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).
Jim–I think the reaction to RFRA in Indiana was appalling and the characterization of the issue in news stories and columns ranged from inadequate (by not pointing out that all the cases in which service was denied had to do with weddings, even when the same proprietors had rendered other services to the plaintiffs without incident) to biased (by dismissing out of hand the substance of the religious freedom claim). However it is also clear that Indiana’s RFRA law was a conscious effort to protect religious freedom in the face of the emergent establishment of “marriage equality” as a right. The federal RFRA law of 1993 was more limited in that it was passed to protect a religious practice against government action and not as a means to protect individuals from compliance with another right increasingly established as protected under the 14th Amendment. I do think RFRA is appropriately interpreted to protect refusal of a business to participate in a gay wedding, for, as you point out, it only gives the defendant standing to have the particular case adjudicated. That is why Gov. Pence refused to say it was an effort to make refusal of service ipso facto legal. Unfortunately, the advocates of the law should have anticipated the difficulty of making this argument in the present climate. It would have been better to acknowledge that Indiana’s RFRA was in fact an effort to protect religious freedom in response to the legalization of gay marriage, though the RFRA principle serves religious freedom more broadly than just in response to gay rights.
In this situation it seems clear that LA Governor Bobby Jindal’s proposal for “Marriage and Conscience Act” is the best response to the need to protect people from being forced to participate in gay marriage celebrations. It might even coexist better with a non-discrimination act that included sexual identity than a RFRA would.
However, this would make no difference to the juggernaut that insists that there is no legitimate restriction on gay rights on the basis of religious freedom, since it defines religious freedom very narrowly as the actions of clergy and actual religious ceremonies. (BTW, though I think there is even more reason for an orthodox Christian photographer to work a gay wedding than for a baker not to make a cake for the reception, the photographer is not really part of the wedding ceremony.)
David Blankenhorn is an advocate for “traditional marriage” who in the face of the growing advocacy and acceptance of gay marriage decided no longer to oppose the latter (while still upholding the former as best). As part of an effort to find common ground Blankenhorn joined with gay marriage advocate to establish the “Marriage Opportunity Council” (see http://www.nytimes.com/2015/04/23/opinion/bobby-jindal-im-holding-firm-against-gay-marriage.html). If gay marriage advocates honored the intentions of this effort to promote tolerance, there would be no real threat to religious freedom. (I still think gay marriage is bad public policy, but it would not have to threaten religious freedom as it increasingly does.) But Blankenhorn’s efforts are being overtaken by events, as seen in the reaction to Indiana’s RFRA. If gay marriage is established as a constitutional right that trumps religious freedom, discrimination against individuals and institutions which do not affirm gay marriage will only increase. Rod Dreher, who blogs for “The American Conservative,” is a keen observer of the situation. See, for example, his recent posting about the remarks of embattled Gordon College President Michael Lindsay about the kind of pressure Gordon has been under:
Thanks, Steve. Good analysis and helpful links. But I was confused by your distinction between bakers and photographers regarding their levels of involvement in a wedding ceremony.
I think that there is more going on than what you stated. It seems to me that people today are wanting to change the source of morality from God to society. In doing so, though, they violate that principle by imposing their version of morality on other societies. If society determines morality then how can we oppose ISIS or Al-Qaeda, or even the holocaust? It seems pretty arrogant of us as a society to say that our moral code is the one that all societies must embrace.
I think bakers or anyone else asked to contribute to a gay marriage celebration ought to have the right to refuse on grounds of conscience, but arguably a cake can be made offsite and served by someone else, while a photographer (or an MC at a reception) are more directly involved in the celebration. But that’s a distinction that is meaningful only to those making a prudential moral decision. The opponents of RFRA reject ANY allowance for conscientious objection in this matter.
I think I would like to hear more about the point of a person’s general right to their own labor in all this.