More Thoughts on the Indiana RFRA Controversy

Posted April 2, 2015 by Ken Hirsh
Categories: Uncategorized

This post is adapted from a Facebook note I published today, which was in response to a discussion on a friend’s timeline. A Facebook timeline is not well suited to the back-and-forth of serious issues, and it is not my goal to fill up someone else’s timeline with my views, so instead I wrote a note and tagged my friend. I omit the friend’s name here.

I don’t want to impose on your timeline any further with my own views, so I’m tagging you in this note. You can read it or not as you prefer. To begin with, I first commented on the Indiana Restoration of Freedom of Religion Act (SB101) in my earlier blog post. It will be clear from that post that we have a fundamental disagreement on several points of the underlying issues regarding the role of scripture and whether free exercise of religion extends into one’s daily commercial activities. It is true that many believers hold that witnessing for Christ must be done in all aspects of life, including in their business operations. But this fundamental disagreement is not what prompted me to initially comment on your timeline post of a few days ago. Rather, it was your assertion that the Indiana RFRA is identical to those in other states. You also said that media reports to the contrary were “fear mongering from the media.”

In response, I pointed out that the Indiana act differs from the RFRA adopted by Congress and those in most other states in two important respects.

  1. It expressly defines “person” to include for-profit entities such as corporations and partnerships (Section 7 of the act).
  2. It expressly allows the defense of “imposing a substantial burden on exercise of religion” in judicial and administrative proceedings brought by individuals, rather than those where the government is seeking relief (Section 9 of the act).

You prefer to ignore these differences in your further comments. So my main point of contention with your post is that you accuse the media of fear mongering about Indiana’s law being different, when in fact Indiana’s law is different. Next, you raise the issue of cases that have been successfully brought against Christian business owners, generally bakers who refuse to accept an order to provide cake for a same-sex wedding. You said that based on the cases, it is reasonable for these individuals to fear that they will lose their business because they are trying to abide by their religious beliefs but the government wants to force them to conduct business against their business principles. At present, this is actual fear mongering. In the best known case, arising in Colorado, the state’s Civil Rights Commission ordered the baker to cease and desist from its discriminatory practices. It did not enter an award of fines. The order is presently on appeal. Colorado’s state civil rights act expressly includes sexual orientation as a protected class.

Neither Indiana’s nor the federal civil rights acts presently includes sexual orientation or gender identity as a protected class in their public accommodations provisions. Given that both the Indiana General Assembly and Congress are presently under the control of Republicans, it would seem unlikely that either law would soon be amended to add these as protected classes. (Though in this morning’s news, it is said that Indiana may add some kind of anti-discrimination language regarding these groups. I reserve judgment on this until I see the statutory language. But it would be truly ironic if Indiana adds these classes to its public accommodations law as a response to its adoption of a RFRA.)

As long as federal law and Indiana law do not include sexual orientation in the language of their civil rights acts, no business owner faces any risk of monetary damages for refusing service based on sexual orientation. There is no common law action for this grievance. So, asserting that RFRA is necessary to protect from the loss of a business on these grounds is, in fact, fear mongering.

Now, I will briefly move beyond my specific complaint about your post to mention one aspect of my own feelings about the issue. “Substantial burden” is pretty much in the eyes of the offended. It seems to me that those who press forward with claims that they should be able to choose whom to serve in a commercial setting based on religious beliefs are, pardon the expression, trying to have their cake and eat it too. I am no biblical scholar, but I believe “taking up the cross” is supposed to mean shouldering the burdens that come with following Christ. I do not think those burdens should include risk of loss of life, or risk of shutting down a church. But those who would use RFRA to refuse to serve anyone in a commercial establishment would suffer no burdens at all, but would shift the burden entirely to others.

The proposed update to the Indiana RFRA is posted here. It effectively serves as a hybrid civil rights act. It does not expressly create a new general protected class for sexual orientation or gender identity, but it does include these two classes and every other class generally found in civil rights acts in a clause that prevents the use of RFRA to justify refusal of accommodations, which includes general business commerce with the public. In short, as I mentioned above about the potential for irony, if this proposes is adopted, it largely negates the apparent reason that so many conservatives were pushing for Indiana’s law, and takes the first steps to recognizing the two categories as classes that should be protected. Notably it excludes churches and clergy from these provisions, which in my view simply adheres more closely with traditional First Amendment jurisprudence.
[Update 2]
A few minutes ago the Indiana Senate voted to concur in the House bill noted above. The bill effectively creates a “mini-civil rights bill” that includes sexual orientation and gender identity in actions brought under RFRA. It remains to be seen whether Indiana will eventually add these terms to its actual civil rights act. The bill now goes to Governor Pence.
[Update 3]
Governor Pence signed the new bill on Thursday. This effectively restores the status quo for cities such as Indianapolis that have civil rights ordinances that include sexual orientation and gender identity among the protected categories. For the rest of the state, arbitrary discrimination against these classes is still lawful.

