July 15, 2016

"The law Pence signed — a Religious Freedom Restoration Act (RFRA) — has been around since President Bill Clinton approved a federal version of the law in 1993."

"Traditionally, RFRAs were used to protect religious minorities, including the Amish and Muslims. But as conservatives have lost battles over LGBTQ rights (particularly same-sex marriage), they have turned to religious freedom laws in an attempt to carve out methods to continue allowing discrimination."

From a Vox article titled "Mike Pence for Donald Trump's vice president? It's an extra awful choice for LGBTQ rights" that at least tries to reconcile the recent denouncement of RFRAs with the 1990s bipartisan support for religious freedom exemptions.

It's funny to say "Traditionally" when you're talking about legislation that's only been around for a couple decades, and if you make a law like that it has to treat all religious the same. You can't favor one religion over another! You can't pick and choose and be sentimental about the Amish and politically correct about the Muslims and then turn around and reject the principle of exemptions when they're demanded by groups that you like seeing get pushed around.

But there is some reason to judge politicians by what they think they are doing — by their motivations — and not by what the legislation they produce will actually do when its language is applied in real cases and constrained by constitutional law. Back in the 90s, people weren't talking about using religion as a basis for avoiding complying with anti-discrimination laws. And last year, in Indiana, they were.

I'm interested in seeing how these attacks on Mike Pence will play out. People don't seem to do very well at understanding RFRA and the constitutional law that surrounds it. But Bill Clinton is such a central character. As I wrote last year:


Look at how pleased Bill Clinton was to sign what was then perceived as important civil rights legislation.
And the late Justice Scalia — whose empty seat figures so prominently in the election — is a central character. He wrote the constitutional law opinion that rejected religious exemptions and triggered the legislative response that was RFRA. 

43 comments:

Michael K said...

I suspect Pence's role will be to mention Bill Clinton every five minutes.

He could do that and not repeat himself for several days.

mccullough said...

The liberals on the Supreme Court are willing to gut RFRA so that Christians can be made to comply with the progressive agenda. Progressive jurisprudence protects favored minorities.

Ignorance is Bliss said...

He wrote the constitutional law opinion that rejected religious exemptions...

Did he reject religious exemptions, or did he say that the 1st amendment's freedom of religion does not require them?

mikee said...

There you go again, trying to use historical facts and some sort of logic to stop an attack to the emotions.

The master persuader is unimpressed, I am sure.

How about instead of responding to this with facts or logic, you try the "HOW DARE YOU! HAVE YOU NO SHAME!" attack, phrased to perhaps include the facts cited.

The point to be made is that the Hillary campaign is a corrupt, lying sack of smelly ordure, NOT to get the facts out there for people to decide that for themselves.

Smilin' Jack said...

People don't seem to do very well at understanding RFRA and the constitutional law that surrounds it.

It's very simple. RFRA was always bad. Bill Clinton never existed. And we are still at war with EastAsia.

Sami said...

RFRA! The law of unintended consequences.

Chuck said...

Well, at one level, we know that for Democrats, RFRA laws are great and much-needed, when they are protecting peyote-ingesting Native Americans, and pot smoking Rastafarians.

And Ann Althouse surely appreciates that hypocrisy.

And of course, Mike Pence came off as a buffoon in the George Stephanopoulos interview. He was poorly prepared and poorly composed, for obvious questioning.

The correct answers to the Stephanopoulos questions -- and you all should note very carefully that Stephanopoulos asked three very different questions in quick succession so as to make them all sound like the same question -- would have been as follows.

A. Yes, George. If a baker's sincerely-held core religious belief is in opposition to same-sex marriage, he doesn't have to decorate a cake in celebration of that marriage. The law protects that baker.

B. No, George; you seem to have now changed the question are now asking me if bakers in general can discriminate against homosexuals in the abstract, without regard to religious beliefs. The law doesn't enable that.

C. And no, George, the law does not empower self-proclaimed "Christians" to generally refuse commercial services to homosexuals that are unconnected to religious principles.

Sami said...

A President should never pander to religious people. It'll come back to bite him/her in the ass every time some religion wants their own unique set of beliefs legally protected beyond the protections afforded by the First Amendment.

sean said...

