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Indiana's Religious Freedom Restoration Act, Explained

by John McCormack

 

FTA:

 

Is the Religious Freedom Restoration Act really a license to discriminate against gay people?

 

No. Stanford law professor Michael McConnell, a former appellate court judge, tells THE WEEKLY STANDARD in an email: "In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else."

 

So what is the Religious Freedom Restoration Act, and what does it say?

 

The first RFRA was a 1993 federal law that was signed into law by Democratic president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer, and sailed through the Senate on a 97-3 vote.

 

The law reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person's free exercise of religion to be "substantially burdened" by a law only if the law furthers a "compelling governmental interest" in the "least restrictive means of furthering that compelling governmental interest."

 

So the law doesn't say that a person making a religious claim will always win. In the years since RFRA has been on the books, sometimes the courts have ruled in favor of religious exemptions, but many other times they haven't.

 

If there's already a federal RFRA in place, why did Indiana pass its own RFRA?

 

Great question. In a 1997 Supreme Court case (City of Boerne v. Flores), the court held that federal RFRA was generally inapplicable against state and local laws. Since then, a number of states have enacted their own RFRA statutes: Indiana became the twentieth to do so. Other states have state court rulings that provide RFRA-like protections. Here's a helpful map from 2014 that shows you which states have RFRA protections (note that Mississippi and Indiana have passed RFRA since this map was made):

 

 

 

Is there any difference between Indiana's law and the federal law?

Nothing significant. Here's the text of the federal RFRA:

 

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.

 

And here is the text of Indiana's RFRA:

 

A governmental entity may substantially burden a person's exercise of religion only if the governmental entity 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.

 

Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)

Late last night just outside the Senate chamber, I asked Senator Chuck Schumer of New York (who sponsored federal RFRA in 1993) to comment on the story. "Not right now," he replied. Schumer still hasn't found time to respond to this question on Twitter:

 

John McCormack @McCormackJohn Follow

.@SenSchumer could you explain how Indiana's RFRA is different than the federal RFRA you sponsored in 1993?

 

So why are so many people saying that Indiana's law is an unprecedented attack on gay people?

 

Bad journalism is to blame here. See this CNN headline that says the law "allows biz to reject gay customers," or this New York Times story that makes the same claim while ignoring the fact that many other states and the federal government have the same law on the books.

Indiana's RFRA does not grant a license to discriminate. First of all, the state of Indiana, like 28 other states, has never prohibited discrimination based on sexual orientation at public accommodations. Even without such laws in most states, discrimination doesn't commonly occur because the United States is a nation that is tolerant of gay people and intolerant of bigots. Mean-spirited actions by a business owner anywhere in the country would almost certainly be met with a major backlash.

 

 

 

Much more (for those who can process it) at the link: http://www.weeklystandard.com/blogs/indianas-religious-freedom-restoration-act-explained_900641.html?page=2

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Indiana's Religious Freedom Restoration Act, Explained

by John McCormack

 

FTA:

 

Is the Religious Freedom Restoration Act really a license to discriminate against gay people?

 

No. Stanford law professor Michael McConnell, a former appellate court judge, tells THE WEEKLY STANDARD in an email: "In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else."

 

So what is the Religious Freedom Restoration Act, and what does it say?

 

The first RFRA was a 1993 federal law that was signed into law by Democratic president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer, and sailed through the Senate on a 97-3 vote.

 

The law reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person's free exercise of religion to be "substantially burdened" by a law only if the law furthers a "compelling governmental interest" in the "least restrictive means of furthering that compelling governmental interest."

 

So the law doesn't say that a person making a religious claim will always win. In the years since RFRA has been on the books, sometimes the courts have ruled in favor of religious exemptions, but many other times they haven't.

 

If there's already a federal RFRA in place, why did Indiana pass its own RFRA?

 

Great question. In a 1997 Supreme Court case (City of Boerne v. Flores), the court held that federal RFRA was generally inapplicable against state and local laws. Since then, a number of states have enacted their own RFRA statutes: Indiana became the twentieth to do so. Other states have state court rulings that provide RFRA-like protections. Here's a helpful map from 2014 that shows you which states have RFRA protections (note that Mississippi and Indiana have passed RFRA since this map was made):

 

 

 

Is there any difference between Indiana's law and the federal law?

Nothing significant. Here's the text of the federal RFRA:

 

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.

 

And here is the text of Indiana's RFRA:

 

A governmental entity may substantially burden a person's exercise of religion only if the governmental entity 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.

