It’s been a strange week, especially in Indiana. On this episode, before getting to the RFRA-ff, we hit on a neat architectural inversion: LA-heavyweight Morphosis designs a "middle-finger" luxury tower in the quaint mountain town of Vals, Switzerland, while the subtly grand Swiss museum-master Peter Zumthor pushes a calligraphic inkblot for LACMA on LA's Miracle Mile. Vals is already home to Zumthor's Therme Spa. It’s like Trading Spaces, but with starchitects!
On the latter-half of our show, Amelia, Donna and Ken talk with Brian Newman, Archinect Sessions’ legal correspondent, about Indiana’s controversial revisions to the Religious Freedom Restoration Act – with our own Donna Sink on the ground in Indianapolis, we dig into how this national and local issue would affect architects and the profession.
Paul is away this week, on vacation in the outer reaches of Peru, blissfully out of Skype's reach. He'll be back as soon as he re-enters the connected world.
As always, you can send us your architectural legal issues, comments or questions via twitter #archinectsessions, email or call us at (213) 784-7421. And if you can, we'd love for you to rate us on iTunes or Stitcher!
Listen to episode twenty-three of Archinect Sessions, "The Erection, the Inkblot, and the RFRA Riff-Raff":
Shownotes:
Los Angeles art organization, Machine Project
The artist Andrea Zittel's High Desert Test Sites and Indy Island
The Indiana pizza parlor mentioned by Brian, Memories Pizza
AIA's Code of Ethics
Sketches:
Short video on Andrea Zittel's work:
49 Comments
Ken is totally right about the AIA's weak tea on social issues and values.
Serious question: Who's values should the AIA be promoting?
EKE, the ones that are in our Code of Ethics.
Fair enough. I agree. Regarding RFRA statutes, though, what specifically should the AIA be doing, besides publishing a Code of Ethics and saying they stand behind the code? I guess I'm not understanding the criticism.
I have a question about how far the code of ethics goes, and what happens when it potentially conflicts with the law. Let's take the example used on the podcast where an architect is hired to design a facility for a client they know to be discriminatory—their beliefs are common knowledge. However, instead of being the KKK, that organization is a religion. So, should the architect not take the commission because they know that it furthers discriminatory practices? Or, are they actually required to take the commission so as not to discriminate against that religion?
I ask because it seems to me that if religious people want the ability to discriminate against others, it seems backhanded to not allow others to discriminate against them, and puts service providers who don't want to address religious issues in a double-bind.
EKE, I'll assume you didn't listen to the podcast. My criticism, based on the comment back from the AIA, is that a wait and see position is a lost opportunity for a professional organization looking to increase awareness with the public at large. The Code of Ethics is for us, the architects, and a press release is not a full throated effort at bringing greater awareness of the profession. I mean, the AIA could angle this to their advantage and they made a conservative choice, when many others are taking a public stand.
Rationalist, that's tough, because we could easily be talking about the Catholic Church here. The difference might be how the 1993 law allows for religious exceptions. The Indiana law made it possible for private citizens to discriminate, with the full backing of the state. I will say no architect, taking a principaled stand, would be required to take a client they didn't agree with.
Ken I absolutely mean the Catholic church, the Southern Baptist church, any church that has decided not to be inclusive of non-hetero orientations. For that matter, the Mormon church and probably others discriminate against women. I would *want* to say the same as you in your last line, but if we refuse to design for someone because we don't want to support their religious beliefs, why wouldn't or shouldn't we be treated the same way by the law as someone who won't bake a cake for a gay wedding because of their religious beliefs?
To people who don't know me, I probably sound like a troll, I know. But I absolutely want to be able to say that you can't discriminate against women or gays, but also absolutely want to be able to reject any religious work because my fervent non-belief would be a terrible fit for them as a designer. That probably makes me a complete hypocrite.
Florist, who has no problem serving LGBT individuals, refuses to provide services for a gay wedding because they feel it is against their code of ethics.
Architect, who has no problem working with Catholic individuals, refuses to work for the Catholic Church because they feel it is against their code of ethics.
Difference?
uh, yeah, big difference. but if you take out enough content out every sentence looks the same.
talk about nihilism.
I'm seriously interested in trying to understand your opinion. Not trying to pick a fight.
What's the difference?
I'm with you on that EKE—I wish that there was a difference, but I'm afraid that under the law there isn't.
