One of the bills I flagged back in January, HB 1378, has passed both houses and is on its way to the governor to become law. The simple explanation of this bill is that the Indiana Public Retirement System is directed to make a list of businesses that attempt to inflict economic harm on Israel and, if those businesses do not respond positively to a cease and desist notice, INPRS is prohibited from investing in those companies.

It doesn’t necessarily sound awful when described in those terms, but the language in the bill is very encompassing. By the terms of the bill, a business is eligible for the list if you engage in “inaction that acquiesces in an effort by another person to limit commercial relations with businesses in Israel.” A business could be anything from a sole proprietorship to a multi-national corporation.

This looks like it may be a First Amendment lawsuit waiting to happen. I suppose you don’t have a right to have INPRS invest in you. But, if they engage in viewpoint discrimination — withdrawing funds, not because you’re a bad investment, but because of your views on Israeli policy, it seems like that could run afoul of the First Amendment.

Maureen Hayden, writing for CNHI, has a good column on the State firefly initiative. The goal was to have Say’s Firefly (named after 19th century naturalist Thomas Say) designated as Indiana’s state insect.

I take special interest in this one because the initiative was led by second grade kids from Cumberland Elementary and their teacher, Maggie Samudio. That’s part of my community. My kids went through Cumberland, I’m on the school board, and the school is a block away from me. I think the effort they  put in was fantastic. And they were able to enlist a bipartisan group of local legislators to carry the legislation. Senator Alting and Representative Klinker carried the legislation, and I believe Representative Truitt twisted some arms and turned in some favors to get a committee hearing — because our local legislators are community-minded people.

Ultimately, the state pie people did us in. Legislators apparently got enough blow back for what was regarded as frivolous use of time, naming a state pie, in 2009 that they had no appetite for proceeding with a state insect.  (I question this explanation a little inasmuch as the legislature did not balk at naming a state rifle in 2012.) Ultimately, however, the process for the students has more value than the actual passage of legislation getting the firefly named as state insect. Ms. Samudio’s response “there is always next year,” is definitely part of the process. For example, we have Daylight Saving Time because its enthusiasts ground away year after year until they were able to pass the law by the barest of margins. Also part of the process is realizing that the merit of your cause is not the only factor — there’s also the context in which legislators are operating. In this case, part of that context was having blow back from the sugar pie efforts some years earlier.

Regardless of the outcome this session, I’m proud of our kids and our community.

The news out of the State House is that SB 344 is not getting called down for Second Reading on today, the deadline. I never got around to reviewing it in any detail, but I believe SB 344 was initially much like SB 100 without protections for transgender people. With some more or less significant amendments in the committee report, that was the vehicle for the LGB(T) Rights / Religious Freedom legislation this year that made it out of committee. (As I said before, I don’t necessarily agree with the “religious freedom” nomenclature since one person’s freedom is very often another person’s burden, but I lack a better short hand, so I’m sticking with it.) Without a vehicle having cleared one chamber or the other, it is very unlikely that LGBT Rights/Religious Freedom language would be allowed as an amendment in some other legislation as the bills switch houses.

I’m a white, heterosexual, upper-middle class, cisgender male without any particular religious motivations, so I have the luxury of being philosophical about such things; but I have a hard time feeling bad about the death of this thing. It reminds me of Jonathan Coulton’s half-pony, half-monkey monster from Skullcrusher Mountain. (Premise: Evil genius is trying to woo a love interest he has abducted):

I made this half-pony, half-monkey monster to please you
But I get the feeling that you don’t like it
What’s with all the screaming?
You like monkeys, you like ponies
Maybe you don’t like monsters so much
Maybe I used too many monkeys
Isn’t it enough to know that I ruined a pony making a gift for you?

Despite the good intentions of a lot of well-meaning legislators, I think the best we were going to get out of this was a ruined pony.

The problem, as I see it, is that something has to give. The two values the legislators are trying to balance are incompatible. This is not a situation where two things we like mostly co-exist but occasionally clash in incidental ways. To be clear, I think religion generally is mostly compatible with equal rights regardless of sexual orientation and gender identity. If you read the Bible, there is a ton of stuff that has absolutely nothing to do with gender or sex. But, this specific legislative fight was never about a fear that LGBT rights might somehow interfere with, say, a religious organization’s ability to care for the poor. Rather, a driving force for the religious concerns lobbying the General Assembly is a conviction that gay relationships are sinful. On the flip side, a primary concern of LGBT groups is discrimination motivated by that sort of religious world view.