All Praise Religious Bigotry!

Posted March 31, 2015 by Ken Hirsh
Categories: Uncategorized

“All” is, of course, an intentional use of hyperbole. But in the case of Indiana’s enactment of SB 101, its version of a “Religious Freedom Restoration Act,” a large majority of state assembly members voted to pass the act. Governor Mike Pence, though saying in several public appearances in the past few days that signing it was the right thing to do, was concerned enough about the fallout that he held a private signing ceremony where he was flanked by several folks who have publicly supported discrimination against gay and lesbian people.

Much has been made about the “fact” that Indiana’s new law is similar to the Federal RFRA, which was the basis for last year’s ruling by the U.S. Supreme Court that Hobby Lobby, a private for-profit corporation, did not have to comply with the provisions of the Affordable Care Act and regulations adopted pursuant to it that require such companies to include contraceptive coverage in health insurance policies. The same articles point out that at least 20 other states have similar laws. I think that all these laws are a bad idea, and arguably unconstitutional (I know that this is a minority opinion), but Indiana’s is unlike the others in a significant aspect. In Section 9 it states, “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.” This language appears to let a business otherwise engaged in public commerce to limit its service to certain individuals when the owner believes doing so is “a substantial burden on its exercise of religion.” Sexual orientation and gender are not currently protected classes under Indiana or Federal law, as neither the Federal government nor Indiana have ever legislatively stated that either has a compelling interest in protecting people in those classes. (The various RFRA Acts require that there be such a compelling interest to overcome the claim that compliance constitutes a substantial burden on the exercise of religion.) Hence, the Indiana act appears to allow private interests to refuse to accommodate people based on their gender or sexual orientation. (Congress last year had considered passage of the Employment Non-Discrimination Act of 2013, S.815 and H.R.1755, but after Senate passage the House refused to consider it. That law would have added sexual orientation and gender identity to the list of protected classes in employment matters, but not in public accommodations, which is a broader area under the Civil Rights Act of 1964 as amended.)

The Federal RFRA was a response to a Supreme Court decision holding that despite the free exercise clause, individuals could be legally prohibited from using peyote although it was for sacramental purposes of their Native American Church. The hearings and report on RFRA indicate that the Court had decided this issue counter to previous jurisprudence, and wanted to address this perception by the enactment of RFRA. Hence, Congress passed and then-President Clinton signed the act, which requires the government to show a compelling interest to require compliance to a law that is of general applicability to everyone when an person claims the enforcement is imposing a substantial burden on the exercise of religious expression.

As we learned in Hobby Lobby last year, the Supreme Court will not inquire about the reasonableness of the claim: the majority held that the claim’s proponent must only sincerely hold the belief, regardless of its factual accuracy. In that case, despite the scientific consensus that none of the forms of contraception at issue are abortion, Hobby Lobby’s owners’ belief that they are was enough to persuade the Court that the regulations were a substantial burden that were defeated by RFRA. We have no reason to think that a state court applying Indiana’s law would rule any differently in a case in that state where any person who claims to be opposed to same-sex marriage, or for that matter, to homosexuality or transgender status, for religious reasons to deny service or accommodations to a person in that category. Indiana’s law is, on its face as enacted, discriminatory against these classes of people. The arguments of its many of its proponents admit as much, regardless of Mike Pence’s protestations to the contrary.

Many are calling for the Indiana General Assembly to amend the law by adding a clarifying statement of intent, or by removing Section 9 as noted above. The latter action would make the act in accord with the RFRAs in other jurisdictions. We do not yet know whether this will happen, though at present it seems unlikely. Frankly, I think RFRA as a concept is a perversion of the intent of the first of the two clauses of the First Amendment relating to religion. Those waving the Free Exercise Clause as a shield, and to some degree as a sword, are too wont to completely ignore the Establishment Clause. I believe that RFRA, as applied in Hobby Lobby and perhaps more generally, violates the latter clause by elevating the concerns of those professing religious belief over the needs of the common good. That the Court found a private, closely-held, for-profit corporation can complain of the impingement of the Free Exercise Clause, to the detriment of society in general, adds insult to injury.

When White Privilege and Senatorial Privilege Combine

Posted March 19, 2015 by Ken Hirsh
Categories: Uncategorized

To quote Charlie Pierce of Esquire, “It’s never about race.”