EKE, Are you asking if its legal or ethical?
Should we, as a society draw a distinction between those two examples, and if so, on what basis should our society make that distinction?
No, I don't think there should be a difference. Neither the Architect nor the church should be allowed to discriminate.
But thats not how things are.
I don't think sexual orientation is covered under the Civil Rights Act yet. Religion is.
The difference is in offering *services* and operating a place of *public accommodation*.
We architects don't operate a place of public accommodation. We can choose which clients to enter into a contract with or not. If an architect opens a cafe in their firm office, they can't choose who to serve or not in the cafe if it's classified as a place of public accommodation.
Doh!
Churches, Golf Country Clubs, Men's Clubs, KKK = Private Organizations = Allowed to discriminate; race, sexual identity, religion
Florists, McDonalds, Pep Boys, Starbucks = Public = Not allowed to discriminate
It would seem that states that do not recognize, or have laws regarding protected classes, do allow for businesses to discriminate, if they were holding it as faith based, hence the mess in Indiana, and the pizza place stating they wouldn't accommodate LGBTQ.
This is what happens after Citizens United - corporations are people - and Hobby Lobby - corporations are allowed to practice their beliefs, as private corporations.
Chalk this one up to - five fucked up Justices.
Ken- Do you think that an architect's practice a "private organization", like a country club, or is it "public", like the florist?
Kids, this is a gay man's profession. The AIA lost its base.
EKE it's not Ken you should be asking that question of, it's the laws governing business in your state. A contract is different from a sales counter.
Olaf, despite the vague response to Ken from the AIA on this specific topic, the AIA has not "lost its base" - the Code of Ethics is absolutely clear that discrimination based on sexual orientation is not allowed.
Sorry Donna my alter ego still managed to post that while in the cab ride home from the bars last night with wife,ha....that comment is a partial joke but accurate to my experience and I am sure they didn't lose its base....one of my best friends is log cabin republican, although he may slowly be converting to democrat....sometimes it's best just to keep rolling and ignore the trolls
Hahaha love it Olaf, and glad you had fun last night!
John Morefield, for example (I love this idea):
He can't turn away people at his farner's market stand. If someone gives him a nickel, he can't refuse to serve them. He can, however, decide not to enter into a longer-term contract for services after he's completed the 5 cent transaction.
From the attorney:
"The answer is, yes, an architect can choose to deny service to a potential customer who practices discrimination. The worst they could do is try to
give you some bad publicity (ie tell other Catholics not to do business with you). But they would have no legal recourse.
Note that you would want to make it clear that the reason you were denying service is because of their discriminatory conduct, not because of their religion. In other words you want to tell them "we don't do business with people who discriminate against the LGBT community," not that "we don't do business with Catholics."
You could also cite them to the AIA Code of Ethics on this subject as a reason for denying service."
Hope this clears the issue.
Very interesting
I saw a funny meme somewhere once that said "architects are to straight to be interior designers, to gay to be engineers."
Ken, it doesn't really clear it up for me. The attorney advised:
"Note that you would want to make it clear that the reason you were denying service is because of their discriminatory conduct, not because of their religion. In other words you want to tell them "we don't do business with people who discriminate against the LGBT community," not that "we don't do business with Catholics."
How is that different from:
"Note that you would want to make it clear that the reason you were denying service is because you personally disagree with same-sex marriage ceremonies, not because of their sexual orientation. In other words you want to tell them "we don't cater eame-sex marriages," not that "we don't do business with LGBT people."
?
......<sigh>.......
Same sex marriage is *legal* in Indiana. So a "personal disagreement" with it is meaningless under laws governing business relationships, at least it was prior to RFRA. A "personal disagreement" with interracial marriage would also be meaningless. Businesses invoking RFRA have to use a religious belief as reason to deny providing business to a same sex couple, which is a huge-ass wide open barn door for *anyone* to invoke their religious practice to deny business to *anyone* they want to.
Also, refusing to enter into a contract with someone is not the same as "denying service" in a place of public accommodation. See, it all comes back to architecture! (Though the internet of course makes the concept of "public places" very fuzzy.)
Whenever I have engaged someone to provide catering services for an event, for example, I have entered into a contract with them.
EKE, what exactly is your point?
No one, in any business of any kind, is allowed to discriminate against protected classes of people. In Indiana, LGBT people are not a protected class. In Indiana, RFRA specifically allowed businesses to discriminate against LGBT people.
