Connecticut Is Not Indiana
Posted: March 30, 2015 Filed under: General Law | Tags: 52-571b, first amendment, freedom of religion, peyote, rational basis, religious freedom restoration act, strict scrutiny 11 CommentsLast week Indiana enacted a controversial law that many believe is intended to allow individuals, particularly for-profit business owners, to discriminate against persons who identify as LGBT, on the ground that providing services to such persons may burden the provider’s religious convictions. Today, Governor Dannel P. Malloy announced that he will sign an executive order banning state-funded travel to Indiana. The governor stated, “When new laws turn back the clock on progress, we can’t sit idly by. We are sending a message that discrimination won’t be tolerated.”
In response to the governor’s announcement, some are arguing that Connecticut is being hypocritical because it has its own law, enacted in 1993, that is (allegedly) no different from, or is even worse than, the new Indiana law. (Click here and here for examples of such arguments.)
Are those arguments correct? I think not. Nothing in the text or history of the Connecticut law suggests that the General Assembly intended to allow individuals or business owners to discriminate against members of the LGBT community based on religious beliefs.
To appreciate the fallacy of the “hypocrisy” argument, we need to go back to the year 1990 A.D., the year in which the United States Supreme Court decided an important First Amendment/freedom of religion case called Employment Division, Dept. of Human Resources of Oregon v. Smith. That case concerned a Native American’s claim that, given the First Amendment’s protection for freedom of religion, his desire to use peyote in a religious ceremony should trump a state criminal law prohibiting the use of peyote for any purpose. The Supreme Court ultimately concluded that the First Amendment did not protect the religious or sacramental use of peyote. But, what is more important is why the court reached that conclusion.
Historically, the Supreme Court had held that all governmental actions that burdened the free exercise of religion, even incidentally, could only be upheld if they furthered a “compelling state interest.” In non-legal jargon, this test–known as “strict scrutiny“–requires a state to justify a law that infringes on a constitutional right with a really, really, really, really good reason. (By contrast, most laws are subject only to what is known as “rational basis review,” which only requires a state to articulate any arguably rational reason for the law.) The Supreme Court explained why strict scrutiny was historically required in cases involving freedom of religion:
It is basic that the showing merely of a rational relationship to some colorable state interest would [not] suffice; in this highly sensitive constitutional area, [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation [on religious freedom]. See Sherbert v. Berner (1963).
In Smith, however, a divided Supreme Court rejected its own longstanding precedent and held that, going forward, strict scrutiny would no longer be applied to laws of general applicability, such as criminal laws, that incidentally burdened religious practices. Instead, Justice Scalia explained that such laws would be subject only to rational basis review. Under that deferential standard, the high court held that a criminal law prohibiting the use of peyote generally did not unconstitutionally infringe on a Native American’s religious beliefs, which included using peyote during religious ceremonies.
Congress reacted strongly to the Smith decision and passed a law known as the Religious Freedom Restoration Act of 1993. Congress’s stated purpose in passing the law was to restore the “compelling state interest/strict scrutiny” test that the Supreme Court had rejected in the Smith decision. That same year Connecticut passed a similar law for the same purpose, General Statutes § 52-571b. Indeed, during debates on the bill that became the law, then State Senator (now Attorney General) George Jepsen remarked:
To be absolutely clear, this does not–this bill does not expand, contract or alter the ability of a claimant to obtain relief in a manner consistent with the Supreme Court’s free exercise jurisprudence under the compelling interest test prior to the Smith case.
See Rweyemamu v. CHRO, 98 Conn.App. 646 (2006) (quoting remarks of Sen. Jepsen).
Thus, the question is this: in enacting General Statutes § 52-571b, did the Connecticut General Assembly intend to make it lawful for an individual or business owner to discriminate against a LGBT customer because of a religiously based objection to serving such a customer? I think the legislative history of the statute is clear on this issue: NO. In contrast, making such discrimination lawful appears to be the precise motivating purpose behind the Indiana law.
So, whatever one may think of Governor Malloy’s response to the Indiana law, neither he nor Connecticut in general are being hypocritical.
UPDATE: I neglected to note that in 1991, Connecticut became one of only a few states at the time to enact comprehensive anti-discrimination legislation, which forbade discrimination on the basis of gender (including sexual orientation) in employment, housing, public accommodations and credit. See General Statutes § 46a-81a et seq. The notion that only two years later the General Assembly would have passed a law for the purpose of allowing discrimination against the LGBT community based on the religious convictions of employers, landlords, owners of public accommodations, etc., is quite far-fetched.