Senator Mitch McConnell has announced that the Senate will not vote on the confirmation of Loretta Lynch as Attorney General until the Democratic senators stop filibustering the Justice for Victims of Trafficking Act of 2015 (S. 178). The Democratic senators are opposing the bill because the Republican senators inserted a provision that would not allow the expenditure of funds toward abortion, carrying forward the Hyde Amendment from Department of Health and Human Services authorization bills. The language appears in the portion of the bill that establishes a Domestic Trafficking Victims’ Fund.

Part of the back and forth on the validity of the objection raised by the Democratic senators is that the language was added in the Judiciary Committee and was not objected to until after the bill was reported to the floor. I view this as a red herring, and don’t want to go any deeper on that part of the controversy.

Yesterday Senator Dick Durbin (D-IL) invoked the memory of Rosa Parks to accuse the Republicans of holding up Lynch’s confirmation as a matter of racial discrimination. Republicans responded by accusing him of race-baiting. On this morning’s MSNBC program Morning Joe, the eponymous host Joe Scarborough noted that Tim Scott (R-SC), one of the two African-Americans in the Senate, said as much about Durbin’s remarks. Scarborough insisted the delay in Lynch’s confirmation is simply the procedural back-and-forth of a majority trying to get what it wants by denying the filibustering minority what the latter wants. There is evidence to show that Scarborough is way of the mark.

As reported in yesterday’s News and Observer, both of North Carolina’s senators have announced that they will oppose Lynch’s confirmation, despite her broad support from the Judiciary Committee. The reason, apparently, is that Ms. Lynch would not agree to stop pursuing legal actions against states such as North Carolina in which Republican-controlled statehouses and governor’s mansions adopt voter I.D. laws and other voting restrictions that disproportionately affect black voters. As noted in that article, McClatchy reported in February that, “The state’s senior senator, Republican Richard Burr, issued a statement later in the day saying he would oppose Lynch when her nomination reaches the full Senate – likely next month – because she supported a Justice Department lawsuit against North Carolina’s new election law.” North Carolina’s law was one of a passel of such acts that clearly were adopted to lower minority and college student voting turnout; While ostensibly aimed at reducing the risk of voter fraud, there is not one credible study that shows that voter fraud is a significant occurrence in any state. The evidence is doubly damning when one considers that only states where Republicans control both the legislature and the governorship have adopted such laws. Because of their following the Republican line that it is a state’s privilege to construct obstacles to minority voting, Burr and Tillis, in whose state Lynch grew up and began her education, are demonstrating the same racist mindset that is part-and-parcel of the Republican party today. Durbin’s remarks were not race-baiting, but were exactly on point.

As to Scarborough’s reliance on the remarks of Senator Scott, the opinion of the one black Republican in the U.S. Senate does not change the fact that racism is a fundamental policy of the GOP any more than does the concurrence of the single black justice of the Supreme Court in the decision gutting the Voting Rights Act. In that opinion, Justice Thomas claimed that, “our Nation has changed.” The delay in Lynch’s confirmation and the actions of Republican office-holders to make it harder for minorities to vote make it clear that is has hardly changed at all in this respect.

End the Semi-Annual Tyranny That Is Daylight Saving Time!

Posted March 7, 2015 by Ken Hirsh
Categories: Uncategorized

Like millions of others, I dread Monday morning. With the loss of an hour on the clock early Sunday, getting up on Monday will feel akin to a mild torture. For reasons that no longer may sense, if they ever did, Congress adopted a uniform Daylight Saving Time effective in 1967, and has tinkered with it a few times since then. Beginning in 2007, in the United States, and excepting those few states and regions that do not impose it on their citizens, DST begins on the first Sunday in March and does not end until the first Sunday in November. That means that we spend about eight months on DST and about four on Standard Time. By definition, wouldn’t you think that a “standard” time would be the majority, or all, of the time we spend?

Reasons for adopting DST ranged from agricultural, e.g., giving farmers more sunlight at the end of the workday; to recreational, also giving folks more sunlight at the “end” of the day; to conservation-friendly, supposedly saving electricity by requiring less artificial lighting during recreational or work hours.

There are studies debunking the conservation-based reasons and even common sense would suggest that folks who get up in the dark are turning on their lights as much as folks who are preparing dinner or reading afterward are. Air conditioning and refrigerators pretty much ignore the clock, as do computers and television sets. All in all, there is scant evidence that DST saves a significant amount of energy, especially when weighed against the detrimental effects on health, which include an increase in heart attacks, traffic accidents, and other negative impacts. (Thanks to Joseph Stromberg at for providing the links to these studies.) Stromberg makes a persuasive argument that DST should be made permanent. Frankly, I don’t feel strongly about staying on DST year-round or moving to “Standard Time” permanently. It’s the switching between them that causes problems for all of us.

