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This week, we give you the straight pepperoni on the  Religious Freedom Restoration Act fight in Indiana and as expected, the podcast mirrors real life (or at least real life on Ricochet). Then, former HP CEO and current 90% decided Presidential candidate Carly Fiorina joins to discuss why she’s the best person to beat Hillary, why she won’t fall into the same CEO trap that Mitt Romney found himself in, and why printer ink is so darn expensive (Thanks, @Lileks!).

Then, our good pal Andrew Ferguson joins from The Weekly Standard to discuss his must read profile of Jeb Bush, and his impressions of the other candidates in the field (he’s met them all). Also, will a dog allergy kill Scott Walker’s chances to win the White House? A Ricochet Podcast Investigation ® settles the matter. Finally,  the curious case of new Daily Show host Trevor Noah — are his jokes off color or just not funny? We give our take — what’s yours?

Music from this week’s episode:

Indiana by Louis Armstrong

The opening sequence for the Ricochet Podcast was composed and produced by James Lileks.

Extra cheese, EJHill.

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  1. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    Well, now we know why Fred thought it was OK to cite the character assassins at Advocate.com in the Daily Shot.

    • #1
  2. EJHill Podcaster
    EJHill
    @EJHill

    Peter Robinson is my hero.

    • #2
  3. Nick Stuart Inactive
    Nick Stuart
    @NickStuart

    The young lady at Memories Pizza was literally minding her own business when a reporter walked in, shoved a microphone in her face, and asked a question she was clearly unprepared to give the exactly prescribed acceptable answer to.

    Memories Pizza didn’t make a claim of victim status. They were inundated by death threats, had their website hacked, their Yelp review status trashed by people who’ve never been customers. They’ve been forced to close the business and literally go into hiding.

    PizzaBacklash

    What’s disingenuous is the suggestion (albeit probably unintentional) that what’s happened to Memories Pizza is “murky.”

    Maybe some of the people surrounding Pence when he signed Indiana’s RFRA are unappealing. But shouldn’t the issue be the plain text of the law, which only requires that the state have a compelling interest and use the least restrictive means of attaining it. Which only gives the person a defense in court, which the judge and jury may or may not accept?

    Can Rob give us examples of gay persons who’ve been harmed by RFRAs?

    There are numerous examples of people who have been harmed by the state for their opposition to serving SSM (here in the United States):

    A couple fined $13,000 for refusing to host a SSM on their property

    Ordained  ministers being threatened with jail time if they don’t perform SSMs

    And while Vanderbilt is a private institution, here’s an example of what’s happening on college campuses all over the country:

    Christian student groups are kicked off campus for requiring their leaders (their leaders) to affirm a traditional Christian statement of faith.

    It’s quite an extensive list. There’s this new-fangled thing Rob may have heard of, the “Internet” which has something called “search engines.” Rob might want to give it a try to inform himself about the very real sanctions (by state and private actors) to which Christians who object to being made to service SSM are being subjected.

    • #3
  4. Hartmann von Aue Member
    Hartmann von Aue
    @HartmannvonAue

    Minor correction: Mitt Romney fought exactly once. In Colorado. And he decimated Barack Obama- by the lights of die-hard-Obama Supporters, even (remember the wailing and gnashing of teeth on MSNBC). Then he backed off. And at that point handed the election to Obama.

    • #4
  5. Blondie Thatcher
    Blondie
    @Blondie

    Andy needs to get out of D.C. if he thinks we aren’t pick-up country. Come on down here to North Carolina and I can introduce you to pick-up country.

    • #5
  6. Rob Long Editor
    Rob Long
    @RobLong

    Nick, I do know about Google.  But I think if we’re going to list the ways certain Christians are being threatened and penalized for their beliefs — which I agree is not only wrong but requires legal sanction — then we also need to list the ways that, until very recently (meaning, within the lifetime of many) gay men and lesbians have been subject to legal and other kinds of harassment.

    My argument here isn’t with Indiana’s RFRA — or the fed’s — but with the (to me) slightly disingenuous way the bill was signed and presented to Indiana citizens, including gay ones.  Maybe it’s my own dislike of the American Family Association — a group I’ve loathed since their days of complaining about prime-time TV sitcoms, like Cheers, being immoral.