 

Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)

Late last night just outside the Senate chamber, I asked Senator Chuck Schumer of New York (who sponsored federal RFRA in 1993) to comment on the story. "Not right now," he replied. Schumer still hasn't found time to respond to this question on Twitter:

 

 

So why are so many people saying that Indiana's law is an unprecedented attack on gay people?

 

Bad journalism is to blame here. See this CNN headline that says the law "allows biz to reject gay customers," or this New York Times story that makes the same claim while ignoring the fact that many other states and the federal government have the same law on the books.

Indiana's RFRA does not grant a license to discriminate. First of all, the state of Indiana, like 28 other states, has never prohibited discrimination based on sexual orientation at public accommodations. Even without such laws in most states, discrimination doesn't commonly occur because the United States is a nation that is tolerant of gay people and intolerant of bigots. Mean-spirited actions by a business owner anywhere in the country would almost certainly be met with a major backlash.

 

 

 

Much more (for those who can process it) at the link: http://www.weeklystandard.com/blogs/indianas-religious-freedom-restoration-act-explained_900641.html?page=2

 

The difference between the two laws is that the federal law applies to individuals and that the Indiana law explicitly broadens it to corporations and companies.

 

That is a major distinction.

 

The reason why the law was passed was to cater to the religious right, it served no substantive purpose. The only thing that it will manage to accomplish is alienate the youth vote.

 

Bad politics and the explanation that Pence attempted this week on ABC Sunday's show was weak. He needs to do better in his explanations than this past Sunday.

Edited by Magox
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The difference between the two laws is that the federal law applies to individuals and that the Indiana law explicitly broadens it to corporations and companies.

 

That is a major distinction.

 

The reason why the law was passed was to cater to the religious right, it served no substantive purpose. The only thing that it will manage to accomplish is alienate the youth vote.

 

Bad politics and the explanation that Pence attempted this week on ABC Sunday's show was weak. He needs to do better in his explanations than this past Sunday.

 

Nothing more than mindless fear-mongering. What people miss is that the burden of proof is on the entity to demonstrate that their expression of religion is substantially burdened by the state.

 

The operative words being: expression, substantially, and state.

 

That's not license to discriminate. It doesn't permit a Muslim-owned Jiffy Lube franchise to deny a woman an oil change because women shouldn't be allowed to drive, any more than they're allowed to now. It merely permits them, if they do discriminate, to argue that being forced to change the oil in a woman's car, and being fined for not doing so, is burdensome to their expression of religion...for which they'd have to argue that an oil changes represents an expression of Muslim faith.

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Want Evidence of Hysterical Anti-Christian Bigotry? Look No Further than #BoycottIndiana
by David French
After litigating religious liberty issues for more than 20 years, I’m used to utter hysteria erupting on the Left when Christians try to assert conventional and traditional religious liberty rights. Perhaps my favorite example was the claim — by a Tufts University student panel — that a Christian group had to be thrown off campus without due process, in part because the Christian group’s insistence on selecting only Christians as leaders placed Tufts students at greater risk of suicide. Yes, suicide.
But for national freakouts, it’s tough to beat either the sky-is-falling rhetoric around the idea that a few Hobby Lobby employees would have to buy their own abortifacients or, more recently, the sheer nonsense of #boycottindiana, the movement to freeze an entire state out of the national economy for passing a religious freedom law similar to the national Religious Freedom Restoration ACT (RFRA) and RFRAs in 19 other states. While it’s hardly surprising to see legally ignorant sportswriters use the language of segregated lunch counters, it’s disturbing to see well-informed CEOs such as Apple’s Tim Cook conjuring up the specter of the Old South.
Simply put, their concerns about systematic invidious discrimination are utter hogwash, and they either know it or should know it. Why? Because RFRAs aren’t new, the legal standard they protect is decades older than the RFRAs themselves, and these legal standards have not been used — nor can they be used — to create the dystopian future the Left claims to fear. After all, the current RFRA legal tests were the law of the land for all 50 states — constitutionally mandated — until the Supreme Court’s misguided decision in Employment Division v. Smith, where the Court allowed fear of drug use to overcome its constitutional good sense. And yet during the decades before Smith, non-discrimination statutes proliferated, and were successfully enforcedto open public accommodations to people of all races, creeds, colors, and — yes — sexual orientations.
So what’s really going on here? A toxic combination of anti-Christian bigotry and sexual revolution radicalism. It is simply uninformed and bigoted to believe that Christians are somehow lurking in the shadows, ready to deny food, shelter, and basic services to their gay fellow citizens — blocked from such vicious actions only by the strong arm of the state. In my entire life as an Evangelical, I’ve never met a fellow Christian who wouldn’t gladly serve a gay customer. If there are exceptions to that nearly-universal rule, they are so marginal (and marginalized) in the Christian community that they’re irrelevant not only to Christendom but also to the body politic.
But the Left, ever-vigilant against group-based slights on behalf of favored constituencies, is only too eager to label orthodox Christians as threats to the public.