Let’s ask Congress to get rid of the semi-annual torture NOW!

Turn the Page

Posted February 15, 2015 by Ken Hirsh
Categories: Uncategorized

Six months are too long to let a blog lie fallow. The options here are plain: start writing with some frequency, or give it up. I’m going to make an earnest try at the first one.

Tonight Lorne Michaels and NBC celebrate the 40th anniversary of Saturday Night Live. Much has already been written in the online and printed fora; MSNBC programming has been promoting the show all weekend. I especially commend to you Sonia Saraiya’s post in Salon emphasizing that the live nature of the show still offers us a chance at communal television viewing in the age of 500 channels and the Web. I regret that David Carr will not be around to give us his take on tonight’s celebration. I’ll add a personal note: As I noted on Facebook and Twitter earlier today, Lisa’s and my marriage has grown up with SNL, as we were married in August, 1975, some seven weeks before its first episode aired in October of that year. NBC has decided, perhaps wisely owing to other scheduling demands, to celebrate the show’s 40th near the end of its 40th season; we’ll celebrate our wedding anniversary closer to the actual 40-years mark.

Switching gears, apparently it’s never too early for pundits to begin incessantly discussing the 2016 presidential election. To be fair, the Iowa caucuses and New Hampshire primary are less than a year away, despite the fact that the 2014 mid-term elections are barely in the rear-view mirror.

At the University of Cincinnati’s College of Law, where I’ve just earned another anniversary at 6 years, I’ve been honored to participate as a member of the decanal search committee. Now that the three finalists have concluded their visits, our work is nearly complete, and the decision determining who will succeed our current dean will lie in the hands of our provost, our board of trustees, and of course the candidate willing to negotiate a deal that will bring him or her to us.


“Biggest Bar Exam Disaster Ever?” was More a Fender Bender

Posted August 7, 2014 by Ken Hirsh
Categories: Bar Exams, Legal Education


Last week’s headline in Above The Law turned out to have somewhat exaggerated the lasting effects of an as-of-yet not fully explained technical glitch in software used in several states to adminster the bar exam. The software, a product called SoftTest, created and marketed by ExamSoft, is designed to let students type exam answers on their computers, while preventing access to any other programs on the computer or in the cloud. It also encrypts the resulting file, provides continuous time stamps, and prevents the student from revisiting completed answers. Before getting into the specifics of what happened on this occasion, it is in order to provide some background and context.

The bar examination is a high-stakes test, possibly the most high-stakes test in the country, that virtually any law student who wants to practice law must take and pass before being admitted to the bar. It is the culmination of a three-year professional school career that itself is filled with high-stakes end-of-semester tests, and it is expensive to both prepare for and take. Bar review courses, which are more targeted to test performance than are law school classes, can cost $1,500 – $3,000, and administration fees for the tests and the background checks required for bar admission can add from several hundred to more than a $1,000 to the cost. There is also the cost of transportation to and lodging in the city where the exam is administered. It should be obvious, then, that a law student about to take the exam is likely to be under a lot of stress and anything that goes wrong with the test administration will further exacerbate that stress.

Law schools began letting students take semester exams on their computers in the early 1990’s. That move was very controversial, as despite the existence of an honor code at most law schools, faculty and administration were concerned about their perception of an increased likelihood of cheating by students’ accessing other materials stored on the computer. Companies such as ExamSoft began marketing so-called “secure exam programs” to law schools, and this relieved much of this concern. Over the years, there were four companies in this market: ExamSoft, Extegrity, Software Secure, and Electronic Bluebook. The name of that last product refers not to the common name of A Uniform System of Citation but rather the small format exam booklets into which students typically wrote their exam answers. As the years passed, more and more law schools allowed students to take exams using one of these packages. Technological problems sometimes occurred, resulting in very upset students and administrators, but very rarely was an exam answer lost. Anyone who regularly works with computers knows that any word processor will sometimes crash, often resulting in the total loss of the work to that point. The exam software packages all made automatic backups every minute, so if they were performing properly, the student was never at risk for losing more than a minute’s worth of typing.

