The Hoosier Nuremberg Laws 

Sandy Sasso, Senior Rabbi Emerita at Congregation Beth-El Zedeck, made a compelling case in the March 22 edition of the Indianapolis Star against the Religious Freedom Restoration Act that Indiana Governor Mike Pence is set to sign into law today. She writes about the act in the context of the Exodus narrative, stating that RFRA defines “freedom in ways that counter that ancient story rather than advance it.”

Sasso’s opinion piece got me thinking about more recent Jewish history relevant to this noxious bill that is likely to become law.

It got me thinking about laws passed in Germany 80 years ago at the annual Nuremberg Rally for the Nazi Party in 1935.

click to enlarge nuremberg-laws.jpg

The Nuremberg Laws stripped German Jews of their citizenship, made it illegal for German Jews to marry Germans, made them outcasts in their own country, and paved the way for the Holocaust which had consumed much of European Jewry by the time the Second World War ended in 1945.

Bigotry has morphed and shifted over the decades since WWII ended. No conservative stalwart such as senator-turned-presidential-candidate Ted Cruz would be caught dead making derogatory comments about Jews for reasons too complicated to get into here.

These days, republicans are so fanatically in love with Israel that their leadership arranged for Prime Minister Netanyahu to speak in front of a joint session of congress on March 3 as if he were president of the United States. (They’re not as enraptured with the likes of Jerry Seinfeld, Woody Allen, and Larry David as they are with the likes of Netanyahu but you won’t hear them saying that.)

But you almost expect someone like Cruz to engage in some Muslim-bashing as a side dish to his rabid pro-Israel war-mongering and de rigueur gay-bashing.

You see, being a follower of Jesus, for Cruz, means you have a license to be a bigot and a homophobe. I suspect that it means the same for Governor Pence as well, as he seems to have every intention of signing this bill into law. (That is said to be happening today on Thursday, March 26, in a private ceremony.)

But the Jesus of proponents of this legislation have their own personal Jesus in mind, to borrow a phrase from the new wave band Depeche Mode, that doesn’t have much to do with the Jesus of the Sermon on the Mount. You know, the one who implored his listeners: “He who is without sin, cast the first stone!”

Apparently our governor believes that he is without sin; he's casting stones on the LGBT community while at the same time denying that this legislation has anything to do with gay marriage.

And I have yet to hear in discussion of this bill the possibility that certain Hoosiers will take RFRA as an excuse to discriminate against Muslims. Considering the antipathy in evangelical circles towards those of the Muslim faith, such discrimination is pretty much a sure thing if this law passes.

The Jesus many pastors in Pence’s crowd evoke in their sermons these days resembles American Sniper, drawing his bead on Mohammed such-and-such, rather than any characterization in scripture. If you don’t believe me, just listen to a sermon by televangelist John Hagee. Pick any of them.

No doubt, there are those on the far right (what other kind of right is there these days?) would strenuously object to my comparison of this law to the Nuremberg Laws and offer forth their very matter of fact apologetics for their legislation.

Yesterday the Indy star quoted Rep. Tom Washburne, R-Inglefield saying the following: "It's important that we allow our citizens to hold religious beliefs, maybe even those we might be appalled by, and to be able to express those.”

The Nuremberg Laws had their apologists as well. In 1934, a pamphlet appeared in Germany under the title “Why the Ayran Law?” written by E.H. Schulz and R. Frercks. The pamphlet presented all sorts of statistics showing that Jews didn’t wish to work in fields such as agriculture, were a stateless people, were genetically different than Germans, that the Jewish race is arrogant, etc…. Basically this pamphlet was encouraging Germans to “express” (to use Washburne’s phrase) the anti-Semitic bigotry that was soon to be codified into law.

Republicans such as Washburne want to give business owners and other service providers the right to deny service to same sex couples—or to anyone else who they think their servicing would impinge on their religious freedom. But, of course, they don't want to be called out for their bigotry.

Let’s back up a bit and look at the text of the Indiana Senate bill for a moment. The act, if passed, would provide “that a state or local government action may not substantially burden a person's right to the exercise of religion unless it is demonstrated that applying the burden to the person's exercise of religion is: (1) essential to further a compelling governmental interest; and (2) the least restrictive means of furthering the compelling governmental interest.”

So essentially, any bar owner or paramedic or doctor or pizza maker or cake baker can invoke this soon-to-be law as an excuse not to provide service. Aside from the Establishment Clause concerns that this invocation evokes, the health and safety of you and your fellow citizens are also at issue here.

Of course, you will have every right to sue the paramedic in court for damages seeing that he refused to treat you because of the pro-gay marriage logo on your tee-shirt. Or the Muslim headscarf on your head.

In court, however, said paramedic will be able now to invoke RFRA in his defense. And the burden of proving in a court of law a “compelling governmental interest” of the paramedic providing treatment will be on you, a burden likely to be substantial both in monetary and opportunity cost. You might have some luck crossing the Red Sea, as it were, in front of a sympathetic, rational-minded judge. Just don’t wind up dead first.

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Dan Grossman

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