On the show yesterday, nearly every single question Greg was asked had something to do with Indiana’s Religious Freedom Restoration Act. This is the law (modeled after* Chuck Schumer’s bipartisan 22-year-old federal law) which states that the government “may substantially burden a person’s exercise of religion” only if doing so 1) “is in furtherance of a compelling governmental interest” and 2) “is the least restrictive means of furthering that compelling governmental interest.”
Perhaps that sounds nothing like what you’ve heard.
In Joe Carter’s explainer of RFRAs (see also his “7 (More) Essential Articles on Religious Freedom Restoration Acts”), he points out:
Currently, 19 states have a Religious Freedom Restoration Act (AL, CT, FL, ID, IN, IL, KS, KY, LA, MO, MS, NM, OK, PA, RI, SC, TN, TX, and VA). Ten other states have religious liberty protections that state courts have interpreted to provide a similar (strict scrutiny) level of protection (AK, MA, ME, MI, MN, MT, NC, OH, WA, and WI). With some exceptions (such as Mississippi), the state versions are almost exactly the same as the federal version.
One federal law and 19 state laws exist** (note that the same Connecticut currently calling for a boycott of Indiana is included on that list), and yet no one can point to a single instance where a RFRA was misused to create any of the Jim-Crow-type scenarios the media are warning us about. As John McCormack wrote:
[A] small number of conscientious objectors declining to participate commercially in same-sex weddings is quite different than the specter of Jim Crow for gay Americans—hotels and restaurants turning away gay people simply because they are gay.
The point of RFRA is not to discriminate against gay Americans. It is supposed to prevent the government from discriminating against religious Americans.
What’s happening now is hardly a reason for you to panic.
Unless you believe in freedom of religion.
Consider this comment by “Indrid Cold,” posted on a Wall Street Journal article:
The realities of being gay trump any “super friend man-in-the-sky” delusion. There is no circumstance of genuine damage that might occur were a business compelled to provide service to a gay customer. A business must, as a condition of being IN business, offer its product or service to all those willing to pay. If the proprietor refuses to do so, that business should be forced to close its doors. The space will be quickly filled by individuals who understand this simple business requirement.
Leaving aside this commenter’s misunderstanding of both the purpose of the law and the fact that the florists, photographers, and bakers have objected to participating in events they disagree with, not to serving people with a particular sexual orientation—leaving that aside, consider what this person is saying here: My religion (worldview) trumps all other religions. And because every other religion is a delusion, no harm comes to you when I make you go against your conscience and follow my religion...because I’m only making you do what the right religion says you should do. And obviously, since I’m right, making you do what I want you to do is right.
You know what that is? That’s the end of freedom of religion. Denny Burk writes:
In an essay posted this morning, [Rod Dreher] argues that the take-away from the Indiana RFRA is not the law itself, but the media “freak out” that happened in response. It reveals just how deep our nation’s indifference is to religious liberty and just how willing some of our elites are to stamp it out. And it won’t stop with RFRA’s. He says that churches that support traditional marriage will soon face attacks on their tax-exempt status. If you think this isn’t coming, you aren’t paying attention.
You’d think the following might occur to Indrid Cold: “Wait a minute...what if Christians forced my business to work on projects promoting Chrsitianity and man-woman-only marriage? What if saying no to them meant we’d be forced to close our doors? Maybe we should find a way to balance government coercion and sincerely-held convictions that will protect everybody.”
Or perhaps the governor of Connecticut might think: “I’m really grateful I’m free to not participate in the economy of a state that’s promoting ideas contrary to my sincerely-held beliefs—thank goodness no one can force me to do otherwise. Wait a minute...isn’t that what that florist in Washington was asking for? Maybe there’s a way for both of us to have our freedom and still achieve the government’s interests.”
I find the fact that this occurs to nobody on the other side to be more distressing than anything else because it indicates people are thinking according to agenda rather than principle. Principle-thinking says, “Since we don’t all have the same view, we should come up with a principle that balances government interest and freedom of religion—one we won’t mind living under if we find ourselves on the other side of the freedom dilemma someday.” Agenda-thinking says, “Let’s do whatever it takes to crush every viewpoint but ours (don’t worry—we’ll just stop them from doing the same to us if they ever try).”
It’s hard to imagine a society as large as ours remaining free for long without principled laws governing how to manage differences of deeply-held belief. Opponents of RFRAs seem shocked—shocked—by the fact that some citizens out there have beliefs different from their own. And in effect, they’re citing the very existence of these contrary beliefs as evidence RFRAs should be repealed. That is, “We know people exist who have the wrong beliefs, therefore we can’t have religious freedom laws because that might enable people to act on those beliefs.”
If you only support freedom of religion until you come up against religion you disagree with, you don’t support freedom of religion. The differences of belief don’t prove we should get rid of religious freedom laws, they prove our need for them. Why would we ever have needed a guarantee of freedom of religion in the Constitution if it weren’t the case that A) significantly different views exist, and B) human nature leads people to try to stamp out opposing views?
Here’s the bottom line: The kind of response we’re seeing from people who oppose Indiana’s RFRA proves just how much we need these laws if we’re to continue to function as a diverse society.
*A clarification from John McCormack: “Indiana’s RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)”
**Another bill in Arkansas is waiting to be signed.