Archaic Laws Revived with Homophobic Intent in Indiana and Arkansas

Its a bill where they dare not speak its purpose or state its goal says Bill Black, former financial regulator

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SHARMINI PERIES, EXEC. PRODUCER, TRNN: This is the Bill Black report on the Real News Network. I’m Sharmini Peries coming to you from Baltimore.

Twenty states have religious freedom laws. The recently passed Indiana’s law, written more expansively than other states, has caused a national uproar. Critics say it could be used buy businesses to deny services to gay and lesbian couples. Arkansas has passed a similar bill.

Now joining us to talk about all of this is Bill Black. Bill is an associate professor of economics and law at the University of Missouri — Kansas City. He’s a white-collar criminologist and a former financial regulator. He’s the author of The Best Way to Rob a Bank is to Own One.

Thank you so much for joining us, Bill.

BILL BLACK, ASSOCIATE PROFESSOR OF ECONOMICS AND LAW, UMKC: Thank you. Greetings from [Chito].

PERIES: Bill, tell us more about the recent bills that have been passed by Indiana and Arkansas. What’s the status of them, and what are they attempting to address here?

BLACK: These are laws that dare not speak their purpose. These are not like the federal freedom of conscience laws that were designed, essentially, to allow Native Americans who had been using peyote as part of a religious ceremony for at least hundreds of years and maybe thousands of years to continue to use it without being arrested, because peyote is classified as a narcotic.

Now these laws, while they never mention gays and lesbians and such — and for brevity I’ll just use the word gay — are designed to allow merchants to refuse services to gay people. And it’s been [stored] up by litigation in other states, where for example bakers have refused to do wedding cakes for gay couples when they were going to get married.

So that’s the purpose, but there’s nothing in the statute that mentions gays, or blacks, or any other group. In fact, it’s drafted in a way that is incredibly open-ended and pernicious. What it says is, you don’t have to have any recognized religious believe that comes from, for example, scripture. You can have any belief system — that blacks are inferior, that Jews are cheats, whatever. And as long as you claim that that comes from religious roots, then the government, the burden of proof is switched to the government. And the government must prove that it has a compelling need to interpret this law in this manner that would obstruct your religious belief, for example the religious belief that you shouldn’t touch black people, as a merchant. And the government can only win if it a) has a compelling need, and b) that it’s the least restrictive way of getting that need.

And the law in Arkansas is even more aggressive. It actually uses the word essential. So you can only win as the government if the only way of fulfilling your purpose is to have this restriction on this fake religious belief that someone has just invented about black people.

Now, this of course raises the question, so what’s the government purpose? If the government purpose is to make sure that you can go buy a wedding cake, well of course you don’t have to buy the wedding cake from any particular bigoted bakery. You could go to a different bakery. So if the purpose is to make sure you can get a cake, then gays will always lose under this standard.

If the purpose is to prevent discrimination in the economy — you know, that you can have whatever personal religious beliefs or nonreligious beliefs you want, but when you open up for business you open up for the public. If that’s the standard, then these laws are likely to be struck down.

But if you look at the laws more specifically, they allow you to — you the merchant – to seek what’s called a declaratory judgment. This is a judgment that says from the court, hey, this is what the law means. And so you could, in Indiana for example, find some ultra, ultra homophobic Justice of the Peace in some rural community and bring a declaratory judgment action that says, I’m a merchant, I’m likely to be affected by gay people because whatever, 5% of Indiana’s population is gay. And so issue a declaratory judgment that says I don’t have to serve them. And that, of course, would protect you against discrimination.

But while this is phrased as being designed to help merchants, as a group, merchants hate this. And it’s the business community as much as the lesbian gay bisexual transgender community that is up in arms and fighting these laws.

PERIES: So then what’s the goal of these? I mean, why are these laws being passed, and in whose interest?

BLACK: Oh, well, basically in nobody’s interest. They are designed to do a weird jujitsu move. So they try to define that if a gay person wants a service, and the, someone invents a religious basis for not dealing with gay people, that it is an act of discrimination to make the merchant deal with the gay person. And therefore, any anti-discrimination laws designed to protect gays are actually discrimination laws, because they discriminate against somebody who might invent some religion that says you should never serve gays, even though there’s nothing in Christian or Islamic –

PERIES: This is a bizarre, twisted linguistics. Something like the right to work labeled legislation that was recently passed in some states.

BLACK: And quite deliberate. That’s why Pence, Governor Pence of Indiana was asked six times by Stephanopoulos, will this allow you, the merchant, to refuse to serve gay customers? He refused six times. And even John only refused to answer three times before the cock crowed.

PERIES: Bizarre things happening in the U.S. Thank you so much for joining us, Bill, and exposing it.

BLACK: Thank you.

PERIES: And thank you for joining us on the Real News Network.

End

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