UPDATE (3/31): Colin McEnroe has an excellent post on his blog comparing and contrasting the language of Connecticut’s and Indiana’s laws. He raises a few questions, which I will address shortly in a new post.
Appealingly Brief! 
Kudos to you, Dan! You saved me writing a scathing critique of the Professor Marci Hamilton’s assertions made as a Colin McEnroe’s guest! Thank you. Would you please call Mark Oppenheimer to open the microphone so you may set the record straight?
“Are those arguments correct? I think not. Nothing in the text or history of the Connecticut law suggests that the General Assembly intended to allow individuals or business owners to discriminate against members of the LGBT community based on religious beliefs.”
The same holds true for Indiana whether you want to admit it or not. No matter what you believe the “purpose” behind the bill was doesn’t matter because the statute Does Not Allow for discrimination of LGBT. The statute codified Indiana common law that followed the federal Religious freedoms act. Connecticut’s religious freedom bill IS MORE restrictive whether you want to admit it or not. Therefore governor Malloy was being extremely hypocritical and honestly it’s appauling that you would claim otherwise. You seem to have an understanding of legal principles and the law- so you know very well that Indiana’s law is not allowing describes toon and just as all other 19 states (including Connecticut) and the federal act signed by Bill Clinton. Shame on you for attempting to manipulate this and turn Indiana into a villain when you are aware that’s not true. States were told by the U.S. Supreme Court to create the very bill Indiana just passed and as Connecticut passed.
I just wrote my response before seeing yours cmr13. You and I are saying exactly the same thing. There seems to be no limit to the hypocrisy and disinformation being extended against IN’s RFRA.
Great minds Paul K. Ogden- social media’s response to this bill is shameful and preys on the uninformed and misinformed public. It’s so easy to push the blame when Connecticut could possibly face the same horrific onslaught Indiana currently faces. It’s sad that Connecticut felt the need to join the hypocrisy rather than stand on it’s principles and defend the law for what it is – a defensive tool to defend the fundamental right to religion provided by the Constitution rather than some ridiculous free pass to discriminate.
“Nothing in the text or history of the Connecticut law suggests that the General Assembly intended to allow individuals or business owners to discriminate against members of the LGBT community based on religious beliefs.” And there is nothing in the text or history of the Indiana law that suggests that the General Assembly intended to allow individuals or business owners to discriminate against members of the LGBT community based on religious beliefs. Nothing. Further, nNot once in the history of the RFRA has the law ever been used to invalidate an anti-discrimination law. But Connecticut’s Governor is an even bigger hypocrite as his state’s RFRA is actually stronger than Indiana’s because it only requires that a person’s religious faith be “burdened” not “substantially burdened” like Indiana’s, the federal and most state RFRAs.
Dan Klau puts some light to the claim that Connecticut is guilty of the same legislative mischief as that enacted and signed into law by Governor Pence.
In return we have two comments from people with an agenda who didn’t bother to read what Mr. Klau actually wrote. Neither of these people seem to have read what Mr. Klau actually wrote. Nor did they bother to read the Connecticut law which is short, written in plain language as laws go. The same can’t be said of the Indiana law.
CMR13 is essentially anonymous, as am I – I’d rather not be plagued with extremist trolls.
I am a resident of nearly 30 years in Connecticut, i.e. going back some years before either 1991 and 1993 legislation was passed. The CT RFRA law applies only to state government’s actions involving persons – and it has a context of a specific Supreme Court Ruling.
CMR13 and Paul K. Ogden both parrot back the right wing meme of those who favor discrimination and as many legal tools to do so as possible. It doesn’t take a lot of looking to find Paul K. Ogden, who is closely allied to Advance America, the right wing organization that orchestrated the drafting and passage of the bill.
Ogden is an Indianapolis lawyer (and blogger) who announced last October (http://bit.ly/1NL6FWJ) he was giving up the practice of law after the Indiana Supreme Court imposed a 30 day suspension for misconduct and ordered to pay $10,086.77, half the cost of the disciplinary costs. http://bit.ly/1NEUMQk Reinstatement was automatic after the suspension so whether he’s actually given up the law (All but one of the misconduct charges were ruled as covered by the First Amendment).