While RFRAs protect people of all faiths, from peyote-smoking Native Americans to Bible-toting florists, the Left’s outrage is narrowly targeted — against the Christian people whose livelihoods they seek to ruin, whose consciences they seek to appropriate, and whose organizations they seek to disrupt. #boycottindiana isn’t a cry for freedom. It’s nothing more than an online mob, seeking to bully those it hates



Read more at: http://www.nationalreview.com/corner

 

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The knee-jerk from some corporations on this issue, like Angie's List, which is based in Indy, is so telling. It tells me 2 things:

1. um, hey gay people and Democrats, Angie couldn't give 2 schits about your agenda.

2. once again we see that micro-marketing event by event is being cast as long-term, constant support for a cause, when in fact the opposite is true: the cause is irrelevant, it's the clicks that matter.

 

This is about marketing and clicks. Period. Some may not understand how the internet works. For those people? "This is about getting your name in the paper". These corporations have everything to gain, and nothing to lose, by running out to the media and proclaiming all sorts of things, like they are going to delay their expansion in Indiana....(yeah...until their corporate counsel tells them they are in danger of getting sued for breach of contract).....

 

....for days! :lol:

 

Right around as much time as it takes for the next OUTRAGE! story to break, miraculously Angie and her people will be back at it, "creating 1000 job for Indiana". :lol: Only a total rube, or somebody with no high-level business experience, doesn't see this angle.

 

Marketing has been every bit the death of corporate philanthropy and suppor for causes, as it has personal philanthropy and support for causes. Doubt me? Well, do you want to add an extra $1 to your McDonald's bill for Charity X, or don't you? :rolleyes:

 

Consider: nobody knew Ralph Wilson gave a ton of money down in Miami for spine cooling research, before Kevin Edverett, did they? Why, because Ralph was a real philanthropist.

In contrast: everybody knows every detail via twitter of every second/penny spent on "charity" by celebrities. Why? Marketing in the form of "look at me" self-promotion.

 

So what do we really have here? A bunch of corporate marketing people, who will gladly latch on to anything gay, or black, or woman, because this is about the bottom line. Making a big PR splash when the time is right drives the clicks today, and they can always go back to not giving a schit next week, because? Nobody else will either.

 

The days of the Ford Foundation getting its 2 second notice, and no more, for funding PBS, even though they've been doing it for 30 years? Over.

 

EDIT: And hey, I'm not the cynical one here. Cynical is telling people you're going to delay your corporate expansion, profiting from that, and then slowly backing away.

Edited by OCinBuffalo
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INDIANAPOLIS—Addressing the controversy surrounding his state’s recently signed Religious Freedom Restoration Act, Indiana governor Mike Pence forcefully insisted to reporters Monday that the new law has nothing at all to do with what it was explicitly intended to do. “Let me state directly that in no way is this law designed to allow the kind of anti-gay discrimination that is the law’s single reason for existing,” said Pence, emphasizing that provisions authorizing businesses to refuse service to gay customers were nothing more than the only explanation for the law being drafted in the first place. “Regardless of the widespread misconceptions surrounding it, I want to reassure Hoosiers of all backgrounds that this law will never be interpreted in the way it was unambiguously designed to be from the very beginning.” Pence further clarified that the act’s sole purpose was in fact to safeguard the free exercise of religion it was in no way whatsoever created to protect.

 

 

http://www.theonion.com/articles/indiana-governor-insists-new-law-has-nothing-to-do,38330/

Apparently the two sentences I posted are too much for you to intellectualize, not that anyone's surprised.

Excuse me? Did you address the issue of why this law was needed?

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"The gay rights group Human Rights Campaign (HRC) warns that such laws are often incredibly vague and light on details usually intentionally.