I think the word "traditionally" is justified as shorthand for the longer story: traditionally, the courts protected some religious practices under the First Amendment; as the courts moved away from affording such protection, legislatures attempted to preserve the status quo by codifying in statutory form what had previously been enforced as a Constitutional matter. (That could still be considered an oversimplification, although I have expanded a single word into a fairly long sentence. Anyone who can summarize this history better in fewer words is welcome to do it.)

Nonapod said...

Let's be honest here: Same Sex marriage exists in some emanation and/or penumbra of the Constitution, according to our betters. The only thing that could undo that is a Constitutional amendment, which will never happen. The point is: that battle is over, no matter if Trump/Pence wins or not.

The matter now is whether or not business owners can refuse service to people for religious reasons. Is faith meaningless in the eyes of the law? Will the same group of betters who determined that SSM exists in the Constitution go on to decide that the First Amendment does not actually say what we think it says? Obviously I'm not a lawyer or a Constitutional expert like our current President. But it seems to me that the most that will happen regrading this issue in the event of a Trump/Pence victory is a maintaining of the status quo. Apparently a lot of people feel that that is enough of a reason to conclude that Pence was a poor choice? Please correct me if I'm wrong in my assessments here.

Fernandinande said...

It's an extra awful choice for LGBTQ rights"

I can't keep track of which is the most important national issue for the federal government to deal with: homosexual wedding cakes or bathrooms for crazy people.

You can't favor one religion over another!

That's why there's a separate "American Indian Religious Freedom Act" for people of a certain (non-existent) race.

eric said...

Islam isn't compatible with gay marriage.

Democrats want more of both.

I wonder how this ends.

William said...

I don't know that much about Pence. I expect that in the coming weeks I shall be informed about the depth of depravity that this evil man has exhibited in his public life. In some ways, he's probably worse than Trump. If such a man gets elected, it will only be a matter of time before some religious fanatic is motivated to start shooting up gay nightclubs. Our only bulwark against such a contingency is to elect Hillary.

gerry said...

Is faith meaningless in the eyes of the law?

Progressives will permit freedom of worship, but oppose freedom to practice your religion in public by actually asserting or doing things motivated by your religious sentiment.

Unless your faith is Marxian or post-modern, Progressive logic asserts that faith is meaningless and very likely offensive and bigoted.

Matthew Sablan said...

Maybe he can evolve if we feed him enough Pence Candies.

traditionalguy said...

Its those damn Amish and Mennonites again. Pence may be a good communicator of allowing gay bashing religious values, but he certainly has no trouble bending over for Trump. Does this mean that God has chosen Trump.

Stay tuned Christians. When Lake Erie swallows up George Soros' Army of demonstrators/rioters attacking the Trump People in Cleveland, that will be the sign.

Sami said...

Muslim cake bakers should be made to sell cakes to gay people just like everyone else. Muslim cab drivers should be made to allow dogs and bottles of alcohol in the cab. Islam is a religion, no special protections for any religion. That's only fair. Before we know it, Rastafarians will claim it's their legal right to smoke the holy weed in their cab with passengers in the back.

campy said...

"You can't pick and choose and be sentimental about the Amish and politically correct about the Muslims and then turn around and reject the principle of exemptions when they're demanded by groups that you like seeing get pushed around."

Sure you can.

"The whole question is — who will overtake whom?"

CJinPA said...

LOL Congratulations Mike Pence. You are about to become the Second Most Awful Person in the World.

We'll know more about your background in seven weeks than we've learned about the U.S. President in seven years.

Chuck said...

One thing the Pence pick will definitely do, is force Trump to answer more questions about gay rights.

And I suspect, for anybody (like me) who thinks that Pence booted that one when given a chance, we ain't seen nothin' yet, like Trump's upcoming pronouncement(s) on something as legally tricky as RFRA laws.

This is a pure disaster waiting to happen.