    That said, what I also think is murky is the jurisprudence here.  And what I think is murkier still is the way we debate things right now in this country.

    So, to clarify, here are some things I believe (which I’m pretty sure I said on the podcast):

    1. A perfectly normal American person who owns a pizza joint in Indiana is now receiving death threats for holding perfectly legal (and not even fringe) views about gay marriage.  That’s wrong. We agree on that, I’m sure.

    2. Some other perfectly normal Americans who are gay are concerned that Indiana’s RFRA might be used to discriminate against them and so want, essentially, a “patch” on the law of the kind that other states have.

    3. Some other hysterical American progressives (gay, left, or gay+left) see any action by any traditional Christian as dangerous, any reluctance on the part of traditionally religious Americans to embrace gay marriage as bigotry, and that the duty of the government is to punish “wrong thinking” and religious holdouts.

    4. There is anti-gay bigotry out there, and it occasionally emerges from traditional Christian groups.

    5. There is also anti-Christian bigotry — and anti-religious feeling in general — in progressive, gay, and progressive+gay groups and they occasionally emerge from those groups.  More than occasionally, honestly.

    6. Gay Americans and traditional Christian Americans both feel — often, with justification — that they are getting their rights stomped on, which occasionally leads normal, decent Americans who actually can and do make accommodations all the time to react to the worse and most indecent actions of the other side.

    7. You can, of course, be against gay marriage and also against discrimination against homosexuals.

    8. You can, of course, be for gay marriage and also be against discrimination against those who support a traditional definition of marriage.

    9. The groups from #7 and the groups from #8 need to talk more.  Which is hard when pizza places are being attacked, people are name-calling, and the very idea of dissent and debate devolves to a race to see which side has been more victimized more recently.

    10.  And finally, here’s the murkiest area of all: if a person wants to buy flowers for a gay wedding, and a florist refuses to sell them, that’s, to me, a troubling issue and a very real case of discrimination against the buyer.  But if a person wants to have a florist design and arrange flowers for a gay wedding and is refused, it seems to me that the florist has every right to do this.  Custom work is different from having a shop that’s open to the public.  Put another way: if a baker refuses to sell a wedding cake to a gay couple, I’m not right with that.  But if the baker merely refuses to decorate and bake a special cake, then it seems to me the baker has that right, and that that right should be protected by law.

    11.  There’s no rule that all of these things have to be perfectly in line.  There’s no rule that says there’s got to be a clear answer.

    12. There is no #12.

    • #6
  7. Ricochet Inactive
    Ricochet
    @RobertMcReynolds

    Okay so I have to ask, why does Peter always look like he is very suspicious of whatever it is you three are looking at?  And James, you always look like you are about to do something diabolical like segue into a Harry’s Shave pitch?  Rob, I don’t even think you know where you are half the time.  Looking forward to this week’s episode guys.

    • #7
  8. BuckeyeSam Inactive
    BuckeyeSam
    @BuckeyeSam

    7. You can, of course, be against gay marriage and also against discrimination against homosexuals.

    Depends on how you define discrimination. In their capacity as individuals, I say no. In their capacity as couples, I see an exception for when you are called up to engage in matters intimately involved in their wedding or their marital relationship. In the latter regard, must a lawyer in a small firm or in solo practice perform estate planning work for a gay couple? I’d like to think that falls into Rob’s category of custom service. And if it’s not a custom service, that couple should head for Shapiro’s legalzoom.com. I’m sure legalzoom.com will help them with asset titling, beneficiary designations, selection of fiduciaries, and the like.

    8. You can, of course, be for gay marriage and also be against discrimination against those who support a traditional definition of marriage.

    These people don’t exist except on the right. So with the entire left embarking on a witch hunt, RINO-squishes like Rob, much as I like him, will be quick to declare, “Hey, don’t look at me. I’m all for gay marriage. I could take or leave that religious stuff. Say, am I still invited to the next pre-witch hunt cocktail party?” And with that, we’ll have one-party rule with the 2016 election, and the eventual amnesty will only lock that in.

    • #8
  9. Petty Boozswha Inactive
    Petty Boozswha
    @PettyBoozswha

    I agree completely with Rob’s comment #6 – it seems to me that RFRA is the conservative analog to the left’s BDS movement. Maybe it can be justified by those with a certain mindset with a few compelling anecdotes, but the thermonuclear reaction it incites on the other side, and the potential for misuse or overuse by it’s disingenuous proponents, make it bad policy.

