Tag: hate crime

The Arizona Law That Never Was…And the Bigger Picture

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Here are my thoughts on the Arizona bill that was vetoed by Gov. Jan Brewer. It appeared this morning on legal website theLaw.tv.

Last night, Arizona Governor Jan Brewer vetoed the controversial SB 1062 bill. It has been known as the “religious freedom bill,” as well as an “anti-gay bill.” The simplified meaning of the bill is that it would give small business owners the right to deny service based on the owner’s religious beliefs. The Arizona legislature approved the bill, but it required Gov. Brewer’s signature to become law. She vetoed the bill, stating that she not heard of one case in Arizona where a business owner’s religious freedom was affected, and that the law was over-broad with the possibility of negative and unintended consequences.

Here is a prime case of when religion, law, and money collide. It appears that this law came from conservative Christian business owners, who did not want to perform certain services for the gay community. The examples that came up were those of the photographer who did not want to photograph a same sex wedding; a printer who did not want to make flyers for a gay event; a baker who did not want to bake a wedding cake for a gay couple.

On its face, it seems to be narrowly intended for the gay community. However, any law can easily take on a life of its own. The lawmakers may have one intent, but laws have much wider applications. Under the proposed Arizona law, as long as you can (1) show that your action or refusal to act is motivated by a religious belief, (2) that your religious belief is sincerely held, and (3) that the state action substantially burdens the exercise of your religious beliefs, there would be no adverse actions against you for denial of a service.

So look at the possible broader application. A small business owner can say: “My religious beliefs say that I cannot do a wedding cake for an interracial couple, and forcing me to do so will burden my religious practice.” Sadly, there are people that truly believe this. The law now becomes a slippery slope of application, making the law over-broad. Also, how does one define a “substantial burden” to the exercise of your religion? This standard is too vague, which would lead to problems in the court interpreting and applying the law.

Keep in mind, nothing prevents business people from declining clients now. A business can pick and choose their clients, as well as the types of project they want to do. Most patrons tend to go to places where they are welcome or have been referred to by friends. So from a common sense application, this law was not needed. There have been stories from across the country of conservative Christians being “forced” to do work for gay clients and sued for refusing. But each case needs to be examined, based on the facts, by the courts involved. There is always more to a story. Our judicial system is designed to decide such matters. And this is what Gov Brewer pointed to when she vetoed the bill. She said that she could not find any such cases of this in Arizona. As a result, it was clear that legislation was not necessary.

The other interesting aspect about this bill is that some Arizona legislators ran for cover in the face of the backlash. Some legislators came out and asked Gov. Brewer not sign the bill. One legislator claimed that they didn’t know what they signed and that the law wasn’t explained to him and his fellow legislators. It seems as the depth of the possible applications became known, the legislators had a change of heart.

Last but not least is finances. Arizona is hosting the next Super Bowl, and the NFL, which will soon have its first openly gay player, was keeping a close eye on this bill. Other large corporations publicly voiced their opposition. Arizona was in jeopardy of losing business dollars if the bill passed.

Similar bills are pending in other states, including Kansas and Georgia. Constitutionally, gays are not always a protected class the way African Americans, women, and people with disabilities are. Because of this, discrimination against gays is a huge legal battleground.

America is about freedom, including freedom to disagree. The face of America is changing. The law is going to have to keep up, which will be a challenge. Equality for all will be enforced, either through the ballot box or the pocketbook.

The author Melba Pearson is an attorney in South Florida. Follow her on Twitter @ResLegalDiva.

Richie Incognito: Hazing, Bullying or Hate Crime?

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Richie Incognito is not so incognito these days. Instead of receiving attention for his plays on the field, his career is possibly over due to his bullying of a teammate. Incognito is alleged to have made racist comments to Jonathan Martin, a fellow teammate on the Miami Dolphins, and bullying him to the point that Martin left the team. Ironically, Incognito appeared in a Dolphins public service announcement that is played at home games, asking fans to behave in a “civilized” manner, and not be unruly during games. 

It seems crazy. Martin is 6’5”, 312 pounds, and Incognito is 6’3”, 319 pounds. One would think the two players, trained to hit hard on the field, would just fight it out in the locker room and call it a day. However, it went deeper than that. Incognito was part of a group of veteran players, who hazed Martin, including forcing him to pay for them to go on a trip to Vegas, to a tune of $25,000. They played childish pranks on him, such as inviting him to sit with the group for a meal, then getting up and leaving him alone when he sat down at the table.

And then there were the racial comments. Incognito, who is white, called Martin “half a n—“, (Martin is biracial) and threatened his family. Not to mention the ultimate sin…talking about Martin’s mother. These threats were made in voicemails as well as text messages. As a result, now there is even talk of charging Incognito with a federal hate crime. Under federal statutes resulting from the Civil Rights Act, it is unlawful to intimidate, or threaten someone because of their race and participation in a protected activity (such as voting, participation in a state or federally funded program).

Keep in mind, we watch football for fun; for the players, it’s their workplace. The same workplace rules apply in football as compared to any other field of work. However, the NFL workplace is a very different animal. The aspect that is making this case unique is that of the “locker room” culture.  Men are encouraged to be hard on each other emotionally, whack each other’s backsides with towels, and be macho guys.  As fans, we admire as well as reward their toughness on the field; however, there is no way to force players to turn that toughness off when they exit the field.

Also remember that Jonathan Martin is a rookie, having joined the team in the 2012 NFL draft from Stanford University.  He’s young (age 24), at a new job, and is now being pushed around by veteran teammates. He wants to fit in; but how much is enough? Martin was viewed as vulnerable by the senior players, as well as possibly the coaching staff. Clearly, Martin took all he could until he suffered an emotional breakdown. No one wants to be harassed at work. Bullying turns a dream job into a living nightmare.

I doubt Richie Incognito will be federally prosecuted; unless the Dolphins receive state or federal funding, it will be a stretch to find a link that would give Martin protection under the federal hate crime statutes. Secondly, there may be too much professional backlash for Martin, who has been traumatized to the point of taking a break from football and going to his home city for therapy. Without a cooperative victim, the case would be short lived. Lastly, from the tone of the transcripts released of the texts/voice messages, it may be difficult to show that the statements were more than Incognito being an obnoxious bully. There may be an argument to be made for some sort of stalking charge; but again, it would be weak at best.  New reports have surfaced that the Dolphins coaching staff may have egged Incognito on, encouraging him to “toughen Martin up”. If that is the case, there may be a viable civil lawsuit. Coaches need to look at what kind of environment they are creating, and act accordingly.

Should Incognito be prosecuted? No.

Fired? Absolutely.

Blacklisted from NFL? Everyone deserves a second chance. If he issues an apology, comes out publicly against racism and bullying, and stops acting like an idiot, there may be some redemption in a season or two. His PR agent has a lot of work in the years ahead.

 

Melba Pearson is an attorney, writer, speaker, wife and Resident Legal Diva. Follow her on Twitter @ResLegalDiva.