Again, remember the Althouse words: I think Trump is pro-gay and he is being cagey. I still think Althouse is right about that. I think that, and I think that Althouse has held that view from the beginning of the Trump campaign. Privately, on her part, until this week. It will become clearer, when Trump is cross-examined in the media about the Indiana RFRA and RFRA's more generally. And then Christian conservative, social conservative and evangelical voters can decide how enthusiastic they are, about Mr. Trump.



Sigivald said...

You can't pick and choose and be sentimental about the Amish and politically correct about the Muslims and then turn around and reject the principle of exemptions when they're demanded by groups that you like seeing get pushed around.

Sure you can.

I mean, if you don't have principles (or the principles are "favored groups get favored treatment").

George111 said...

I look forward to Trump being grilled on RFRA. No more Mr. Cagey.

holdfast said...

"Traditionally" we didn't need a a[nother] law to protect religious freedom, there was a Constitution for that. But "traditionally" we didn't have a bunch of butthurt GLBQTWXYZ activists running around trying to humiliate and bankrupt religious folks who don't buy into the secular (but still-faith based) and ever changing doctrine of those GLBQTWXYZ activists.

Eric said...

News coming out now that Trump was very uncomfortable with choosing Pence, almost had his hand forced. This may not end well. Poor Pence will be blamed by Trump when he loses.

damikesc said...

I love that importing a million Muslims who are not known for being overly fond of gay folks isn't bad for LGBT "rights".

Progressives will permit freedom of worship, but oppose freedom to practice your religion in public by actually asserting or doing things motivated by your religious sentiment.

Iowa wants to force churches whose services are open to the public (you know, basically all of them) to call trannies by their preferred pronoun. So, no, they don't permit freedom of worship either.

Real American said...

didn't matter who Trump picked for VP. the leftards and their media lapdogs would spew the same lies that the pick was a hater and a bigot. they do the same thing every 4 years - its so predictable. IT'S AS IF THEY HAVE NO FUCKING SUBSTANTIVE ARGUMENTS TO SUPPORT THEIR POSITIONS!

eric said...

Blogger Eric said...
News coming out now that Trump was very uncomfortable with choosing Pence, almost had his hand forced. This may not end well. Poor Pence will be blamed by Trump when he loses.


Calling gossip news is a bit of a stretch Eric with a capital E.

Eric said...

"Call to ban Muslims from entering the U.S. are offensive and unconstitutional," Pence tweeted on Dec. 8, 2015.

Michael K said...

George111, why is your "Profile not available"?

You wouldn't be a lefty troll would you ?

Sorry, eric. You see where this leads?

Threepines said...

Trump, 2016: “"Obviously the war in Iraq was a big, fat mistake. ... we spent $2 trillion, thousands of lives, we don't even have it. Iran has taken over Iraq with the second-largest oil reserves in the world.”

Pence, 2007: “Thousands and thousands of Iraqis were moving about in regular everyday life like a normal outdoor market in Indiana in the summertime.” (Statement to reporters after visiting a Baghdad market.)

Pence voted for the 2002 resolution to authorize George W. Bush's invasion of Iraq, now widely considered a major blunder that destabilized the region. And Pence remained a leading supporter of the war, continuing to defend it even after things went south.



Read more: http://www.politico.com/story/2016/07/trump-vp-pick-mike-pence-policy-225605#ixzz4EVXjZMxs
Follow us: @politico on Twitter | Politico on Facebook

Threepines said...

Trump: "I’m building a wall. It’s an inherent conflict of interest.” (From June Wall Street Journal interview in which Trump said U.S. District Judge Gonzalo Curiel, who is presiding over lawsuits against Trump University, had “an absolute conflict” because Curiel is “of Mexican heritage.”)

Pence, 2016: “Every American is entitled to a fair trial and an impartial judge, but of course I think those comments were inappropriate. I don’t think it’s ever appropriate to question the partiality of the judge based on their ethnic background.”


Read more: http://www.politico.com/story/2016/07/trump-vp-pick-mike-pence-policy-225605#ixzz4EVZB0cXY
Follow us: @politico on Twitter | Politico on Facebook

Threepines said...