Do you think that's acceptable?
Pretzel meet EKE, EKE meet pretzel. Are you a Libertarian? Do you think it's okay for a restaurant to not serve blacks, because it's against their religion?
What religion is it that doesn't allow their members to serve blacks?
Donna, I'm really not driving a particular point, except that I see a lot of hysteria being whipped up over these RFRA laws, and I'm not sure that it's warranted. I see a lot of what looks to me to be muddled thinking about it, so I was simply probing to find out where you all stand on it. Maybe I can learn something.
What I'm curious about is that you seem to be trying to carve out a special place for architects, saying that when we contract with a client we are not subject to the same standard as say, a florist who contracts with a client to provide services. I don't understand that, and then when Ken suggests that it's acceptable for an architect to refuse services to a Catholic potential client, based on the fact that Catholics "discriminate against LGBT people", well, that deserves to be probed into a bit.
And EKE this is why I said you need to look at your states laws around these issues. Discrimination is defined in specific legal terms. I can't say *exactly* how a florist differs from an architect, and it is the murkiness of these situations that is why these issues often end up in court.
Some of the discussion upthread was ignoring the idea of public accommodation, which is a pretty bright line.
Also one specific point you raised, EKE: the original language in Indiana's RFRA left the interpretation of religious belief and practice so incredibly vague that one *could* have ginned up a reason that their religion didn't allow them to serve people of any ethnicity. This is why there is so much hysteria over the law, and is also why the Church of Cannabis now exists in Indiana - someone decided to take advantage of that vague language.
EKE, are you not familiar with American history? Are you not familiar with:
Blacks and Mormon Church
What, you mean as far back as 1959?
Washington State Anti-Discrimination Laws
I grow tired of try to straighten your pretzel for you, so I'll link one more article I found through googling.
How RFRA in Indiana was different.
It's pretty simple:
"A place of "public accommodation" is defined as “an establishment either affecting interstate commerce or supported by state action, and falling into one of the following categories: (1) a lodging for transient guests located within a building with more than five rooms for rent; (2) a facility principally engaged in selling food for consumption on the premises, including such facilities located within retail establishments and gasoline stations; (3) any place of exhibition or entertainment; (4) any establishment located within an establishment falling into one of the first three categories, and which holds itself out as serving patrons of that establishment; or (5) any establishment that contains a covered establishment, and which holds itself out as serving patrons of that covered establishment. Bishop v. Henry Modell & Co., 2009 U.S. Dist. LEXIS 104830, 39-40 (S.D.N.Y. Nov. 9, 2009)"
Ok, maybe two:
Wikipedia
I think that's certainly a possibility, but then how do we find a gracious compromise between the interests of the State, and people of genuine faith?
You said that Indiana doesn't recognize gays and lesbians as a protected class. So with or without RFRA , they could potentially be the recipients of discrimination. A couple of questions:
- If Indiana is as progressive as you describe in the podcast, why don't they have a law that establishes LGBT people as protected?
- Since LGBT folks aren't a protected class in Indiana, has there been a historic or longstanding avalanche of discrimination against them? I'm not aware of it being a particular or extraordinary problem there, although you would have to answer that. My bet is that discrimination of this kind is extremely rare there. How would the RFRA law make this situation any worse?
Re: the Church of Cannibis... Remember that RFRA only ensures that the "objector" would have an opportunity to make a case in court, and to try to prove that their religious objection was legitimite and deeply held. My guess is that the "Church of Cannabis" might find that a challenge. :)
By the way, I love your sketches!
Ken-
I am very well aware that historically, religion has been used as an excuse for a host of really awful things. But the LDS Church opened the priesthood to people of color over thirty years ago, and were so serious about the change that they wrote anti-discrimination into their most holy documents. And that's the most recent example you cited. I'm not aware of any bona fide religion that preaches discrimination against blacks today. I could be wrong, and I am interested in learning if I am.
So this all feels a bit like a solution looking for a problem to me. The media had to send a pack of reporters out into the field to beat the bushes, trying to find a restaurant owned by Christians who would talk about a hypothetical. They hadn't discriminated against anyone, mind you. This was thoughtcrime.
Indiana is not liberal, at all, and I didn't say it was in the podcast. Indianapolis is pretty liberal as mid-sized US cities go; we are a typical example of the cities in any state tending to be more blue than the rural areas.
