Home / General / Mike Pence Makes Idiotic Argument to Defend Horrible Law

Mike Pence Makes Idiotic Argument to Defend Horrible Law

Comments
/
/
/
737 Views

mike_pence_0

It should go without saying that Indiana’s Restoration of Bigotry Act is an abomination. I can’t resist, however, noting this particularly asinine defense of the statute from the governor:

“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it,” Pence said in his statement Thursday. “For more than 20 years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.”

Uh, can someone show me where the federal RFRA permits burdens on religious liberty to be invoked in suits between private parties? Because it seems to be missing from my copy of the statute. Which seems relevant, since such a provision is in Indiana’s statute and is what will undermine the state’s anti-discrimination laws. I concede Pence’s point: if the law he signed was different it would have different effects. The one he did sign, however, is a disgrace.

…relevant!

FacebookTwitterGoogle+Share
  • Facebook
  • Twitter
  • Google+
  • Linkedin
  • Pinterest
  • rea

    “Uh, Governor Pence, isn’t that dog poop on your shoe?”

    “This shoe is not about dog poop, and if I thought it legalized dog poop in any way in Indiana, I would have vetoed it.”

  • JMG

    Wasn’t it Matt Yglesias who said that Pence was the dumbest person he met in Washington bar none?
    Memo to those concerned: Boycott letters to Eli Lilly might have some effect.

    • dl

      Yup, it was MY.

    • saminmpls

      I believe this is post in question and it is quite wonderful:

      There are very few members of congress with whom I’ve ever had the opportunity to discuss a substantive matter of public policy. But as it happens, one of them — the one with whom I’ve had the second-longest exchange — is Mike Pence (R-IN) who I’ve seen on television today repeatedly discussing the Republican Study Group’s “plan” for the financial crisis. And I can tell you this about Mike Pence: he has no idea what he’s talking about. The man is a fool, who deserves to be laughed at. He’s almost stupid enough to work in cable television.
      Specifically, way back in 2005 I got to talk to him about Social Security privatization at a Heritage Foundation event. Obviously, I have my perspective on this and conservatives have theirs. But Pence had a truly peculiar idea. His idea was that the government ought to reassure people about the risks of losses under a privatization plan by having the government guarantee a minimum annuity level pegged to what’s promised under current law. This plan would, according to Pence, save money relative to current law because most people’s stock/bond portfolio would outperform the level needed to provide such an annuity, so the government would only need to kick in for a minority of people. I said I thought this would create a moral hazard problem for bad investors. He had no idea what I was talking about. Seemed unfamiliar with the term. Then I tried to explain it to him, I said that if the government guaranteed to bail you out in case of losses, then investors would make riskier investments and the number of people who need bailing out would rise. He just flat-out denied this, said the presence or absence of a guaranteed bailout would have no impact on investor behavior. He seemed unaware that some portfolios are riskier than others, or that higher average rates of return are associated with greater risk taking. He didn’t know anything at all, in short, about investing, financial markets, or, seemingly, the basic terms of public policy. And yet there he was speaking on the topic at Heritage. He’s a total fraud.

      • Hogan

        He’s almost stupid enough to work in cable television.

        Burn.

        • timb

          Prior to running for office, he did host a radio talk show, which liberally stole for Limbaugh

          • jim, some guy in iowa

            when describing one conservatwit stealing from another i prefer “shamelessly” to “liberally”

            (ducks)

      • Joshua

        This reminds me of one article where, I think it was Alan Simpson, proved he didn’t know how to read a mortality table. And this was when he was working on a plan to change Social Security.

        Even if one acknowledges that they pay people to understand this stuff, it’s still mind-blowing to think that these idiots are the ones proposing policy and leading debates. Stupidity, a lack of intellectual curiosity, and egomania is a really terrible and scary combination for the people who are supposed to be leading this country.

  • Shakezula

    In later remarks Gov. Pence said: “No it’s not. Nuh-uh. No it isn’t. I know you are but what am I?”

    Ted Cruz is considering him as a running mate.