Trump, 2016: “They want to cut your Social Security, I’m not cutting your Social Security.” (April speech in Racine, Wis.)
Pence, 2010 “…for Americans under the age of 40 we absolutely have to begin to reform Medicare and Social Security in ways that will ensure its long term fiscal solvency.” (Sept. 26 on Meet the Press)

Pence is a longtime advocate for privatizing Medicare and Social Security. In 2005, he supported George W. Bush’s efforts to privatize Social Security, writing a letter to the president with then-Rep. John Shadegg of Arizona, urging Bush not to compromise.


Read more: http://www.politico.com/story/2016/07/trump-vp-pick-mike-pence-policy-225605#ixzz4EVa3EJA0
Follow us: @politico on Twitter | Politico on Facebook

Static Ping said...

There is literally no one that could have been picked for Trump's VP that would not be demonized. If he picked Elizabeth Warren the DNC would have Fauxchahontas photoshops up within the hour. If he picked Joe Biden, Joe would go from elder statesman to the dummy he is within minutes. If he picked Barack Obama, he would be an Uncle Tom.

There is nothing controversial about RFRA legislation, unless you hate freedom. Apparently, freedom hatred is the norm for the Democratic Party at this point. They keep it up and they might find their country has less states.

If you want to know why people will vote for Trump despite the fact that he honestly should not be President, on the 1 to 10 scale I vote for the 2 over the 0 any day.

The Cracker Unknown said...

"Threepines said..."

I'm baffled by this kind of blatant cut-and-paste trolling. It moves absolutely no one. Is it some kind of full employment program for unskilled liberals?

UncleBenny said...

Ann Coulter: Pence is the combo-platter of disaster.

"“First he allowed himself to be portrayed as a right-wing homophobic nut and then — just days later — he sold out to the left-wing activists, anyway,” Coulter said in reference to an Indiana law protecting businesses that refused to serve gay customers for religious reasons. Pence signed the measure into law but then asked the Legislature to water it down after widespread outrage."

tim maguire said...

If you're Muslim, it's minority rights, if you're christian, it's discrimination.

You don't often see it admitted so boldly.

UncleBenny said...

"Donald Trump reportedly called his advisers at midnight to try and get out of picking Mike Pence."

http://theweek.com/speedreads/636320/donald-trump-reportedly-called-advisers-midnight-try-picking-mike-pence

Is this how he's going to run the country? The guy is in way over his head.

The Cracker Unknown said...

Anything that Trump "reportedly" did can be dismissed as Donk dogshit.

Michael K said...

"Is it some kind of full employment program for unskilled liberals?"

I think so. I hope they are getting minimum wage, at least.

Michael K said...

Threepines seems to be earning his/her $15.

Darleen said...

The Obama administration just upheld California's law that forces churches and any other religious organization to pay for abortions.

Progressives only recognize the "free exercise" clause of the 1st amendment when it pertains to their secular religion... not to anyone who dissents from it.

John Thacker said...

"Traditionally, RFRAs were used to protect religious minorities, including the Amish and Muslims. But as conservatives have lost battles over LGBTQ rights (particularly same-sex marriage),"

A fair statement would be "traditionally, RFRAs were used to protect religious minorities from laws that didn't take their interests and religious practice into consideration. The large denominations of Christians weren't too interested in RFRA because they were a firm majority and generally found their interests adequately represented in the regular legislative process. (Small Christian denominations like Seventh Day Adventists and others were interested.) Therefore, the laws were also passed at the state level primarily in fairly liberal states.

However, as the political power of Christian denominations has waned and they've lost battles, particularly in the courts, they have looked to RFRAs as a permissible tool to protect their interests. At the same time, much of the left, which has always very interested in protecting the rights of small minority views and sects, is extremely uninterested in protecting the rights of views that are held by 40-50% of people, form majorities in many states and municipalities, and until recently were a large majority. The Christian groups are still viewed as the powerful, previously dominant political enemy, which refused to compromise quickly enough on the issue and now, suing for peace after losing, deserves no mercy."

Rusty said...

Hi Darleen.
Spot on.

You relize, of course, John, that as a true believer There can be no compromise at the risk of ones soul, yes?

"If you just sign this little piece of paper you can opt out of the requirement that you must pay for abortions."