By Darren Smith, Weekend Contributor
In the wake of the State of Indiana passing into law the Religious Freedom Restoration Act—a law crafted to allow businesses to curtail services to customers based upon religious objections—Seattle Mayor Ed Murray and later Governor Jay Inslee issued executive orders prohibiting government funded travel of employees to Indiana in protest.
The proffered reasons of these executives is to voice protest in that Indiana’s statute is incompatible with either state anti-discrimination laws or is in alignment with the political values of these local governments.
Orders of this type are actually counter to the idea of sovereignty of each state and interfere with the judicial, executive, and legislative processes that are inherently reserved to the voters and citizens of, in this case, the state of Indiana.
The text of Mayor Murray’s executive order is as follows:
An Executive Order prohibiting the use of City funds for travel by all City employees on City business to the State of Indiana after passage of S.B. 101 until further notice and reaffirming this Administration’s continued commitment to civil rights and ensuring equity for all people in Seattle and beyond and the establishment of an action plan that supports these efforts.
WHEREAS, the Indiana State Legislature passed and Indiana Governor Mike Pence signed into law SB 101, known as the “Religious Freedom Restoration Act”; and
WHEREAS, Indiana’s Religious Freedom Restoration Act provides individuals and any type of business, whether for-profit or non-profit, irrespective of its purpose, the right, based on a religious belief, to discriminate against a person because of his or her sexual orientation or any other protected category; and
WHEREAS, Indiana’s Religious Freedom Restoration Act is inconsistent with the work and values of my Administration to promote equity, to end discrimination, to eliminate institutional racism and to advance social justice for the people of Seattle; and
WHEREAS, Indiana’s Religious Freedom Restoration Act expressly provides that Indiana’s law does not provide a person a right to access the civil justice system if he or she is subjected to a discriminatory act as a result of its enactment;
WHEREAS, in his April 16, 1963, letter from Birmingham Jail, Dr. Martin Luther King, Jr., wrote, an “injustice anywhere is a threat to justice everywhere;” the City of Seattle will not stand by idly while discriminatory laws like Indiana’s Religious Freedom Restoration Act are enacted because such laws stand to threaten the equity victories in Seattle and elsewhere; and
WHEREAS, the City of Seattle will stand with those who are fighting for equity in Indiana and elsewhere across the county; and
WHEREAS, the use of discretionary public taxpayer dollars should, to the extent possible, reflect the values of the people of our City and should not be used to support the economies of businesses and governments that support and enact discriminatory laws and policies; and
WHEREAS, it is within my authority as the Chief Executive of the City of Seattle to manage, direct and restrict the expenditure of funds appropriated annually through the adopted budget by the Seattle City Council;
Now therefore, I, Edward B. Murray, Mayor of Seattle, hereby affirm the City’s commitment to civil rights and ensuring equity for all people in Seattle and beyond and order the following actions to establish a plan and strategies that support this commitment to equity:
1. All Executive department and office employees are hereby prohibited from using City funds for travel on City business to the State of Indiana in light of the passage of S.B. 101 until further notice.
2. All Executive departments and offices are hereby directed to review and identify existing contracts with any businesses with headquarters in the State of Indiana within 15 days of this Executive Order and report such findings to Deputy Mayor Kate Joncas.
3. The Director of the Office of Intergovernmental Relations (OIR), Nick Harper, is directed to develop and advance a strategy to voice the City’s strong objections to Indiana S.B. 101 in cooperation with other jurisdictions, the National League of Cities and the U.S. Conference of Mayors to identify other cities that share our values on equity and ending discrimination for all.
Washington Governor Inslee’s Executive Order:
Washington State has a strong history of prohibiting discrimination and promoting diversity and inclusion. Our Washington Law Against Discrimination (WLAD), Ch. 49.60 RCW, guarantees for all Washingtonians the right to be free from discrimination because of race, creed color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, physical disability or the use of a trained dog guide or service animal by a person with a disability.
Recently, Indiana passed legislation that will allow private companies to discriminate against individuals in that state, including but not limited to Washington citizens traveling to Indiana for work related purposes, contrary to the protections of the WLAD.
It is the law of Washington State and the policy of my administration to demand equality for all persons. Consequently, I hereby order that no executive cabinet-level agency or small cabinet agency shall allow publicly funded non-essential travel to the state of Indiana so long as the recently approved Religious Freedom Restoration Act, IC 34-13-9 exists in its current form. I invite all other statewide elected officials, institutions of higher education, agencies, boards and commissions to follow the provisions of this directive.
The text of Indiana’s Religious Freedom Restoration Act, while objectionable to many, is not relevant to the topic as to whether such actions by local officials have the ability to interfere in the affairs of another state’s legislative process. There are worrying trends that are coming into play with these types of actions.
Several problems are inherent:
First, Governor Inslee asserts by implication that Washington State has jurisdiction what would be considered a discriminatory practice to refuse an accommodation based upon religious objections. Washington’s Supreme Court and statutes specifically provide that the state has the ability to regulate this type of commerce. However, Washington has almost no jurisdiction (per RCW 9A.04.030) over any such act for which the Religious Freedom Restoration Act permits in Indiana. The only means for which Washington could assert jurisdiction would be if a person within Washington telephoned or otherwise communicated with a person in Indiana in a commercial transaction and was refused contrary to WLAD. If such a communication was in fact prohibited as interpreted by the courts the remedy would not be a general prohibition of commerce between the states by the executive. The state executive’s only statutory authority in that matter would be to, ironically, pardon the Indianan if convicted.
The orders exercise an undue influence upon voters.
If executives of one state declare that if a law of another state is passed there will be economic consequences exacted for the decision of the voters, it can unduly influence the voters to vote according to another state politician’s wishes. No matter how noble the goal is proffered by the out of state executive, it is for that state’s electorate and courts to decide.
The orders violate the spirit of interstate commerce
The governor and mayor are in effect regulating interstate commerce by declaring that the State / City will not participate in transactions or other business with Indiana if it involves a state employee to travel to that state. There are several agencies that encourage trade and investment with the state as well as general government operations that necessitate travel to accomplish. These activities are curtailed by the prohibition on travel.
The review of government contracts as mentioned in the Seattle proclamation is tantamount to collective punishment.
The implication of the possibility of refusing to do business between the government and businesses headquartered in Indiana is an irresponsible and likely unconstitutional act. Businesses that were headquartered in Indiana long prior to the Religious Freedom Restoration Act now face the possibility of discrimination strictly on account of their location.
States do not have a constitutional authority to engage in embargoes against other states or foreign nations. That authority is reserved to Congress. It also gives illegal preference to businesses that are either in-state or from the several other states not having law that the executives find objectionable.
Consequently, such prohibitions can interfere with the commerce of other 3rd party in-state businesses that transact with the proscribed businesses the executives could target.
It is not the role of outside political executives to collectively punish the residents of an entire state for the actions of its legislature. Those who voice concern of the influence of big money in state or federal politics should be concerned when a state government is acting with coercive means against the citizens of another.
While individual citizens are certainly within their rights to impose their own economic boycotts against U.S. states or cities, it should not be a right available to governors, mayors, or other politicians.
By Darren Smith
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.