    (Not really. Maybe.)

    • efgoldman

      Ted Cruz is considering him as a running mate.

      Pence is stupid enough and conservative enough and theocratic enough, but I don’t think he’s crazy enough for Tailgunner Ted.

      • So then, Brownback?

        • Shakezula

          That would be traumatic in the short term but awesometastic in the long term.

          APPROVED

  • MAJeff

    Mike Pence has always been anti-gay, and anti-gay folks don’t consider anti-gay discrimination to be discrimination.

    He’s simultaneously dishonest, bigoted, and naive. Just like the rest of the assholes in American conservatism. They’re terrible people.

    • efgoldman

      Mike Pence has always been anti-gay, and anti-gay folks don’t consider anti-gay discrimination to be discrimination.

      I’ve always been anti-stupid, but I’m not allowed to discriminate against stupid customers; I have to take their calls the same as the others.

      • so-in-so

        Mike Pence calls you?

  • Nick056

    I always remember Pence, after some Limbaugh-related incident, talking about how he “cherished” Limbaugh. That stood out to me as odd even for a winger. Finding out he’ll go where Brewer wouldn’t is not surprising.

  • timb

    Underestimating how much Indiana Republicans hate gays is common even for libertarian Hoosier Republicans. Even corporatists like Jim Bopp hate them some gays.

    With that said Preacher Mike is a theocrat. A mega-church loving, used car salesman, who uses pablum to hide his true agenda. Like most conservatives, he has more contempt for his followers than he does the rest of us. The difference is he hates mainstream America AND has mild contempt for it

    • rea

      he hates mainstream America

      And, believe it or not, gays are now part of mainstream America

      • MAJeff

        As a sociologist whose research focus has been on the politics of family recognition, the past couple years have been fascinating. I can’t count on the lectures having any continuity from semester to semester because of the rapidity of change. One of the things that’s been so striking, and we discussed this in my soc of family class today, has been the growing extremism of the anti-gay rhetoric. Sure, we can all recall the heyday of Ted Cruz’s favorite Senator, Jesse Helms, but there’s a bizarre part of the anti-gay right that has decided to invoke the legacy of slavery. My favorite example is Oscar Robert Lopez, who has declared that the use of reproductive technologies/surrogacy/adoption by same-sex couples is akin to slavery, because they’re purchasing a person.

        And, believe it or not, gays are now part of mainstream America

        My students simply can’t comprehend why anti-gay folks care. I keep trying to make sociological points about culture and values, and they keep coming back to, “It doesn’t matter!”

        The anti-gay bigots may realize momentary legislative victories, but they have no idea they’ve already lost the war (at least in the U.S.)

        • efgoldman

          The anti-gay bigots may realize momentary legislative victories, but they have no idea they’ve already lost the war

          True, but they can do an awful lot of damage as they are forced to retreat.

          • MAJeff

            Oh, yes. And they revel in doing that damage. They really do have shit values.

            Yes, let’s engage in a culture war. The values of American conservatism are shit.

        • mds

          the use of reproductive technologies/surrogacy/adoption by same-sex couples is akin to slavery, because they’re purchasing a person.

          Oh, hey, did anyone ever figure out how much John Roberts and his wife spent acquiring those Irish children by way of South America?

  • Funkhauser

    Three words: Greensboro lunch counters. Please, tell me how sincerely you believe you don’t have to serve all of the public. Tell me about how you’re on the right side of history, Mike.

    • AttorneyAtPaw

      “It IS different, because being black isn’t a choice!” Growing up in the Midwest, you hear ’em all…

  • saminmpls

    Gen Con threatens to move convention if Gov. Mike Pence signs religious freedom bill.

    Law passes.

    Gen Con suddenly remembers it signed a contract to hold the event in Indy through 2020 and decides it is comforted by the response from their business partners so it will “continue to show off how open-hearted, fun, and inclusive our event and the Indy community can be.”

    • Malaclypse

      I’m hoping the Disciples of Christ keep their pledge.

