The hysteria over religious freedom

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?

No.

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 [1983].)

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.