This was Ogden’s first discipline, which in his favor, but the Court said, “In aggravation, we find that during the course of this disciplinary proceeding, Respondent’s conduct has been obstreperous rather than cooperative.” Advance America strongly supported his claim that his offensive comments were protected speech (as did Jonathan Turley from the other side).
Ogden makes the argument that the Indiana RFRA is not involved with LGBT issues. This is from his blog entry for April 2.
“Just days ago, an enterprising TV reporter decided to gauge local businesses’ owners response to Indiana’s Religious Freedom Restoration Act. The owner of “Memories Pizza” in Walkerton expressed support for religious freedom and said that while she would gladly serve LGBT customers, she would refuse to cater a same sex wedding. NBC reports:
— TV report —
“If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no,” Crystal O’Connor, who described the business as a “Christian establishment,” told ABC57.
The owner of a pizzeria in Indiana said Wednesday he was surprised by the backlash online following comments he and his family made in support of the state’s much-discussed Religious Freedom Restoration Act.
The O’Connor family, who owns Memories Pizza in Walkerton, told a local TV station Tuesday they wouldn’t cater a gay wedding.
She added, “We’re not discriminating against anyone, that’s just our belief and anyone has the right to believe in anything.”
—end NBC report
Ogden in his blog said: “It is a shame that Ms. O’Connor confused the RFRA with the issue of her refusing to cater a same sex wedding. she can refuse to cater that same sex wedding because INDIANA DOES NOT HAVE A STATEWIDE ANTI-DISCRIMINATION LAW COVERING SEXUAL ORIENTATION, which is completely unrelated to the RFRA.”
Eric Miller, founder and director of Advance America, the conservative Indiana group which has pushed hardest for the state’s RFRA said this today (April 2):
At the committee hearing that followed the news conference, Eric Miller of Advance America, which lobbied for the original religious freedom law, said the proposed changes would “destroy” the law.
“Among the things that will happen, Christian bakers, florists and photographers would now be forced by the government to participate in a homosexual wedding or else they would be punished by the government,” Miller’s group said in a blog post.
“Some Christian conservatives who had supported the original law called for Pence to veto the changes.”
—
http://www.advanceamerica.com/blog/?p=1849 is the blog entry from the Indiana group for March 26 declaring victory with the Indiana RFRA.
“Here are just three examples where SB 101 will help:
“Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!
“A Christian business should not be punished for refusing to allow a man to use the women’s restroom!
“A church should not be punished because they refuse to let the church be used for a homosexual wedding!”
One last paragraph from today, April 2, as the Republican majority shoved through revisions to the act, largely by locking out the Democrats from the process. House speaker Brian Bosma. “Hoosier hospitality had to be restored,” Bosma said during the news conference, where he apologized “not for actions taken, but the message received.”
The Indiana legislature knew exactly what it was doing, as did the right wing commenters, in passing the law while denying the intent of the people who wrote it.. The people who pushed this legislation through worked closely with the Advance America people, part of a national effort to use religion to allow discrimination. They also worked with people to put up a smokescreen around it.
I am joining this discussion late, but it strikes me that Governor’s Pence’s ability to give a clear response to George Stephanopoulos’ questions – regarding the intent of the Indiana RFRA law and his own beliefs regarding discrimination based on sexual orientation – laid bare the intentions of those who drafted and approved the Indiana law.
Pence should simply have stated that the Indiana law did not allow for discrimination based on sexual orientation and that he does not believe that such discrimination should be allowed.
He was unwilling or unable to do so.
The source for Eric Miller’s comments was left out by mistake. It was http://indy.st/1GQwIKa which is the Indianapolis Star blog following the story. It began at the top and is gradually moving down as the story develops.
Indeed, so we have a photograph of Dan Klau taken by no other than Chion Wolf, a well-known groupie of Colin McEnroe. And we have Mr. Klau’s faint glorification of McEnroe in his update above (as though McEnroe’s knowledge of the law exceeds that of a high schooler). Shame on you Dan Klau. More later….
[…] all the talk about religious “freedom” this week in the news and the holidays upon us this weekend, I wish I had something more profound to write about […]
[…] For modern context vis a vis RFRA’s, see the Atlantic and my genius friend Dan Klau on how CT / IN laws differ. […]