 

The evangelical owner of a business providing a secular service can sue claiming that their personal faith empowers them to refuse to hire Jews, divorcees, or LGBT people, HRC says in a report. A landlord could claim the right to refuse to rent an apartment to a Muslim or a transgender person.

 

Appearing on ABCs This Week Sunday, Pence would not directly address such hypothetical questions, instead emphasizing that tolerance is a two-way street including tolerance for religious beliefs. And he stood up for his fellow Hoosiers."

 

 

http://www.csmonitor.com/USA/Justice/2015/0329/Indiana-Gov.-Mike-Pence-scrambles-to-clarify-new-religious-freedom-law

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"The gay rights group Human Rights Campaign (HRC) warns that such laws are often incredibly vague and light on details usually intentionally.

 

The evangelical owner of a business providing a secular service can sue claiming that their personal faith empowers them to refuse to hire Jews, divorcees, or LGBT people, HRC says in a report. A landlord could claim the right to refuse to rent an apartment to a Muslim or a transgender person.

 

Appearing on ABCs This Week Sunday, Pence would not directly address such hypothetical questions, instead emphasizing that tolerance is a two-way street including tolerance for religious beliefs. And he stood up for his fellow Hoosiers."

 

 

http://www.csmonitor.com/USA/Justice/2015/0329/Indiana-Gov.-Mike-Pence-scrambles-to-clarify-new-religious-freedom-law

Tolerance is a 2, or 3 or 10 way street, otherwise it isn't tolerance. So what's the problme here?

 

In this day and age of "gotcha" games, and the obvious drive from the left not just for tolerance, but forced acceptance, do you really put it past some clown to purposely set up a business owner to have to compromise his beliefs....or else? == post the video on Youtube? send it to MSNBC?

 

South Park did a wonderful job of explaining that civilized society begins and ends with tolerance, and not acceptance. I suggest you Google it. Now, if South Park can explain this so easily, WTF is wrong with supposedly serious media people struggling with the difference in meaning between the two words? The struggle is a lie. They are purposely trying to distort the meaning of these two words into synonyms.

 

And, please: you know damn well that the real agenda here is forced acceptance, via ostracization.

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"The gay rights group Human Rights Campaign (HRC) warns that such laws are often incredibly vague and light on details usually intentionally.

 

The evangelical owner of a business providing a secular service can sue claiming that their personal faith empowers them to refuse to hire Jews, divorcees, or LGBT people, HRC says in a report. A landlord could claim the right to refuse to rent an apartment to a Muslim or a transgender person.

 

Appearing on ABCs This Week Sunday, Pence would not directly address such hypothetical questions, instead emphasizing that tolerance is a two-way street including tolerance for religious beliefs. And he stood up for his fellow Hoosiers."

 

 

http://www.csmonitor.com/USA/Justice/2015/0329/Indiana-Gov.-Mike-Pence-scrambles-to-clarify-new-religious-freedom-law

 

Keep pretending you know what you're talking about, dumbass.

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Excuse me? Did you address the issue of why this law was needed?

 

 

Whether or not the law is needed isn't my point. My only point is that only someone like you would call legislation intended to bolster freedom of religion and freedom of association a bad thing.

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Whether or not the law is needed isn't my point. My only point is that only someone like you would call legislation intended to bolster freedom of religion and freedom of association a bad thing.

You are such an idiot. You don't even know if the law is needed for what you say it is and you defend it. Lol.

 

Love how you guys all claim to be fiscal conservatives, not moral ones, but bend over to defend this crap.

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Connecticut Gov. Dannel Malloy embarrasses himself with Indiana RFRA tantrum

 

On Monday, Connecticut Governor Dannel Malloy revealed that he will prohibit all state-sponsored travel to this heretical member of the Union. He joins the mayor of Seattle, who also blocked city-funded travel to Indiana in protest over this perfectly banal law.

 

This reaction is nothing short of an embarrassment for the left and a repudiation of the values that the Democratic Party espoused as recently as the 1990s, when President Bill Clinton signed a national version of this act into law.

 

The hypocrisy exhibited by the left in this display of childish pique over Indiana’s RFRA bill is impossible to ignore.

 

Malloy’s absurd response to the Indiana law is, no doubt, an effort to distract his liberal constituents from the fact that Connecticut’s RFRA law – yes, they have one, too – goes farther than the act signed last week by Gov. Mike Pence.