    • #9
  10. BuckeyeSam Inactive
    BuckeyeSam
    @BuckeyeSam

    One other thing is that the anti-religious left OWNS the media megaphone. Religious conservatives stand NO chance–not even merely to be left alone.

    • #10
  11. Peter Robinson Contributor
    Peter Robinson
    @PeterRobinson

    EJHill:Peter Robinson is my hero.

    And you’re mine, EJ–or would be if you used a more flattering headshot in this week’s (brilliant, again, as if, at this point, anyone needed to say so) graphic.

    • #11
  12. BThompson Inactive
    BThompson
    @BThompson

    Rob, I don’t believe you are this naive, so it makes me suspicious of your true beliefs. The “fix” leftist activists want for the Indiana RFRA and the one Mike Pence seems ready to grant, is one that removes that pizza owners religious right to deny a catering request from a couple at their wedding. That is the only “fix” on the table.

    The law as written and signed gave all the protections that gay people needed, there was no fix necessary. Now that law will be gutted and there will be no room for sincere religious conscience to oppose being trampled. You need to wake up, Rob.

    And know this, calling the Catholic Church anti-gay because it believes that the procreative nature of marriage and sex is sacred does indeed add to making the Church a target of the state by leftists. You cannot have it both ways, Rob. I’m disgusted at your hairsplitting and dissembling in this issue.

    • #12
  13. Marythefifth Member
    Marythefifth
    @Marythefifth

    I’m normally a lurker and should probably just wait for someone else to do a much better job commenting on Rob’s bombshell. I couldn’t finish listening to the podcast after that. Like the Leftist mob, he can’t seem to understand that respect for all persons doesn’t equate with or require respect for all behaviors. Rob! Surely you can imagine cases in which you would decline to provide a service to a person or group, or by your presence show support because it would make you feel you were condoning what you deemed to be their aberrant behavior. And is it hard to imagine a person having questionable history and habits but with whom you would associate, allow into your home, your church, club, whatever, but perhaps not want to see them with sole charge of your young children or your sister’s children for 7 hours a day almost 200 days of the year?

    My analogies are always weak, but here’s one anyway. Two of my siblings smoke. It’s not healthy behavior but they’re free to do so (except in my presence, my car, my house). I love them as I do my other siblings, and if they were in need, I’d hope to help them in any way I could, unless they were out of cigarettes and had no way to get to the store.

    • #13
  14. Rob Long Editor
    Rob Long
    @RobLong

    BuckeyeSam:7. You can, of course, be against gay marriage and also against discrimination against homosexuals.

    Depends on how you define discrimination. In their capacity as individuals, I say no. In their capacity as couples, I see an exception for when you are called up to engage in matters intimately involved in their wedding or their marital relationship. In the latter regard, must a lawyer in a small firm or in solo practice perform estate planning work for a gay couple? I’d like to think that falls into Rob’s category of custom service. And if it’s not a custom service, that couple should head for Shapiro’s legalzoom.com. I’m sure legalzoom.com will help them with asset titling, beneficiary designations, selection of fiduciaries, and the like.

    8. You can, of course, be for gay marriage and also be against discrimination against those who support a traditional definition of marriage.

    These people don’t exist except on the right. So with the entire left embarking on a witch hunt, RINO-squishes like Rob, much as I like him, will be quick to declare, “Hey, don’t look at me. I’m all for gay marriage. I could take or leave that religious stuff. Say, am I still invited to the next pre-witch hunt cocktail party?” And with that, we’ll have one-party rule with the 2016 election, and the eventual amnesty will only lock that in.

    I’m not sure it’s a “witch hunt.”  I mean, come on: the law in Indiana is the law, signed by the governor.  You and I may disagree on its intent — though I suspect we agree that the actual words in it aren’t nearly what its opponents say they are — I’d be happier if we all stopped trying to ascribe to the other side some sinister witch-hunt-like motives.  It’s hard to cast Governor Pence and the Indiana law’s supporters as victims, here.  They got the law passed.  They’re powerful enough to do that.  Now there’s blowback — some if it hysterical — but that’s life.