Once the exam software companies had signed up most law schools, they turned their attention to the bar exams. The bar exam in each state is administered independently from that in other states; however, most states require the student to pass portions of the exam that are offered on a national basis: the Multistate Bar Examination, the Multistate Examination, the Multistate Performance Test, and the Multistate Professional Responsibility Examination (MPRE). For a detailed state-by-state breakdown of this, see Chart 8 in the ABA’s 2014 Guide to Bar Admission Requirements. Other than the MPRE these exams are offered twice per year, at the end of February and again at the end of July. They are administered on the same dates on all the states that use them. The bar examiners’ boards in most states were also slow to allow students to use computers to take their exams, but the marketing by the secure examination software vendors accelerated the adoption of computer-based exams.

In 2007, during the summer administration of the New York bar exam, Software Secure’s SecureExam malfunctioned. In an interview with John McAlary, executive director of the New York State Board of Law Examiners, April Dembosky reported  in a July 29, 2008 post to the City Room blog of the New York Times that, “Last summer, panic spread through various testing sites when the exam software – which locks down all programs and files except the exam – malfunctioned. Hundreds of laptop users who navigated back to a previously completed essay found a blank screen. In the months following the exam, Mr. McAlary said, the board salvaged all but 47 essays. Some of those candidates passed or failed regardless of their score on the lost essay, leaving only 15 that were given an estimated score. Nine of them passed the bar, six didn’t.” Following that event New York switched to using ExamSoft.

Against that background we can look at last week’s malfunction in many of the states that use the ExamSoft product. Apparently the program could not upload the completed exam to ExamSoft’s servers at the conclusion of the exam. This problem continued into the evening and overnight hours following the Tuesday exam administration. Whether or not the students were aware of it, their exam files were complete and safely stored on their computer’s hard drive. But the bar examiners have very narrow deadlines for uploading the exams; e.g. in Ohio the deadline was 10:00 P.M. on Tuesday. There were delays in contacting students with information concerning relief from the deadlines, and it is not now clear what, if any, protocols were in place at bar administration sites for communicating with students after problems had been discovered. As a result, students were stressed, pissed off at Examsoft given they had no helpful information, and the complaints quickly spread on social media and sites such as Above the Law.

Several of the technical personnel who assist with the administration of bar exams by computer are law school technology staff who contract with the exam software companies to serve at the bar exams. Many of them have been posting messages concerning last week’s events on Teknoids, the mailing list of law school technology folks. You can view their posts on the list’s archives and you will find that all of them report that no exam files were lost last week, and ultimately all of them were successfully uploaded.

So I call this the equivalent of a fender bender: while it’s happening it’s scary and you don’t know how it will end. Your stress level skyrockets. You may lose hours out of your otherwise productive schedule dealing with the aftermath. But in the end, you’re uninjured and you get your car repaired. Moving forward, ExamSoft has a duty to post a full post-mortem report explaining the cause of the problems and the steps the company is taking to prevent a reoccurrence. But no company will ever be able to guarantee 100% error-free computing. The boards of bar examiners also have a responsibility to properly respond to this event. First and foremost, they need to adopt and publicize protocols that set forth channels of official communication concerning deadline extensions and other remedies that will be offered during any future similar circumstances. The first thing they should consider is relaxing the deadlines in advance of a test. The software encrypts the exams and applies a timestamp to it. There is very little risk of anyone altering the exam file prior to its being uploaded. The bar examiners already set up the system that maximizes stress; they should seize this opportunity to dial it down a notch.

Why Sen. Rubio (and Those Who Share His Views on Same-Sex Marriage) Are SO Wrong.

Posted July 26, 2014 by Ken Hirsh
Categories: Uncategorized

In a well-publicized speech a couple days ago delivered at Catholic University, Sen. Marco Rubio (R-FL) said this: “I promise you even before this speech is over I’ll be attacked as a hater or a bigot or someone who is anti-gay,” Rubio said. “This intolerance in the name of tolerance is hypocrisy. Support for the definition of marriage as one man and one woman is not anti-gay, it is pro-traditional marriage.” Rubio, like so many others who try to frame the argument in favor of allowing same-sex marriage as an attack on traditional marriage, is deliberately misstating the issue. He and those who share that view would deny marriage to homosexual couples. Theirs is not merely a traditional view of marriage; it is both a restrictive view of marriage and a proprietary view of marriage. In effect, this argument says that heterosexual couples cannot share the joys and benefits of marriage with homosexual couples because this diminishes the former’s exclusive property rights in traditional marriage. There is in fact no attack on traditional marriage. In those states that recognize same-sex marriage, heterosexual couples are still free to marry. Homosexuals are not claiming that ONLY they should be allowed to marry, in stark contrast to supporters of traditional marriage such as Rubio.

Opposing someone else’s right to enjoy a privilege that you enjoy without a rational basis at law is the very definition of bigotry, Senator. The intolerance is all yours.


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