 

The Federalist’s Sean Davis makes the case:

 

Connecticut’s law, however, is far more restrictive of government action and far more protective of religious freedoms. How? Because the Connecticut RFRA law states that government shall not “burden a person’s exercise of religion[.]” Note that the word “substantially” is not included in Connecticut’s law.

 

The effect of the absence of that single word is enormous. It states that Connecticut government may not burden the free exercise of religion in any way. That makes it far more protective of religious liberty than the Indiana law that has so outraged Connecticut’s governor.

 

If Connecticut Gov. Dan Malloy wants to blatantly discriminate against state’s with religious liberty laws on the books, that’s his prerogative. But if he doesn’t want to look like a completely ignorant hypocrite who has no idea what he’s talking about, he should probably take a look at his own state’s laws first.

 

 

 

 

 

RFRA is a shield, not a sword, It can be used to defend oneself against lawsuits or administrative action. It can’t be used affirmatively to try and deprive others of the protections of law.

 

 

 

 

.

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You are such an idiot. You don't even know if the law is needed for what you say it is and you defend it. Lol.

 

Love how you guys all claim to be fiscal conservatives, not moral ones, but bend over to defend this crap.

 

Do you even understand English? All I've said so far is that it's typical of people like you to find bigotry in defending freedom of association and freedom of religion. You may also note, oh drooling one, that I haven't even stated whether or not I believe the law is necessary. I'm attacking your imbecilic tendency to scream bigotry at anyone who holds a different world view than yours.

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Indiana's Religious Freedom Restoration Act, Explained

by John McCormack

 

FTA:

 

Is the Religious Freedom Restoration Act really a license to discriminate against gay people?

 

No. Stanford law professor Michael McConnell, a former appellate court judge, tells THE WEEKLY STANDARD in an email: "In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else."

 

So what is the Religious Freedom Restoration Act, and what does it say?

 

The first RFRA was a 1993 federal law that was signed into law by Democratic president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer, and sailed through the Senate on a 97-3 vote.

 

The law reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person's free exercise of religion to be "substantially burdened" by a law only if the law furthers a "compelling governmental interest" in the "least restrictive means of furthering that compelling governmental interest."

 

So the law doesn't say that a person making a religious claim will always win. In the years since RFRA has been on the books, sometimes the courts have ruled in favor of religious exemptions, but many other times they haven't.

 

If there's already a federal RFRA in place, why did Indiana pass its own RFRA?

 

Great question. In a 1997 Supreme Court case (City of Boerne v. Flores), the court held that federal RFRA was generally inapplicable against state and local laws. Since then, a number of states have enacted their own RFRA statutes: Indiana became the twentieth to do so. Other states have state court rulings that provide RFRA-like protections. Here's a helpful map from 2014 that shows you which states have RFRA protections (note that Mississippi and Indiana have passed RFRA since this map was made):

 

 

Is there any difference between Indiana's law and the federal law?

Nothing significant. Here's the text of the federal RFRA:

 

Government may substantially burden a persons 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.

And here is the text of Indiana's RFRA:

A governmental entity may substantially burden a person's exercise of religion only if the governmental entity 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.

Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)

Late last night just outside the Senate chamber, I asked Senator Chuck Schumer of New York (who sponsored federal RFRA in 1993) to comment on the story. "Not right now," he replied. Schumer still hasn't found time to respond to this question on Twitter:

 

 

 

 

 

 

So why are so many people saying that Indiana's law is an unprecedented attack on gay people?

 

Bad journalism is to blame here. See this CNN headline that says the law "allows biz to reject gay customers," or this New York Times story that makes the same claim while ignoring the fact that many other states and the federal government have the same law on the books.

Indiana's RFRA does not grant a license to discriminate. First of all, the state of Indiana, like 28 other states, has never prohibited discrimination based on sexual orientation at public accommodations. Even without such laws in most states, discrimination doesn't commonly occur because the United States is a nation that is tolerant of gay people and intolerant of bigots. Mean-spirited actions by a business owner anywhere in the country would almost certainly be met with a major backlash.

 

 

 

Much more (for those who can process it) at the link: http://www.weeklystandard.com/blogs/indianas-religious-freedom-restoration-act-explained_900641.html?page=2

I would suggest you expand your bookmarks list for a better understanding of the law and how it is unique in many ways.

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I would suggest you expand your bookmarks list for a better understanding of the law and how it is unique in many ways.

Please explain it.

 

As I don’t have a bookmark list; I read the law and some applicable precedents and formed my own opinion.

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