be defended if there is a substantial burden on free exercise of religion,” writes Josh Blackman in National Review. “That’s it. And again, until recently, this provision was not particularly controversial.”
Quoted in “Indiana Governor Wants to Clarify Religious Freedom Law,” The Wall Street Journal, April 1, 2015.
“The Indiana law just makes explicit…that this is an available shield that a business can use to defend itself,” said Josh Blackman, a constitutional-law expert and law professor at the South Texas College of Law.
Guest on John Gibson Show to discuss Indiana Religious Freedom Law, Fox News Radio, April 1, 2015.
Guest on David Medeira Show to discuss Indiana Religious Freedom Law, 94.3 FM Scranton, April 1, 2015.
Quoted in “How Indiana’s religious freedom law sparked a battle over LGBT rights,” Vox, March 31, 2015.
Indiana’s law, which goes into effect on July 1, goes further in one significant way than traditional RFRA laws. As South Texas College of Law professor Josh Blackman explained in a blog post, it’s unclear — and varies from court to court — whether the federal RFRA can be cited as a defense in lawsuits in which the government isn’t one of the parties involved. But Indiana’s law explicitly states that a person can cite the state’s RFRA in private lawsuits in which the government isn’t a party. That means someone could cite Indiana’s RFRA as a defense in a private lawsuit, instead of just legal disputes with governments.
Guest on “Laura Ingraham Radio Show” to discuss Indiana Religious Freedom Law, March 30, 2015.
Quoted in “Obama attacks Indiana religious freedom law, but backed Illinois bill as state senator,” The Washington Times, March 30, 2015.
Quoted in “The Economics of Religious Freedom Bills,” The Atlantic, March 27, 2015.
I will update this throughout the course of the day. No fooling.
The Times has a story about Andreas Lubitz, the pilot of the Germanwings flight, and whether his mental illness contributed to what by all accounts is a horrific mass killing. The article focuses on how stigmatizing his mental illness could have wide-ranging collateral consequences, with direct references to gun violence.
The co-pilot, Andreas Lubitz, would not be the first aviator to hide the fact that he was having psychiatric difficulties or that he had received mental health treatment.
The reluctance to come forward means that airlines, health professionals and regulators must strike a delicate balance, trying to decrease stigma to encourage pilots to be honest about their problems, while at the same time drawing a firm line beyond which pilots are grounded to protect the public’s safety.
Such issues surrounding mental health are familiar territory in the United States, where a series of mass shootings, including those in Newtown, Conn., and Aurora, Colo., riveted the public’s attention on the responsibilities of therapists who treat the mentally ill.
After the Newtown massacre in 2012, several states, including New York and Connecticut, changed their laws, broadening the circumstances under which mental health professionals can report a potentially violent patient without fear of legal repercussions. Under the New York law, they are required to report to local health officials those who are “likely to engage in conduct that would result in serious harm to themselves or others.”
But those laws remain controversial. And many mental health experts say that the tendency to link mass violence and mental disorders has a negative effect, discouraging people from seeking treatment.
“These kind of stories reinforce the anxiety, the doubts, the concerns that people have that ‘I have to keep my symptoms concealed at all costs,’ and that doesn’t benefit anyone,” said Ron Honberg, director of policy and legal affairs at the National Alliance on Mental Illness.
I’ve previously discussed that one of the perverse aspects of laws making it easier to take guns away from those with mental illness is that it stigmatizes the patient, and makes it less likely that they will report their condition to mental health professionals. Putting aside for the moment that the overwhelming majority of people with mental illness are not violent, doctors have expressed great concern about regimes like New York, where people can be disarmed without any process.
There are no simple answers to people inflicting unimaginable harm to others.