    • #14
  15. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    Stay tuned. I understand Rob is planning another post about reinstating Kenneth’s Ricochet account.

    • #15
  16. Rob Long Editor
    Rob Long
    @RobLong

    BThompson:Rob, I don’t believe you are this naive, so it makes me suspicious of your true beliefs. The “fix” leftist activists want for the Indiana RFRA and the one Mike Pence seems ready to grant, is one that removes that pizza owners religious right to deny a catering request from a couple at their wedding. That is the only “fix” on the table.

    The law as written and signed gave all the protections that gay people needed, there was no fix necessary. Now that law will be gutted and there will be no room for sincere religious conscience to oppose being trampled. You need to wake up, Rob.

    And know this, calling the Catholic Church anti-gay because it believes that the procreative nature of marriage and sex is sacred does indeed add to making the Church a target of the state by leftists. You cannot have it both ways, Rob. I’m disgusted at your hairsplitting and dissembling in this issue.

    Hairsplitting is what the law is all about.  And we’re talking about a law and its applications.

    Dissembling is something else, which I’m emphatically not doing.  If I were, I wouldn’t be bothering to make this point.  I’d just be agreeing with the majority of the commenters here and my friend Peter.

    That you’re “suspicious of my true beliefs” is a sign that this debate is almost irretrievably toxic.  If we can’t accept each others’ arguments in good faith, then we’ll always be talking past each other.

    Which has sort of happened in Indiana, I think.

    To further clarify — or maybe muddle — my point, I point to this piece by Andrew Walker in NRO.  He essentially, I think, agrees more with you than with me.  But he also points out that before Indiana enacted their version of the RFRA, the situation was really not that dire.  Somehow, without the intervention of the state, people figured it out.  Maybe it would have been better to let them continue to do so.

    • #16
  17. Roberto Member
    Roberto
    @Roberto

    Mulling over all these recent events it occurs to me that some of the biggest beneficiaries may be those no one was expecting. With Christians feeling they are under assault political leaders who are unabashed in their faith and defend it vigorously will begin to seem much more attractive.

    I can easily see the firestorm in Indiana leading to a groundswell of support for Mike Huckabee and Rick Santorum.

    Addendum: I haven’t had a chance to listen to the podcast yet, just ruminating on the debate.

    • #17
  18. EJHill Podcaster
    EJHill
    @EJHill

    Peter Robinson:  …or would be if you used a more flattering headshot in this week’s (brilliant, again, as if, at this point, anyone needed to say so) graphic.

    I hired a wonderful photographer to take new headshots of everybody. But he’s gay and declined my business. So, I’m trying to find a new photog someplace near West Lafayette.

    • #18
  19. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    Rob Long

    “But he also points out that before Indiana enacted their version of the RFRA, the situation was really not that dire. Somehow, without the intervention of the state, people figured it out. Maybe it would have been better to let them continue to do so.”

    The purpose of the statute was to preclude the entirely predictable intervention of the state through the courts to invalidate what the “people” had figured out. That you don’t recognize this dynamic is disturbing.

    • #19
  20. NYC Supporter Inactive
    NYC Supporter
    @RedFishBlueFish

    I think Rob has a pretty balanced view.  #10 seems about right.

    My problem is that I no longer think that the left will permit the balance inherent in Rob’s approach to persist.  And I don’t think its because they are evil or witches or something malevolent.  I think its because the left no longer values balancing individual liberty and non-discrimination.  Assume for a moment that we adopt a legal standard that comports to #10 above.  How long do we think it would be before the left invented a new legal theory to undermine that balance in a manner that further pushes the boundary?  How long do you think until a judge somewhere decides that the distinction between selling a cake and creating a cake is not substantial in light of the government’s compelling interest to prevent non-discrimination?

    Rob – while I pretty much agree with your view on this, I think you are missing something.  People are not necessarily reacting to the current treatment of gay marriage and/or protections for religious liberty (although many are).  I think a lot of people are fearful because we don’t think its possible to maintain that balance in the current climate.  It’s a only a matter of time before courts generally accept the principle of forcing people to celebrate the lifestyles of others.

