Someone sent me an e-mail about my post regarding some of the responses to the Indiana Religious Freedom Act. Here is the heart of my rather long-winded response to that e-mail, in which I attempt to broaden my thinking and explain what led to the blog post.
(For what it is worth, Indiana Bishop Mike Coyner has weighed in with this. I am mindful that his response does a much better job of acknowledging the rhetoric by supporters of the bill than I did in my post. My real concern — as expressed below — is that we in the church should not reject the idea that religious expression deserves a high level of government deference.)
In the course of writing about this on Facebook — where I started these conversations before I wrote the blog — I had someone show me the ACLU testimony before the General Assembly. I read that and looked up the cases they cited. I did this because I was looking for evidence that contradicted my understanding of how Indiana’s law would work in practice. And I was surprised to discover that the cases the ACLU cited demonstrated that RFRA laws do not open the door to discrimination. In each case, a person appealed to a religious justification but the court ruled that invalid because other interests were deemed more compelling. That is what I expect will happen in Indiana if anyone tries to use religion to justify discrimination. That has been the history. Is it possible that some court in some place will rule otherwise? Sure. It is possible I am wrong. But to call RFRA laws a license to discriminate just holds zero water with the history of American law. And to argue that the only reason for such laws is to sanction discrimination is — in my mind — a willful ignorance of the history of strict scrutiny since it was first adopted by the Supreme Ct. in 1963.
And so, I was distressed to read pastors and others shouting down the law.
Here is one way I’ve tried to explain my support of the law. In the case of free speech, I personally find pornography offensive and harmful. I think that on its face it is a moral evil and source of harm. But in our First Amendment law we have said that any attempt to infringe upon the content of speech has to pass a test of strict scrutiny. The government must show a compelling reason to curtail the speech and must show it is using the least restrictive means possible. I would like to get rid of pornography, but I can’t figure out any way to do that that does not open the door to all kinds of deeper government intrusion into free speech.
This is how I feel about strict scrutiny with regard to free expression of religion. Do I agree with every religious expression that will be protected by RFRA? No. But I support the principle that the government has to show compelling interest and the use of the least restrictive means possible when its laws or actions intrude in substantial ways on the exercise of religion. (If our objections to RFRA are that it protects religious ideas that we consider invalid, we are really saying we want our religious ideas to trump everyone else’s. It is like saying the only speech that should be allowed is speech I agree with.)
When I look at cases in which the law has been used to allow Muslim prisoners wear short beards despite prison regulations, to allow a Jewish congregation to meet in a city neighborhood that did not want them, to permit Christian groups to offer food to the homeless despite city ordinances, and so on, I am aware that it protects all faiths and has been an important counterweight when governments decide that people’s faith should be free so long as it does not bump up against other stuff the government deems important.
I find it particularly odd for pastors in Lent — where we have been urging people to live more deeply and fully in tune with Christ’s example — to then shout down a law that affords lay people some level of defense when and if that discipleship conflicts with a civil law. It is not a trump card, mind you, just a defense to be weighed in the balance. …
I remember a couple years ago when the Affordable Care Act was going through Congress. I recall how people on the right were screaming about how it would be the end of America and people on the left were promising that it would provide health care for nearly all Americans. Both sides, it turns out, were wrong. The law has done some tangible good, but has not delivered on the promises of its supporters. It has caused some problems but not done anything like what its opponents claimed and feared it would do. But the hysteria was useful for people who wanted in the midst of the fight to gain political power and drum up big contributions from people. …
I just think pastors of all people should not be shouting down protections for religious expression, especially when the history of strict scrutiny since 1963 does not support the [worst] fears behind the shouts.
See how each of the princes of Israel who are in you uses his power to shed blood. In you they have treated father and mother with contempt; in you they have oppressed the foreigner and mistreated the fatherless and the widow. You have despised my holy things and desecrated my Sabbaths. In you are slanderers who are bent on shedding blood; in you are those who eat at the mountain shrines and commit lewd acts. In you are those who dishonor their father’s bed; in you are those who violate women during their period, when they are ceremonially unclean. In you one man commits a detestable offense with his neighbor’s wife, another shamefully defiles his daughter-in-law, and another violates his sister, his own father’s daughter. In you are people who accept bribes to shed blood; you take interest and make a profit from the poor. You extort unjust gain from your neighbors. And you have forgotten me, declares the Sovereign Lord. (Ezekiel 22:6-12)
I was reading Ezekiel last night. Chapter 22 grabbed my attention in more than one way. In the latter part of the chapter when it talks about God’s wrath refining Israel like silver, I thought of John the Baptist and Jesus. I wonder if they had this chapter in mind when they preached.
But it is the quote above that opened up a question I wanted to share with you.
In the passage above, God lays out a list of offenses including things we divide into different categories. Some are things we might call concerns with purity — ritual or personal — and some are things we might call justice issues.