    • efgoldman

      Gen Con suddenly remembers it signed a contract to hold the event in Indy through 2020

      I bet a clever attorney could find a clause in the contract that allows them to bail. Hope so, anyway.

    • Mr. Rogers

      This feels a little unfair to GenCon – they are absolutely locked in to the 2015 Con this summer and doubtless want to make sure their attendees and international vendors still have a good time. How they react after this year’s con is over (and how long it takes to actually relocate – if memory serves it was a couple of years for the move from Milwaukee to Indy) will be a better indication.

      They might move heaven and earth to relocate for 2016, or take steps to move for 2017, or decide they have no choice but to stay through 2020, or continue there forever and acknowledge it was a completely empty threat, in descending order of weaselyness. If they aren’t talking about moving the 2017 con I will gladly join you in kicking them around for being weasels.

    • NonyNony

      This is unfair to Gen*Con – all of the reporting said before the bill was signed that they had a contract through 2020 and would probably have to honor it, but that they would be looking to move after that if the bill passed.

      They are not going to be able to move this year and so what are they supposed to say? (I actually do believe that the businesses in Indianapolis are truly upset by this because Indy is the most liberal part of the entire state – the majority of folks there didn’t want this and especially the folks in the convention area know that everyone’s money is good when it comes time to pay the bills no matter how they personally feel about them.)

      But I do hope that Gen*Con starts loudly looking for alternatives for after 2020. Ohio is right next door and while we’re not THAT much better than Indiana our religious nutcases don’t quite have the same level of power that Indiana’s do (nor do we have the ugly history with the Klan that I suspect is the same root for this – Pence may not believe that he’s signed in a law that allows business owners to discriminate against Jews, but in fact he has. And it’s gonna get ugly in Indiana because someone is going to take him up on that – probably sooner rather than later.)

  • DrDick

    *sigh*
    Sadly, a very similar law is slithering through our Rethuglican dominated state legislature. The upside here is that our Democratic governor will likely veto it and I do not think they have the votes to override that.

  • David Nieporent

    Uh, can someone show me where the federal RFRA permits burdens on religious liberty to be invoked in suits between private parties?

    42 U.S. Code § 2000bb–1(b)

    God (or FSM if you prefer) save us from political science professors pretending to be lawyers.

    Also, Indiana does not cover sexual orientation in its anti-discrimination laws in the first place (though some municipalities do), and a person seeking to invoke the RFRA to evade anti-discrimination laws would still have to establish a substantial burden on their religious beliefs and overcome the compelling interest test, which would almost certainly fail.

    • JMP

      Well no, at least not according to the five idiots on the Supreme Court behind the Hobby Lobby decision, in which the “burden” alleged by the employers who wanted to prevent their employees from using birth control was so insubstantial it didn’t even exist. Under that precedent, “substantial burden” basically means “whatever excuse to discriminate the bigot pulls out of his ass”.

      But yeah, this is an example of the horrible consequences of failing to add sexual orientation to federal anti-discrimination laws, which allow states to pass awful laws to allow open discrimination as long as the bigot claims religious motivation towards their discrimination.

    • Scott Lemieux

      [Checking to find text of Indiana statute — David may be correct that the language is the same.]

      …the language of the statutes is in fact different, as the Libelson story says. Indiana RFRA:

      Provides that a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a state or local government action may assert the burden as a claim or defense in a judicial proceeding, regardless of whether the state or a political subdivision of the state is a party to the judicial proceeding.

      Federal RFRA:

      (c) Judicial relief
      A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

      At the very least, the Indiana statute clearly authorizes RFRA claims in suits between private parties, and the federal RFRA does not.

      • Anon21

        I would think that RFRA would constitute a defense in a lawsuit brought by a private party, although I’m trying to think about the substantive context in which that would arise. The Civil Rights Act expressly exempts religious organizations, although post-Hobby Lobby, a non-religious organization run by religious owners could presumably invoke RFRA in an employment discrimination suit. (Gender discrimination, probably.)