    I am a practicing lawyer, and as I read RFRA, the courts can apply it to get to exactly the balance you mention above.  It’s admittedly harder in IN to protect sexual orientation because its not a statutory protected class, and therefore the burden of showing a compelling interest is harder to meet, but its not an insurmountable hurdle and would likely apply in the case of the baker who refuses to sell a cake off the shelf to a gay customer.

    The key in this debate is really how the left reacted to a very balanced law.  We get 3 minutes of hate out of them.  That is the real issue here because that is telling you what is coming next.  The balance inherent in your number 10 above will be completely destroyed in favor of putting non-discrimination in complete supremacy over individual liberty.  How long do you think it will be until some judge somewhere declares that the Catholic Church cannot get an exemption for religious matters from the public accommodation laws in how it runs its schools even if RFRA includes a specific exemption for churches?  Think that is crazy?  Try adopting a kid through the Catholic Church in San Francisco.  (Hint:  you can’t).  That level of intolerance will be the norm soon.  The left’s reaction to RFRA is setting many of us off here even though we recognize that discrimination against sexual orientation is wrong because we are sure its not going to stop at simply eliminating discrimination.  Pretty soon, its going to be about eliminating thought.

    • #20
  21. Rob Long Editor
    Rob Long
    @RobLong

    Basil Fawlty:Rob Long

    “But he also points out that before Indiana enacted their version of the RFRA, the situation was really not that dire.Somehow, without the intervention of the state, people figured it out.Maybe it would have been better to let them continue to do so.”

    The purpose of the statute was to preclude the entirely predictable intervention of the state through the courts to invalidate what the “people” had figured out.That you don’t recognize this dynamic is disturbing.

    But it doesn’t preclude them.  Courts overrule the state all the time.

    • #21
  22. user_30416 Inactive
    user_30416
    @LeslieWatkins

    As someone who cannot stand the outrage culture we live in, I nonetheless feel like I’m being had by moralists who claim they can easily cut the difference between gay people and public commerce, at least on the issue of catering gay weddings. This is because I see no sign that they are concerned about the sexual proprieties of their heterosexual customers who come in requesting services. It’s as if being heterosexual and uttering the word “marriage” is all that’s needed to get you into the dance. Perhaps I’m wrong, but if bakers and florists started asking their heterosexual clients who are getting married: “Okay, it’s important to me morally to ask: Do you fornicate, or are you still virgins?” that they would soon discover an outrage so intense that they would quickly decide that the couple’s personal business is their own. (I recognize that the pizza people were completely ambushed, but the baker was not.) If I saw more critiquing of the despoiling of marriage by heterosexuals, I might believe that there is no hidden agenda when it comes to being against gay marriage–which, FWIW, I’m not for. (I’m for civil unions because for many religious people marriage is a sacrament, and I respect that tradition, and it’s simply too late to extract that idea from the law. In my ideal world marriage would not even be dealt with by the state. I like Carly Fiorina’s approach on this for sure.)

    Also, James Lileks, please call your house. A couple of really lucky girls live there.

    • #22
  23. Nick Stuart Inactive
    Nick Stuart
    @NickStuart

    Rob:

    Thank you for taking the time to write an extended and thoughtful response.

    Lettered points to avoid any confusion that this is a point-by-point reply:

    A. You don’t like the American Family Association. OK fine, I don’t care for them particularly either. However regardless of their motives, or the motives and wink-winks Republican State Representatives may have given their constituents, what’s going to apply in court is not the law’s murky antecedents, but what the law actually says. And all it says is that the state must have a compelling interest, and use the least restrictive means to advance it.

    B. RFRAs were OK as long as they were used to protect Native Americans who wanted to drink peyote-infused tea, and Muslim inmates who wanted to grow a beard. Now the advocates of Same Sex Marriage have their hair on fire because a RFRA might be used as a defense by a Christian person or business who have a conscientious objection to doing something the Left wants the state to force them to do.

    C. “Geez, shut up and bake the cake already, what’s it going to hurt” = “Geez, shut up and put a pinch of incense before the genius of the emperor already, what’s it going to hurt.” There is a subset of people who call themselves Christian who are simply not going to do it.

    D. Still looking for specific examples of how gays have been harmed by RFRAs. Examples of Christians harmed by the state forcing them to serve SSMs are plentiful, QED the previous post.