Maybe I have the parameters of the fight all wrong or maybe I am not sufficiently optimistic about the possibility for creative solutions in this context; but it seems to me that when push comes to shove and the competing value systems come into direct conflict, one is going to have to take priority over the other. At the moment, it looks like the Unstoppable Force of LBGT rights versus the Immovable Object of Religious Freedom. Eventually, in these situations, in turns out that the force was not unstoppable or the object was movable. I have my suspicions, but clarity can be frustratingly slow in coming. And, without clarity about which one is going to take priority, the resulting legislation is going to be a half-pony, half-monkey monster.

Niki Kelly, writing for the Fort Wayne Journal Gazette, has a good write up of the motivation behind some of HB 1172. It seems that someone at the Indiana State Board of Cosmetology and Barber Examiners looked at the definitions for cosmetologists and for barbers and decided that since the definition for cosmetologists referenced cutting hair and the one for barbers referenced beards and mustaches, consequently it must mean that cosmetologists can’t trim beards and mustaches. Some participating in the discussion apparently like to bring up straight razors — which barbers have some training with and cosmetologists don’t — but neither statute mentions straight razors, and there are clearly other ways to trim beards, so that’s a red herring.

For cosmetologists, the current version of IC 25-8-2-5 says that cosmetology means, among other things, “cutting, trimming, . . . or similarly treating hair.” Meanwhile, per IC 25-8-2-2.7, “barbering” also means “cutting, trimming, . . . or similarly treating hair,” but it also means “shaving or trimming beards and mustaches.” Now, in defense of the staff attorney who took a look at the question, this a perfectly sound piece of statutory interpretation — you have two sections with parallel language about cutting and trimming hair. But then one of these sections has this extra bit about shaving beards. There is this legal fiction  in statutory construction that the General Assembly would never use extra words in a statute, so you have to give each one force and meaning if possible. So, you have to do something with this idea that trimming beards somehow adds something to the statute not already present with the language about trimming hair. Therefore, in the land of licensure, beards are not hair.

HB 1172 would add language that says shaving beards and mustaches is part of cosmetology.

Some of the discussion reported by Niki Kelly was a fear that this would have an economic impact on barbers:

Rep. John Bartlett, D-Indianapolis, said the bill could put barbers out of business, noting there are 46,000 licensed cosmetologists in Indiana but only 3,400 licensed barbers.

“The big cat is eating up the little cat,” he said. “We just need to make sure it’s fair.”

Licensure laws are usually discussed in terms of public safety. After all, you have to have justification if you’re going to prohibit large chunks of the population from engaging in certain behavior. Public safety is a very valid reason for such regulations. However, economic protectionism is very often a major reason for these laws, but it is seldom discussed very openly. If the legislature wants to say that straight razors are dangerous in the hands of untrained individuals, you’ll get no argument here. But if that’s the true concern, have the legislation address the tools that are regarded as dangerous. Don’t arbitrarily say that beards aren’t hair as a way of preferring one industry over another.

Stephanie Wang, Chelsea Snyder, and Chris Sikich have a good article in the Indy Star on the Senate’s handling of the pending civil rights legislation. A hearing is underway as I’m writing this, so things are in flux as to the substance of what’s going to come out of committee in terms of protections for people who are gay, lesbian, bisexual, or transexual and the balance, if any, for individuals who claim religious objections to those people.  The general consensus is that Republican lawmakers are warming somewhat to the idea of protections for gay, lesbian, and bisexual people but will freeze out transexual people due to a lack of comfort or familiarity as to their issues. Whether that translates into half a loaf, a whole loaf, or a poison pill remains to be seen.

The article talked a lot about Sen. Long’s willingness to address the issue in the Senate. I enjoyed Sen. Steele’s quote:

“We tackle tough problems all the time,” said Sen. Brent Steele, R-Bedford. “I’ve never seen this place in 20 years dodge an issue, and if it costs you an election, it costs you an election. I’ve never seen people lose elections because of one or two votes cast in this place. We’re not gutless people. We take our jobs seriously, and we’re not here to get re-elected. We’re here to do the right thing, and if we get our asses beat, we get our asses beat.”

