Recently there has been a lot of controversy surrounding the Indiana Religious Freedom Restoration Act (RFRA). This act declares, “a governmental entity may not substantially burden a person’s exercise of religion…[unless it] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The law is very similar to more than twenty other such RFRA laws in other states, as well as a 1993 federal law, which states, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”
A few days ago I participated in a panel discussion of the issue at Taylor University. In addition to some substantive Q&A with the audience, those of us on the panel addressed several prepared questions. Below are my responses.
What is the nature of ‘religious freedom’?
Legally speaking, religious freedom is the right to practice one’s faith without interference or censure by the government or fellow citizens. The First Amendment says Congress cannot “prohibit the free exercise” of religion. Morally speaking, we may agree that such freedom should be granted by governing authorities just to the extent that practicing one’s religion does not violate the basic rights of other people. (This is also essentially affirmed in the French Declaration of the Rights of Man in 1789.) And it is here that things get messy. For some religious practices could be construed as violating someone’s rights.
What do laws like the Indiana RFRA aim to affect as far as religious freedom is concerned?
Although the principal context of the 1993 Federal RFRA concerned government encroachment onto Native American sacred land, this law and similar state laws have more generally been taken to aim at protecting a religious person’s freedom to abide by their religion’s core moral convictions. In more recent years, as regards the whole issue of same-sex marriage and religious folks affirming the traditional Judeo-Christian view of marriage, this has been taken to include not being forced to commit the sin of complicity with immoral acts.
What does this legislation actually allow?
This legislation allows a person the freedom to practice their faith without “substantial burden” being placed on them by the government. And, in the legal context, a business or corporation may be construed as a “person”. In last year’s landmark “Burwell v. Hobby Lobby Stores” Supreme Court decision, it was decided that for-profit corporations may hold religious beliefs.
What is it about the Indiana RFRA as opposed to the federal 1993 version that has provoked such ire?
This question commits the fallacy of complex question. Did this law in particular provoke “such ire” or were there other factors that initiated and fanned the flames of controversy? Since there is the 1993 federal law and more than thirty states have similar laws and legal provisions, many believe it is the latter. Some speculate that the Indiana law was simply chosen by LGBT activists for practical reasons to generate national public attention to this issue—perhaps to prime the pump of public opinion as the Supreme Court is currently deliberating a case pertaining to the same-sex marriage issue. And much of the controversy also seems to have been media driven.
Does the language of this particular version legally permit the service discrimination of certain minorities beyond the circumstances of participation in religious ritual and ceremony?
I don’t see how it could, since there is nothing about being a minority per se that presents a challenge to any reasonable religious practice. Perhaps this is one of the reasons why the RFRA has not, until now, been controversial or faced any fundamental court challenges in the 22 years of its existence at the federal or state levels.
Do individuals have the moral right to treat individuals differently due to their sexual orientation or gender identity if such treatment is based on religious reasons?
I don’t think there is any theological basis for moral discrimination against people. But I do think there are strong moral-theological reasons for discriminating against certain behaviors. For example, a refusal to participate in some activities may be necessary to avoid moral complicity with behaviors essentially proscribed by one’s religion—for instance, if I am asked to support a same-sex wedding by providing a service such as a photography or baking. But notice that even this doesn’t amount to discriminating on the basis of a person’s sexual orientation so much as it discriminates against the action of performing a same-sex wedding or, more specifically, the lifestyle choices that such a ceremony celebrates and even religiously enshrines. Keep in mind that when performed by a minister in a church context such weddings are religious ceremonies. So to insist that any person, such as a baker or photographer, lend their professional support to this sort of religious ceremony is essentially to insist that they embrace or approve of a particular religious practice. So, ironically, in such contexts the RFRA actually protects people from religion or certain religious practices.
Should we be concerned about the manner in which the Indiana government responded to social pressure, ultimately amending the bill in the wake of serious backlash from national business? Isn’t this undemocratic?
Some say it amounts to public blackmail. I would say that, generally speaking, the freedom to exert such pressures is part of the democratic process. But that doesn’t mean they are always reasonable or coherent. In this case, there are reasons to think it is arbitrary, because so many states and the federal government have similar laws, and hypocritical, because so many business leaders who have protested already do business in states that have such laws.
Is the ability of large businesses to effect such change a dangerous precedent regarding freedom of expression in general?
I think the more dangerous precedent is how such hysteria and duplicitous public criticism of the RFRA has gone unchecked and critiqued by major media and journalistic groups.
The ACLU has remarked that this legislation is a “solution in search of a problem” – Is there good reason for this legislation to exist in Indiana at this time?
I think so. The GLBT movement and its rhetoric has advanced to the point that those who even voice dissent on the morality of same-sex relations are demonized or ostracized without any discussion or debate. We’re approaching a state of dogma (again, about the moral issue) in the American cultural centers of power (federal government, state and local government, major media, public education, and entertainment industries) that would terrify and astound (the great proponent of liberty) John Stuart Mill, not to mention the U.S. founding fathers. Where there is public suppression of views, political oppression of people is never far away.
Today we seem to be moving toward a situation where public expression of the traditional Judeo-Christian view of marriage and sexuality are essentially censored (suppressed via public pressure), and this is creating by contrast a new form of heresy. If you don’t tow the line regarding the new progressive sexuality, then you are a moral heretic (never mind that your view has been affirmed by the overwhelming majority of scholars and ordinary folks in the East and West, both down through history and in most of the world today).