    E. Yes, in the past gays have been mistreated. By society at large generally, and many Christians specifically. In the past Christians have been ruthlessly and relentlessly persecuted. Still happening today in other parts of the world and we would like to do what we can to prevent it from occurring in this country as well. Of course there’s a difference between being fined $13,000 for refusing to allow a SSM on your property, or being threatened with jail and being tortured and/or beheaded. There’s also a difference between someone refusing to let you have your wedding on their property and being hung, as happens to gays in human rights paradises where people like Tim Cook of Apple are pleased to do business, or thrown off a tall building. There are probably enough death threats to go around. So let’s all just CTFD about who’s the bigger victim.

    F. Speaking of death threats. Not every Christian is in the non-violent pacifist tradition. The Left pushes, pushes, pushes, and pushes. Confident nobody is going to call them on it in any way that really matters. At some point the baying mob is going to overstep itself with someone prepared to push back (maybe this issue, maybe another issue, but it will happen if we continue on the way we’re going). It isn’t going to be pretty, and it is going to be a very hard genii to get back into the bottle.

    G. Monogamous, male-female marriage is a bearing wall of civilization (albeit one that’s fallen into much disrepair lately, and one whose advocates are also active participants in weakening). Until the day before yesterday historically speaking no culture has thought of redefining it. There is no way of predicting the long term effects of demolishing that wall. But demolish it we are.

    H. Because SSM was effected largely by judicial ukase, like abortion, instead of by elected legislature or referendum; SSM, like abortion, is going to remain a contentious issue well into the future. This issue is not going away any time soon.

    I. Ultimately you have nothing to worry about because the absolutely spineless politicians who comprise the upper reaches of the Republican party are going to cave in on this like they cave in on anything that draws a frowny face from the media.

    • #23
  24. Rightfromthestart Coolidge
    Rightfromthestart
    @Rightfromthestart

    Blondie:Andy needs to get out of D.C. if he thinks we aren’t pick-up country. Come on down here to North Carolina and I can introduce you to pick-up country.

    Mr. Ferguson has also been in Washington too long if he thinks campaigning as a conservative and then governing as a moderate is acceptable behavior. Lawyers might call that ‘fraud in the inducement’, pick-up truck drivers might just call it ‘lying’.

    James hit it right on the head in that Jeb seems to be seeking the approval of people who would never vote for him. I might add while kicking conservatives in the nether regions if need be.

    • #24
  25. BuckeyeSam Inactive
    BuckeyeSam
    @BuckeyeSam

    Rob, if what’s happened to that IN pizza outfit isn’t a witch hunt, nothing is. Nothing. Fine, it doesn’t involved state power. But with a Fourth Estate that’s nothing but an extension of the progressive state, who needs the state? Somebody answered a hypothetical question in good faith about a situation described as catering, so it seems to fall in the category of a custom service–and they’ve been run out of business. They didn’t deny hungry people food. They didn’t deny tired people a room at the inn.

    I think sexuality is a complex matter. For some reason, about 2% of us have same-sex attraction. I fear that the SSM tidal wave will normalize homosexuality and prompt coastal elites–who monopolize virtually all media outlets–to encourage far too many impressionable adolescents to experiment with it. I don’t think that’s good for society.

    Beyond that, I’ve tired of who normalization–rather, celebration–of homosexuality has elevated mediocre people to a certain status for no reason other than their homosexuality. After all, why does my local paper have to point out that a certain local councilman is gay almost every time he quoted or mentioned in the paper.

    One last thing. I’ve never understood the equal protection argument regarding homosexuality. Gender, race, and national origin are unquestionably accidents of birth. Discrimination based on those characteristics is abhorrent. Religious belief, or creed, is a little different. Even though many of us largely adopt the faith in which we’re raised–hey, I got baptized in a hospital chapel just before major surgery at three weeks of age–but somewhere along the way, as adults, we can be said to adopt our faith. And in the USA, we don’t regulate religious belief except to the extent it crosses over into conduct considered for some reason objectionable.

    With homosexuality, as I’ve said, who can explain same-sex attraction? Not to be facetious, but no one has identified a gay gene, and I don’t anyone will. As a result, the leap from attraction to conduct is a voluntary act. The problems arise when same-sex attractions are acted upon. Clearly, it’s no longer illegal, and it shouldn’t be. But if I consider it a regrettable sin, must I be required to celebrate it and to perform a custom service/product in support of a SSM wedding or substantial support of same-sex union.