Jesus does the same in his preaching. The Apostles do as well.
It seems like we tend to separate these things. You find churches where the emphasis falls almost entirely on the need for us to purify our hearts and conduct. You find other churches where the emphasis falls almost exclusively on care for the poor and vulnerable.
Righteousness in the Bible strikes me as involving both things.
How do we hold these two things together and so honor God?
The dominant non-religious attitude in America toward sex is something like the attitude Americans have toward commercial transactions. So long as both parties are fully informed about what they are doing and agree of their free will, whatever they want to do is fine with most people.
The standard is the same whether you are standing in a pawn shop or cruising Tinder looking for a hook up.
Because this is the American attitude toward sex, it makes much of what the church says seem silly or reactionary or bigoted. What does God care if two people — or more — enter into a sexual encounter with open eyes?
That is the question.
And the problem is that it is impossible to answer without back-tracking pretty seriously.
You see, Christians historically have not accepted the idea that we own our bodies. We are created by God and redeemed by Christ. Our body — like everything else — is placed at our disposal for a span of time, but belongs to God. So, the notion that we can do whatever we feel like with it is a bit like the teenager who trashes his parent’s house when they leave town over the weekend. He was left in charge of the house, but he was not given license to do whatever he wanted.
Paul gets at this to a degree in 1 Corinthians 6:19-20:
Do you not know that your bodies are temples of the Holy Spirit, who is in you, whom you have received from God? You are not your own; you were bought at a price. Therefore honor God with your bodies.
This idea that our bodies are temples of the Holy Spirit gets into another issue.
Some people will ask why anyone should care about what another person does so long as “no one gets hurt.” The problem for Christians is that sin hurts someone. It hurts the sinner. It profanes the temple of the Holy Spirit.
By the time we go back this far, of course, we’ve totally lost non-Christian conversation partners. It is nonsense and foolishness to them. In truth, it is nonsense and foolishness to a lot of Christians because we have largely adopted the secular attitude about our own bodies.
I’m not sure how to combat this within the church. How do you get to the point where those of us who follow Jesus and read the Bible can see the way a biblical view of who we are is at odds with the commercial view? The commercial view gets so much more time to make its case, and has spent a lot more time crafting its message and delivery. I’m not sure how we get heard, even inside our own sanctuaries.
The state of Indiana has been in the news recently over a law passed by our General Assembly and signed by our governor. The Religious Freedom Restoration Act was passed largely on a party-line vote and has provoked outrage near and far. It has been called a license to discriminate, and people have suggested that the law will give the green light to businesses and individuals who want to turn away gay and lesbian customers.
Indeed, some of the supporters of the law hope it will do just that.
But whatever the hopes of such people, the law does nothing of the sort. The law says that the government cannot burden the free expression of religion without showing a compelling government interest in the action that burdens religious expression and showing that the act in question is the least restrictive means available to advance that interest.
(It is worth noting that prior to a 1990 reversal written by conservative Justice Scalia and decried by liberal justices Blackmun, Brennan, and Marshall, the standard in the new Indiana law was the standard advocated by the United States Supreme Court.)
The Indiana law does not allow discrimination. I suspect that even some of its opponents are aware of that.
When the law was being debated, the Indiana American Civil Liberties Union testified against it, warning of the harms the law would cause. It listed a series of court cases in which people made an appeal to religious belief to defend themselves against various charges. At the top of its list it cited the case of an Oklahoma police officer who said it violated his religious beliefs to be asked to attend or assign someone else to attend a community relations event at a mosque. It listed some other cases as well, but of those cases, the ones I could find online did not occur in a state covered by a religious freedom law like the one passed in Indiana. The case of the Oklahoma police officer made specific mention of the state’s religious freedom law.
In its testimony, the ACLU points to the fact the police officer asserted that his religious views shielded him from sanction for refusing to attend the event at the mosque. Tellingly, the ACLU did not mention whether he prevailed in that case, although the lawyers at the ACLU surely knew the answer.
And what was the outcome of the case? Did an appeal to religious belief give this officer a license to discriminate?
The U.S. Court of Appeals said the claim in this case had no merit. Freedom of religion is not freedom to discriminate, even when the law protects freedom of religion. The same can be said for another case the ACLU cited in its testimony. In that ruling as well, a court rejected the claim that free exercise of religion was a defense of discrimination, which was in this case against gays and lesbians.
Far from proving the point that laws honoring religious freedom are one step on the road to theocracy, the cases in the ACLU’s own testimony show that courts can and do discern reasonable from unreasonable claims of religious protection. And these cases were in Oklahoma and Georgia, places more likely than some to give added deference to Christian claims of religious freedom.