I absolutely agree that this RFRA is a solution looking for a problem. But not in the direction you think: Indiana recently legalized gay marriage, and the RFRA is a direct response to that change in our state's laws. It is bone thrown to the extreme right-wing supporters of the government here.
That pizza restaurant thing was indeed a media shitshow that the RFRA provided the opportunity for. There's nothing redeeming about it, from either side.
More generally: there is so much to discuss in terms of ethics as an architect, and I don't think our schools do a very good job of raising the ethics of practice in their curricula. When I taught Pro Practice at BSU we spent a *lot* of time on ethics. It's a conversation i really enjoy. I don't really enjoy discussing Indiana's RFRA, because the main aspect of it is how completely dysfunctional politics in our society is. This was tit for tat legislation, plain and simple. No one voting for it did so based on thinking it was good policy for anything other than their own re-election possibilities. Legal and economics policy experts, from all sides, pointed out how terrible it is as a piece of legislations. No one paid attention, and the fallout is exactly what was predicted.
This is the last time I try to help you.
https://www.aclu.org/lgbt-rights/court-rules-florist-discriminated-against-gay-couple-refusing-sell-flowers-their-wedding
Washington State has LGBTQ as a protected class. The florist discriminated against this couple. This was the canary in the coal mine for the Indiana RFRA legislation. Indiana does not have LGBTQ as a protected class, and the legislature knew that, and they also knew that the courts have rolled, and will continue to rule for gay marriage rights. The problem with the idiots in Indiana is that the court got there before they did, and that wrote a law that firmly allows for discrimination against gays. I mean, hey, you can get married, but we'll continue to treat you as second class citizens.
As for your question, is this a problem in Indiana, and you're not aware of there being a problem. Gays not having basic civil rights is a problem; adoption, medical benefits, anything connected to state function or health care would be a problem.
You make 30 years ago sound like a century. Thirty years was 1985!
Again, for the umpteenth time; this is a state by state issue, and in many cases, a county, or city by city issue.
"Gays not having basic civil rights is a problem; adoption, medical benefits, anything connected to state function or health care would be a problem."
I absolutely agree with you. How does RFRA in Indiana affect gay persons' rights to adoption, medical care, anything connected to state function?
All I can say is what a fucked up society we live in, where the AIA code of ethics is prefaced with a disclaimer about anti-trust law that makes observance of the code optional, and where the RFRA is used to force one group's religious delusions, er, beliefs on everyone else.
But it's not about state functions. The Indiana RFRA differs from other states' RFRA's specifically in that it doesn't have to be about state functions:
Legal Professor Tobias Barrington Wolff provides a concise description of how the Indiana RFRA is substantially different from others in three ways:
- Private parties are harmed. The Indiana law expressly provides that its special religious rights apply in disputes between private parties, where the government is not a part of the lawsuit. In other states -- state laws make clear that these special religious rights apply only when an agency of the government itself is the one interfering with religious exercise.
- There is no accountability. The Indiana law expressly provides that people can claim a special religious exemption to any law, regardless of whether the religious objection involves a tenet that is central to their faith, and regardless of whether their objection involves a matter that their religion actually compels. There is no accountability concerning the legitimacy of that claim so long as the person making the claim is sincere.
- Corporations are given special rights. The Indiana law expressly confers these special religious rights on corporations and other for-profit businesses, so long as there are individuals who have "control and substantial ownership" of those businesses and who assert the religious objection.
Additionally, Lambda Legal points out that Indiana's RFRA is different in that "(it) is so broadly written that someone can sue even without their religious beliefs having actually been burdened simply by claiming that is "likely" to happen.
Source here.
As I said above, it was a horribly written law. There are RFRAs that do what the original federal law set out to do, but this one is not the same.
Also half those sketches are Ken's, not mine.
Coda; LGBTQ people in Indiana, can still be fired for being, you know, not hetero.
A bit of a departure from the heated discussion above; great episode! I love the sketching references and the Andrea Zittel spot.
And just for fun here is one of my own.
Late to this, but regarding how a florist differs from an architect, with regards to providing/denying a service. Architects have a national organization with a defined code of ethics. I could be wrong but doubt that florists dont' seem to have a national organization with a defined code of ethics.
i did find The Society of American Florists (SAF) but couldn't find anything similar to AIA Code of Ethics. It is more a trade organization not licensing group...
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