    By the way, does anyone have information about the health aspects of homosexuality?

    • #25
  26. Rob Long Editor
    Rob Long
    @RobLong

    Red Fish, Blue Fish:I think Rob has a pretty balanced view. #10 seems about right.

    My problem is that I no longer think that the left will permit the balance inherent in Rob’s approach to persist. And I don’t think its because they are evil or witches or something malevolent. I think its because the left no longer values balancing individual liberty and non-discrimination. Assume for a moment that we adopt a legal standard that comports to #10 above. How long do we think it would be before the left invented a new legal theory to undermine that balance in a manner that further pushes the boundary? How long do you think until a judge somewhere decides that the distinction between selling a cake and creating a cake is not substantial in light of the government’s compelling interest to prevent non-discrimination?

    Rob – while I pretty much agree with your view on this, I think you are missing something. People are not necessarily reacting to the current treatment of gay marriage and/or protections for religious liberty (although many are). I think a lot of people are fearful because we don’t think its possible to maintain that balance in the current climate. It’s a only a matter of time before courts generally accept the principle of forcing people to celebrate the lifestyles of others.

    I am a practicing lawyer, and as I read RFRA, the courts can apply it to get to exactly the balance you mention above. It’s admittedly harder in IN to protect sexual orientation because its not a statutory protected class, and therefore the burden of showing a compelling interest is harder to meet, but its not an insurmountable hurdle and would likely apply in the case of the baker who refuses to sell a cake off the shelf to a gay customer.

    The key in this debate is really how the left reacted to a very balanced law. We get 3 minutes of hate out of them. That is the real issue here because that is telling you what is coming next. The balance inherent in your number 10 above will be completely destroyed in favor of putting non-discrimination in complete supremacy over individual liberty. How long do you think it will be until some judge somewhere declares that the Catholic Church cannot get an exemption from the public accommodation laws in how it runs its schools even if RFRA includes a specific exemption for churches? Think that is crazy? Try adopting a kid through the Catholic Church in San Francisco. (Hint: you can’t). That level of intolerance will be the norm soon. The left’s reaction to RFRA is setting many of us off here even though we recognize that discrimination against sexual orientation is wrong because we are sure its not going to stop at simply eliminating discrimination. Pretty soon, its going to be about eliminating thought.

    Yes, you may be right.  I certainly do agree with you about the way the opposition has treated this law and its true meaning.  And you may be right about what the future holds — more litigation, more judicial activism, that sort of thing.  But here I’m only asking a question, from a non-lawyer to a lawyer, that I genuinely don’t know the answer to:  would the passage of a non-discrimination law in Indiana that specifically protects homosexuals make things clearer or murkier?  Would they offer actual protection to the (I hope) majority of gay Indianans who just want to be protected against the Baker Who Won’t Sell the Cake but don’t want to abridge someone else’s religious rights?  And if so, then why are all my friends on the right against it?  And if not, then how do you propose — assuming there’s a way — to reassure both sides that this isn’t Act One to further rights trampling upon either side?

    I mean, if you take everyone at their word, a simple clarification of the type that Governor Pence suggests should work?  As a lawyer, what do you think?

    Oh, and thanks for being nice to me.

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  27. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    Rob Long

    “But it doesn’t preclude them. Courts overrule the state all the time.”

    Or the state, through the courts, overrules the people all the time.

    • #27
  28. Rob Long Editor
    Rob Long
    @RobLong

    Nick Stuart:Rob:

    Thank you for taking the time to write an extended and thoughtful response.

    Lettered points to avoid any confusion that this is a point-by-point reply:

    A. You don’t like the American Family Association. OK fine, I don’t care for them particularly either. However regardless of their motives, or the motives and wink-winks Republican State Representatives may have given their constituents, what’s going to apply in court is not the law’s murky antecedents, but what the law actually says. And all it says is that the state must have a compelling interest, and use the least restrictive means to advance it.

    B. RFRAs were OK as long as they were used to protect Native Americans who wanted to drink peyote-infused tea, and Muslim inmates who wanted to grow a beard. Now the advocates of Same Sex Marriage have their hair on fire because a RFRA might be used as a defense by a Christian person or business who have a conscientious objection to doing something the Left wants the state to force them to do.