I’ve asked around and have not found anyone who could offer a single case that supports the claims that religious freedom is a license to discriminate. As far as I can tell, no one has used a religious freedom law to successfully defend discrimination since the passage of the federal Religious Freedom Restoration Act in 1993. If I am wrong, please point it out.
Even if some supporters of the law hope it will allow discrimination, the legal history suggests otherwise. For a good analysis on this point, see this article by the Religion News Service. In the article, the author notes that religious beliefs have not been seen as grounds for discrimination in other cases.
As the Court made clear when it banned anti-miscegenation laws in Loving v. Virginia (1967), the government has a compelling interest in prohibiting racial discrimination with respect to marriage. And the least restrictive means of prohibiting it is, simply, not to permit religious exceptions to laws banning racial discrimination in matters related to marriage. So even though it was once common to cite Scripture as the basis for opposing “race mixing,” the courts won’t give florists, bakers etc. the religious right to refuse their services to mixed-race couples. (See Bob Jones University v. United States .)
The appellate decision declaring Indiana’s ban on same-sex marriage unconstitutional did so on exactly the same grounds as Loving — that it violates the 14th Amendment’s guarantee of equal protection. Across the country, almost all federal courts have come to the same conclusion. If the Supreme Court goes ahead and, as expected, does likewise, there will be no basis for differentiating same sex-couples from mixed-race couples, when it comes to religious exemptions.
So, why are such laws needed?
Let me turn one last time to the ACLU for my answer to that. At the very end of its testimony about the Indiana law, the ACLU raises the specter of interminable lawsuits and huge legal costs being incurred by governments and business if Indiana passed the law. The ACLU makes a passing reference to a case in Dallas that has gone on for 7 years.
Now, that is a grim thought. Years and years of legal battles by those claiming religious convictions trump local laws.
Do you know what that case in Dallas was about?
It was a pair of Christian ministries that wanted to feed the homeless but were prevented by a local ordinance that outlawed providing food to the hungry in most public places. The Christian ministries felt compelled by their faith to feed the hungry. The city of Dallas said they could not and fought for several years in court to stop them from doing so. Citing a Texas freedom of religion law adopted in 1999, the courts sided with the ministries.
This is the terrible plague of religious fanaticism that the ACLU feared in its testimony before the General Assembly – churches feeding the homeless.
Here is the face of the menace that laws like the one Indiana passed permit:
I hope the Indiana law bears similar fruit.
As I’ve read the response to the passage of the law, I’ve been perplexed by the reaction, and troubled by the comments of United Methodists and other Christians who have decried the law without — so far as I can tell — reading it or educating themselves about the actual consequences of such laws.
From what I can tell, a large part of the protest against the law is based on the fact that it is supported by Christians whom the protesters do not like. In logic this is sometimes called the genetic fallacy. Conservative evangelicals and the Roman Catholic Church support the bill, people seem to be reasoning, so it must be bad.
Such points of view are understandable — sad but understandable — coming from people who don’t believe religious convictions should be given deference by the government or who despise faith altogether. In our increasingly post-Christian culture, the church should anticipate more and more people will dismiss the very notion of protection of religious expression as a valid public policy.
But we in the church should not be jumping on that bandwagon because someone screams the phrase “license to discriminate.”
In a letter offered in support of the Indiana law, several law professors, including a constitutional law professor at Indiana University who supports same-sex marriage, said that the claim that religious freedom laws lead to discrimination is a myth. The authors could find no case in the United States in the last 30 years in which someone discriminated on the basis of sexual orientation and successfully defended those actions by appealing to religion. The letter goes on to describe what the authors anticipate would be the application of the Indiana law:
Most RFRA cases, of course, do not involve anti-discrimination laws or disputes that arise between private parties. Rather, they involve disputes between the government and a religious individual or group. In a case just decided under the federal RFRA standard, for example, a unanimous Supreme Court protected the right of a Muslim prisoner to practice his faith by wearing a half-inch beard that posed no risk to prison security. See Holt v. Hobbs, 135 S. Ct. 853 (2015). Like the federal RFRA, the Indiana RFRA will be available to members of all faiths. It might be invoked by Old Order Amish, for example, to request that they be exempted from having their photographs on state identification cards, or to request accommodation from traffic regulations that unnecessarily impair their religiously based reliance on horse-drawn buggies. Or by Christian or Jewish students seeking accommodation by public schools for their observation of Good Friday or Yom Kippur. Or in a variety of other circumstances that might arise in the future but that are difficult to anticipate in advance. General protection for religious liberty is important precisely because it is impossible to legislate in advance for all the ways in which government might burden the free exercise of religion.
It is my hope that United Methodists in Indiana and other states would not join the chorus protesting such laws but instead embrace them. There are Christians all over the world today who suffer under regimes that do not grant them freedom to exercise their religion. We should embrace and uphold that precious freedom here.