 

The Associated Press has a story on HB 1001 introduced by Rep. Soliday which was heard by the House Roads and Transportation Committee and passed by a vote of 8 to 5 as amended. I don’t know what the committee amendment said. The story says that it would raise additional road funding by increasing the State’s cigarette tax by a dollar per pack and raise the state’s gas tax from 18 cents per gallon to 22 cents per gallon. It also gives local governments the discretion to raise certain taxes to fund local projects.

This is at odds with Gov. Pence’s plan which is to come up with $480 million through a combination of borrowing and spending a chunk of the State’s reserves.

Gov. Pence’s ideological commitment to not raise taxes is misplaced here — particularly if one is committed to a use tax model of paying for roads. I’m not necessarily convinced it’s the best model, but we like the gas tax because it’s a proxy for road use. If you use the road more, you pay more in taxes to support the road. It definitely has an appeal. (I think that sound infrastructure has indirect economic benefits to people other than those who are actually on the roads — but that’s probably a battle for a different post.)

We are not currently keeping up with the wear and tear on our roads. In other words, we are using more of our roads than we are paying for. So, it makes sense to raise taxes to a level that matches our use of the roads. What we pay in taxes for our roads is chump change compared to the value we get out of having good roads. With gas prices low, this is the time to raise the gas tax. Gas prices are down a dollar or more from levels we found sustainable. As variable as gas prices are, four cents is not going to be noticeable to most Hoosiers. (I’m not a fan of smoking and, personally, find the habit disagreeable, but the cigarette tax strikes me as an odd choice for funding roads. Just raise gas taxes or something road-related to wherever they need to be to sustain road maintenance.)

Sen. Greg Taylor has introduced SB 267 which has passed out of the Senate Committee on Corrections and Criminal Law. When the General Assembly modified the expungement law, it limited an employer’s ability to question an employee about the employee’s prior criminal history on an application such that the application could be phrased only in terms “that exclude expunged convictions or arrests, such as: ‘Have you ever been arrested for or convicted of a 7 crime that has not been expunged by a court?'” This new legislation would expand that limitation to interview questions as well.

The legislation also would impose a penalty on a violation by making it a Class C infraction and Class B infraction for multiple violations.

Speaker Bosma has introduced HB 1378 which requires the public retirement system (the Indiana State Teacher’s Retirement Fund or the Public Employee’s Retirement Fund) to divest from businesses that engage in action or inaction to boycott, divest from, or sanction Israel. It is being heard in the House Labor Committee.

There is a lengthy “legislative findings” section which, in my mind, is always a red flag. The law (generally)  tells you who is required or permitted to do what to whom under what circumstances. Making a policy argument about it in the Code suggests that the value of whatever you are permitting or mandating does not speak for itself. There are a lot of words in the findings, but what particularly stood out are the notions that Israel is uniquely good among Middle East nations and college students are campaigning to boycott against Israel, specifically that efforts to boycott Israel “increasingly occur on college and university campuses nationwide, leading to a climate of intimidation, fear, and violence on campuses in Indiana.”

“Action or inaction to boycott, divest from, or sanction Israel” is defined very broadly as “action or inaction that: furthers;  coordinates with; or acquiesces in; an effort by another person to penalize, inflict economic harm on, or otherwise limit commercial relations with the Jewish state of Israel or businesses that are based in the Jewish state of Israel or territories controlled by the Jewish state of Israel.”

It requires the board of trustees of the Indiana Public Retirement System, by January 31, 2017, to develop a list of restricted businesses, businesses that engages in activities to boycott, divest from, or sanction Israel. If the public retirement system has investments in businesses on the list, INPRS will send notice to the business which will then have 90 days to cease the offending activities. It is prohibited from investing in such businesses. It provides immunity against claims based on acts or omissions under the law.

Generally speaking, I think our foreign policy is hindered by thinking of Israel as a special snowflake. Often, I think our interests are aligned with theirs, but sometimes not, and I think our relationship to Israel should ebb and flow based on how closely aligned our interests are — as with any other foreign country. Secondly, that’s much more of a federal concern, and it’s a little bizarre when states get involved in targeting particular countries. (For example, I feel a little weird when, due to State law, I tell some local contractor that to do business with the county, they have to certify that they don’t do $10 million worth of business in Iran.) Finally, the bit about college campuses is a little weird. Which Indiana campus has become violent over this issue?