        • JMP

          It could be invoked to justify any discrimination, really; back in the 70s Bob Jones University tried to use “but our religion tells us to hate black people!” as a defense against violating the Civil Rights Act, pretty much the same as “but our religion tells us to hate gay people!” defense authorized by these pro-discrimination laws.

          • DrDick

            The Bible is objectively pro-slavery and female subordination, as well as stoning gays, that covers a lot of territory.

        • Nick056

          For RFRA to work as a claim as opposed to a defense, you’d need a strong nexus between the state action and the conduct of the private parties in question. Perhaps if someone who could only be fired for cause wanted to engage in discrimination, and the employer made it clear the employee would be terminated for doing so, with a cite to a law or regulation barring that employer from engaging in discrimination, then the employee could seek a declaratory RFRA claim against the employer on the theory that the the government action can’t overcome RFRA and so the employer’s grounds for dismissal do not meet a good cause test.

          That, I guess, might work. But I find that pretty tenuous. I think in terms of a claim, in a private employment context, people would just find Title VII a better bet.

      • Nick056

        Scott —

        It’s worth adding that David surely remembers that this language is part of the Indiana RFRA because in Elane Photography the NM Supreme Court held that the NMRFRA was not applicable in a suit between private parties (pg 25 of linked decision). Beyond this, the NM CoA decision looked at decisions on the Federal RFRA as applied to suits between private parties to help establish a framework for its own analysis. It relied on Tomic v. Catholic and Diocese of Peoria and Rweyemamu v. Cote to determine that US RFRA did not apply to suits between private parties.

        Shorter version: this is classic Nieporent in troll mode.

        • Scott Lemieux

          Right. The Indiana legislators did not include this language by accident.

      • timb

        As a lawyer and as someone who has read Dave’s angry, dishonest libertarian bullshit for years, one wonders he thinks being an attorney is so special? Any moron can read a statute

        • DrDick

          one wonders he thinks being an attorney is so special?

          Having witnessed these outbursts over the years, I do not think he believes lawyers are so special so much as he believes (contrary to all evidence) that he is so special.

        • rea

          Any moron can read a statute

          David ain’t just any moron/

          • The Dark Avenger

            He can pour water out of a boot with the instructions written on the heel.

    • Nick056

      David —

      This is a bit disingenuous. First, judges can bend substantial burden like B.B. King bending notes on the blues scale. I am not at all persuaded that having to establish a substantial burden is a meaningful bar in any case with a sufficiently political valence in the right forum.

      Second, overcoming the compelling interest test would be highly context specific, so saying a prospective litigant would “almost certainly” fail to do so is pretty broad. Even if it’s established that the government action furthers a compelling interest, Indiana RFRA would also require establishing that the action furthers that interest by the least restrictive means. That might fail. I can imagine exactly such analysis by thinking of Hobby Lobby.

      I’m not aware of any state RFRA that includes the language Scott cites below (or above, or wherever this post lands). Can any of us really be sure what will happen when someone can use RFRA as a claim or defense when the government is not a party? I don’t think this has happened yet, but maybe you know more.

      Incidentally, it might — might! — be relevant that a Federal employee in FL. several years ago asserted a RFRA claim in Federal district court when he was fired for having dreadlocks in violation of a dress code. The suit was dismissed because the court held that the case was properly a Title VII religious accommodation claim issue, and nothing in the Federal RFRA was intended to upset the path for administrative relief outlined in the EEO process for public employees. However, I don’t know if Courts could preclude private sector employees from suing their employers under the Indiana variant of RFRA. I doubt the analysis would be quite as tidy as the CoA’s in dreadlocks case.

      • timb

        Posner will deal with it shortly. Stupid ALEC canned legislation bs

      • NonyNony

        David being disingenuous? Color me shocked.

    • Pseudonym

      I guess David Nieporent’s membership in the Church of Our Lady of Shameless Mendacity prevents him from being banned as a troll then.

    • rea

      42 U.S. Code § 2000bb–1(b)

      God (or FSM if you prefer) save us from political science professors pretending to be lawyers.

      Goddess preserve us from people who claim to be lawyers but can’t read.

      Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

      (1) is in furtherance of a compelling governmental interest; and

      (2) is the least restrictive means of furthering that compelling governmental interest.

      • rea

        I’ll add, as a lawyer myself, it really pisses me off to see someone claiming to be a lawyer who throws out a statute cite like that, expecting that no one will have the competence to pull up the statute and see what it actually says. David would be paying the other sides attorney fees if he did this in a brief.

        What’s he doing here anyway–I thought he flounced out of here a while back?

        • NonyNony

          What’s he doing here anyway–I thought he flounced out of here a while back?

          He flounces out and flounces back all of the freaking time – he was gone longer than usual this last time and hopefully get gets pissed off and goes away again given that he never adds anything honest to discussion and instead throws up clouds of lies and misdirection every single time he tries to engage.

        • gmack

          Thanks for this. When Mr. Nieporent first left this comment last night and there were no replies, I did look up the statute. And then I thought, “hmm. I don’t see anything here about private lawsuits.” But then I also recalled that I’m not a lawyer, and so maybe there was something I was missing.

          So I guess the lesson that I should trust my own reading skills over Mr. Nieporent’s assertions.

          • timb

            always.

            95% of lawyers are just people who are paid to read boring shit no one else wants to

          • NonyNony

            You should always assume that anything that Nieporent posts here is the most mendacious, deceitful, and dishonest reading of whatever he’s talking about until proven otherwise – typically by another lawyer around here with a good track record actually confirming that he’s right (which is so rare that I can’t even remember the last time it happened).

            I’m not someone who is down on lawyers in general – I have family members in the legal profession and most lawyers seem to be people who just try to do a good job. Nieporent has proven himself time and time again to not be one of those kinds of lawyers.

            • Lee Rudolph

              I’m not someone who is down on lawyers in general – I have family members in the legal profession and most lawyers seem to be people who just try to do a good job. Nieporent has proven himself time and time again to not be one of those kinds of lawyers.

              I hope and pray that posting here is his hobby, not his job.

    • cpinva

      (b) Exception
      Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

      (1) is in furtherance of a compelling governmental interest; and

      (2) is the least restrictive means of furthering that compelling governmental interest.

      “God (or FSM if you prefer) save us from political science professors pretending to be lawyers.”

      and god or FSM save us from people who can’t read pretending to interpret federal law. I think it can be (by reasonably intelligent people anyway) reasonably inferred that the gov’t has a compelling interest in ensuring that all of it’s citizens are treated equally. so, unless your religion mandates you discriminate against everyone, separately but equally, your religion should play absolutely zero part in who you serve in your business, once you open the doors of that business to the public.

      simply put, your business is availing itself of publicly funded infrastructure, funded by everyone. as a consequence, your business has a compelling obligation to serve all those folks that helped fund it, even including people you don’t like. if your personal religious beliefs require you to discriminate against some members of the public, and you insist on incorporating those beliefs into your business activity, you have no business being in business.

      this is actually a matter of public safety, an area that gov’t, at all levels, has a legitimate interest in. refusing service to some members of the general public, because your “deeply held” religious beliefs require that you do so, may well result in violence. this is not a situation we want to encourage.

  • Joe_JP

    It is not totally clear that RFRA has not undermined anti-discrimination law in certain ways especially when the groups in question do not obtain heightened scrutiny generally. See, e.g., the writings of Prof. Marci Hamilton.

    One article explains that the state law is broader than RFRA:

    Rather than solely banning government from burdening a person’s religious freedom, the Indiana bill allows a legal defense in interactions “regardless of whether the state or any other government entity is party to the proceeding.” The religious liberty defense would be available under all state laws and local ordinances, unless state law provides a specific exemption from it.

    http://www.buzzfeed.com/dominicholden/religious-freedom-bill-looks-set-to-pass-in-indiana#.jk9oj5emV

    One alleged caveat:

    a person seeking to invoke the RFRA to evade anti-discrimination laws would still have to establish a substantial burden on their religious beliefs and overcome the compelling interest test, which would almost certainly fail.

