What the Indiana law really does

Bill Black on what is so insidious about the Indiana Act:

The Indiana Act does not mention people who are LGBT. It is far broader than that. Any person in Indiana can invent a “religious” “belief.” That “belief” could be that one should not associate with, touch, speak to, see, or serve any characteristic one can imagine – race, color, gender, nationality, age, eye-color, progressives, or the left-handed. The focus on LGBT is because the purpose of the law is to encourage discrimination against LGBT and because Indiana has no law barring discrimination against LGBT.

The law’s ultra-vague standard and the ability of a person in Indiana to sue before any judge they choose seeking a judicial declaration that they have a right to deny service to someone because he or she was LGBT or a Muslim encourages judge shopping. Finding a justice of the peace who is a proud homophobe in rural Indiana should be a piece of cake.

Section 9 of the law provides that the businessman can seek the declaratory judgment and even an injunction without normal “standing,” i.e., demonstrating “injury in fact.”

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

A sympathetic judge could easily find that any homophobic Indiana merchant is “likely” to be faced with requests for goods and services from LGBT customers. The merchant will testify that his or her “religious” precepts would be injured by serving LGBT customers. That will establish in the mind of a sympathetic judge proof that the merchant’s “religion” will “likely” be “substantially burdened” by the prospective customers and provide a basis for a declaratory judgment that the merchant has a right under the Act to deny services to customers he or she thinks may be LGBT.

I’m guessing this was yet another boilerplate law produced by ALEC.

Thanks to Philadelphia criminal lawyer Amato Sanita.