Wednesday, May 20, 2015

Jindal makes a legal mess while licensing discrimination

Bobby Jindal

Bobby Jindal, Governor of Louisiana signed an odious executive order on Tuesday. Louisiana already has no LGBT protections so this enshrines second-class citizenship status. It was a face-saving stunt designed to obscure the fact that he was unable to get his agenda through a legislature dominated by his own political party. Before getting into the effect of the executive order, it is important to understand a bit about the executive orderer.

Bobby Jindal has the zeal of a Catholic convert — a warrior for Christ and a Defender of the Faith. If you want to understand Jindal you need to understand his fundamentalist faith. In 1994, Jindal wrote a piece for the conservative Catholic New Oxford Review titled “Beating a Demon — Physical Dimensions of Spiritual Warfare.” This Rhodes Scholar and extraordinarily intelligent man actually believes in the physical presence of demons and the need for exorcisms.

In another piece in the same review, Jindal proclaims Catholic supremacy over all other forms of Christianity (I cannot begin to imagine what he thinks of Jews):
Just as C.S. Lewis removed any room for comfortable opposition to Jesus by identifying Him as either "Lord, liar, or lunatic," so the Catholic Church leaves little room for complacent opposition to her doctrines. Without inflating the issues that separate Catholics from Protestants, for we do worship the same Trinitarian God who died for our sins, I want to refute the notion that Catholicism is merely another denomination with no more merit than any other.

The Contradictory Executive Order

The executive order is limited in scope and, unlike the bill that was proposed, it does not effectively nullify local non-discrimination ordinances; Baton Rouge, New Orleans, and Shreveport, along with the parish of Jefferson prohibit discrimination on the basis of sexual orientation and gender identity.

However, in some instances, it narrows those ordinances, only to their application in a public accommodations. Moreover, it licenses some forms of discrimination. For example, a state contractor could discriminate against a married gay employee, not provide comparable marital benefits or even not hire the person in the first place. In New Orleans, the courts would have to untangle the jumble of executive order vs. local law if the city prosecuted an anti-discrimination claim. Jindal has made a mess.

The dishonesty and incongruity are obvious and offensive. Jindal is passing this off as something comparable to the federal Religious Freedom Restoration Act. He even takes notice in the executive order of Louisiana's comparable law (highlight added):
WHEREAS, in 2010, the Governor made part of his legislative package and signed into law the Preservation of Religious Freedom Act to further protect the free exercise of religion by making clear:

Government shall not substantially burden a person's exercise of religion, even if the burden results from a facially neutral rule or a rule of general applicability, unless it demonstrates that application of the burden to the person is both:

(1) In furtherance of a compelling governmental interest.
(2) The least restrictive means of furthering that compelling governmental interest.
The key here is the idea of substantial burden. There is no substantial burden for those infamous cake bakers, flower arrangers and pizza makers. A substantial burden is forcing a kosher market to sell pork to satisfy gentile customers.

The language in Jindal's order is quite different:
SECTION 2: All departments, commissions, boards, agencies, and political subdivisions of the state are authorized and directed to comply with the restrictions placed upon government action in the Preservation of Religious Freedom Act and, including more specifically, on the basis that such person acts in accordance with his religious belief that marriage is or should be recognized as the union of one man and one woman, shall take no adverse action to:

A. Deny or revoke an exemption from taxation pursuant to La. R.S. 47:287.501 of the person who is acting in accordance with his religious belief.
B. Disallow a deduction for state tax purposes of any charitable contribution made to or by such person.
C. Deny or exclude such person from receiving any state grant, contract, cooperative agreement, loan, professional license, certification, accreditation, employment, or other similar position or status.
D. Deny or withhold from such person any benefit under a state benefit program.
E. Deny, revoke, or suspend the accreditation, licensing, or certification of any person that would be accredited, licensed, or certified for purposes of Louisiana law but-for a determination against such person on the basis that the person acts in accordance with his own religious belief.
Not only has the concept of substantial burden been eliminated but Jindal hasn't even bothered with the idea of sincerely held religious belief. All that is required is to oppose same-sex marriage. This means anyone can claim the exception and discriminate at will and still obtain or retain a state contract. Person, by the way, means any individual, group, club, organization or corporation.

This is not about politics. This is about religion. Jindal is protecting the Church,  Catholic Charities and the Knights of Columbus. It's just that simple.

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