    The Hobby Lobby case suggests the “almost certainly fail” barrier of “substantial” burden here is unclear. As to “compelling interest,” telling point that the state as a whole doesn’t think preventing sexual orientation discrimination apparently IS ONE.

    The provision is a litigation “laws don’t apply to me” parlor device of sorts. How bad it is will remain to be seen. The federal RFRA applies to federal matters. Each state RFRA therefore expands things.

    • Nick056

      The federal RFRA was designed to turn the clock back on Smith and hit the reset button. The ensuing state RFRAs had much the same purpose. The Indiana RFRA was designed to sidestep any Elane Photography problem in the state. You only have to look at the facts and issues in Smith and Elane to see why the federal RFRA was a widely-supported buttress on the 1st amendment and the Indiana RFRA is conservatives-only attack on people who would seek relief under anti-discrimination statutes in the face of religious bigotry.

      • Joe_JP

        The federal RFRA was designed to turn the clock back on Smith and hit the reset button.

        Yes. The problem is that the language, which now was in black text not court rulings that in practice repeatedly found exceptions & arguably not as broadly phrased as RFRA, was broadly written and open to the Hobby Lobby interpretation that did more than “restore” old law.

        But, the law here was a step further & as noted the context shows a more conservative intent though the language is open-ended enough to apply to liberal religions too.

  • Woodrowfan

    I’ll mention this again. I went to college with Pence. He was always a self-righteous jerk. Dumb as hell but convinced he’s really intelligent. He’ll smile as he lies to your face, convinced he’s doing God’s work. Thinks he’s Jesus’s favorite BFF.

    My favorite story about him deserves to be retold. When he started dating his future wife he said he had to “forgive” her because she’d gone on a date with another guy before. Not had sex with, not been engaged to, not cheated on, just a “date”, which on our little Presbyterian campus probably meant a movie at the auditorium and something to eat at the coffee shop in the student union. But just the act of going out on a basic date with another man was somehow a sin.

    On Facebook some of his old fraternity bros (FIJI) who are gay are having a fit……

    • Rob in CT

      Christ, what an asshole.

    • timb

      He was a Fiji? I so respected those guys when I went to Panther land due to their non-conformist style. They weren’t as cool as my guys, but still.

      It’s good know sex was as unheard of at Hanover in the early 80’s as it was in the late 80’s, although we drank a lot! Did Pence drink?

      Was George Curtis convinced of Pence’s righteousness then or did it take a minute?

  • Pingback: Same-Sex Marriage Pre-History - Lawyers, Guns & Money : Lawyers, Guns & Money()

  • Heron

    I realize nothing will be done about this, but Pence not vetoing this bill, and those legislators voting for it, is actually illegal.

    Every government official takes an oath to uphold the Constitution and protect the liberties of their fellow citizens, these oaths are legally binding, and violation of them carries penalties, at the very least, forfeiture of office. This was true for confederate rebels, and it’s still true now. By actively seeking to curtail the rights of US citizens, Pence and the Indiana legislature violated their oaths of office and that is both a state and federal crime since almost all states include similar clauses in their constitutions; by law the whole lot of them ought to be arrested.

    • cpinva

      is Indiana a “a right for assholes to publicly cart around their replacement masculinity” state? if so, it would be quite entertaining if a couple of thousand of those against this law were to surround gov. pence & his security detail, and perform a “citizen’s arrest”, charging him with violating his oath of office.

      yeah, I know, this would actually be a very, very dangerous thing, and I wouldn’t want it to happen. that said, the look on his face would be priceless.

      • AttorneyAtPaw

        There are efforts that work at a greater distance with much less risk to the participant, but they require very precise mechanics.

        I’m talking about a recall election, of course.

  • Pingback: Stop Dutch blackface, other racism, United Nations says | Dear Kitty. Some blog()

  • Pingback: The Reasonable, Moderate, Sane Mike Pence - Lawyers, Guns & Money : Lawyers, Guns & Money()

It is main inner container footer text