    C. “Geez, shut up and bake the cake already, what’s it going to hurt” = “Geez, shut up and put a pinch of incense before the genius of the emperor already, what’s it going to hurt.” There is a subset of people who call themselves Christian who are simply not going to do it.

    D. Still looking for specific examples of how gays have been harmed by RFRAs. Examples of Christians harmed by the state forcing them to serve SSMs are plentiful, QED the previous post.

    E. Yes, in the past gays have been mistreated. By society at large generally, and many Christians specifically. In the past Christians have been ruthlessly and relentlessly persecuted. Still happening today in other parts of the world and we would like to do what we can to prevent it from occurring in this country as well. Of course there’s a difference between being fined $13,000 for refusing to allow a SSM on your property, or being threatened with jail and being tortured and/or beheaded. There’s also a difference between someone refusing to let you have your wedding on their property and being hung, as happens to gays in human rights paradises where people like Tim Cook of Apple are pleased to do business, or thrown off a tall building. There are probably enough death threats to go around. So let’s all just CTFD about who’s the bigger victim.

    F. Speaking of death threats. Not every Christian is in the non-violent pacifist tradition. The Left pushes, pushes, pushes, and pushes. Confident nobody is going to call them on it in any way that really matters. At some point the baying mob is going to overstep itself with someone prepared to push back (maybe this issue, maybe another issue, but it will happen if we continue on the way we’re going). It isn’t going to be pretty, and it is going to be a very hard genii to get back into the bottle.

    G. Monogamous, male-female marriage is a bearing wall of civilization (albeit one that’s fallen into much disrepair lately, and one whose advocates are also active participants in weakening). Until the day before yesterday historically speaking no culture has thought of redefining it. There is no way of predicting the long term effects of demolishing that wall. But demolish it we are.

    H. Because SSM was effected largely by judicial ukase, like abortion, instead of by elected legislature or referendum; SSM, like abortion, is going to remain a contentious issue well into the future. This issue is not going away any time soon.

    I. Ultimately you have nothing to worry about because the absolutely spineless politicians who comprise the upper reaches of the Republican party are going to cave in on this like they cave in on anything that draws a frowny face from the media.

    I agree with pretty much 100% of this.

    • #28
  29. Rob Long Editor
    Rob Long
    @RobLong

    Basil Fawlty:Rob Long

    “But it doesn’t preclude them.Courts overrule the state all the time.”

    Or the state, through the courts, overrules the people all the time.

    True enough.

    • #29
  30. NYC Supporter Inactive
    NYC Supporter
    @RedFishBlueFish

    Rob Long:But it doesn’t preclude them. Courts overrule the state all the time.

    It’s not correct

    Rob Long:

    Basil Fawlty:Rob Long

    “But he also points out that before Indiana enacted their version of the RFRA, the situation was really not that dire.Somehow, without the intervention of the state, people figured it out.Maybe it would have been better to let them continue to do so.”

    The purpose of the statute was to preclude the entirely predictable intervention of the state through the courts to invalidate what the “people” had figured out.That you don’t recognize this dynamic is disturbing.

    But it doesn’t preclude them. Courts overrule the state all the time.

    Rob is partly correct:  The courts would not be precluded from “overruling” the peoples’ choices through their legislatures.

    Basil is partly correct:  RFRA was intended to limit courts in their attempts to do that.

    In the end, what RFRA does is make it harder for a court to impose on an individual an obligation to participate in something in violation of religious belief because the plaintiff/state would need to either (i) show a compelling state interest (together with least restrictive means) or (ii) a violation of the IN or US Constitution.  Without RFRA, and with the current state of both state and federal application of non-discrimination laws, it possible that the standard would be only a rational basis test or some other lower standard – i.e. the law of general applicability standard from Scalia’s opinion that set off the RFRA movement.  Or a court could just misinterpret a common law standard.  Having a statutory standard minimizes that risk.

    RFRA is meant to raise the bar to protect the choices of the people from arbitrary court interference.  It does not bar that interference, just makes it harder and in line with how we treat many of the rights guaranteed by the Bill of Rights (i.e. strict scrutiny).  It’s actually a pretty good balance.

    • #30