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:

Source: Dallas Morning News

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.

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19 thoughts on “The hysteria over religious freedom

  1. You are a great rapporteur, john! I admire coverage that is courageous, salient, deftly written, and a brisk read.

  2. “Conservative evangelicals and the Roman Catholic Church support the bill, people seem to be reasoning, so it must be bad.”

    And thus these people practice the same discrimination they claim to be against. That is called hypocrisy. It seems that discrimination is okay if it’s against conservative Christians.

    Furthermore, I have yet to see a shred of concrete proof of one instance in which a conservative Christian discriminated against a person who is homosexual.

    No, Westboro Baptist doesn’t count. Even if they did they would be a rare exception to the rule.

    And disagreement is not discrimination. Otherwise everyone who disagrees, on any side or sides of any argument or issue, is discriminating.

      1. I saw that. Pizza owner said they would serve anyone who wanted to buy a pizza, but they would not cater a gay wedding. I get that you find this objectionable, but notice a few things. 1) Walkerton, Ind., does not have an anti-discrimination ordiance, so they are not breaking a law to begin with, which means RFRA has no impact on this example. 2) If Walkerton had such an ordinance and they refused pizza for a gay wedding and got sued and invoked a religious defense, then we would find out if the law gives them cover for that. My contention is that it would not based on my understanding of how these cases have been handled in other places.

      2. Sorry. I got your reply on a feed that does not show who you were replying to. I agree there are cases where people have and will cite their beliefs in refusing to participate in gay weddings. There was a cake shop in Indy a year or two ago that went out of business after it refused service for a wedding.

        I’m not arguing no one will ever say they won’t participate in a gay wedding. I’m just saying the law is not a “license to discriminate.”

      3. Where does it say these business owners were conservative Christians, or Christians of any kind?

        1. Victor, they are. They said they would serve anyone who walked in the door to buy a pizza, but would not provide pizza for a hypothetical gay wedding reception because it conflicts with their faith.

          Most of the media coverage has dropped the distinction they tried to make. The stories also don’t mention that RFRA has nothing to do with this hypothetical because there is no law that covers Walkerton that makes it illegal to refuse to cater a gay wedding. You don’t need a religious defense when you have broken no laws.

          There are Christian business owners who would refuse to take part in a gay wedding. If they were ever sued, they could try to use RFRA to defend. In other states, such claims have not been successful.

          In the meantime, this pixza joint in population 2,000 Walkerton had become the target of national scorn and subject to one arson threat because they said their understanding of God conflicts with participating in a gay wedding.

  3. To call feeding the homeless the “face” of this law is either grossly dishonest or grossly myopic. This law exists in 19 other states, so there is precedent for how this particular law came about. I do not have to read every word of the law to know what it’s about because it exists in other places.

    Furthermore, the letters of laws can mask their true intent. In my home state of West Virginia, there was an anti-anti-discrimination bill masked as a commerce bill, which sought to overturn anti-discrimination laws that local municipalities had already passed. Luckily the truth was understood and the bill died on the floor.

    FInally, is there any religious freedom that needed to be “restored” by this law? Are you somehow forbidden for worshiping? Are you forbidden from giving money? Are you actually forbidden from feeding the homeless? So what freedom has been taken that you want restored? Only the freedom to ban others’ marriages! The discrimination is bad enough, but the dishonesty about this is doubly appalling.

    1. The name, of course, comes from the original 1993 law that passed in response to the Smith case in 1990. I understand the critique about the motives of the law, but even its opponents agree that discrimination has never been the actual application of the law. The actual results of these laws have been feeding ministries winning cases, Jewish congregations winning rights, Muslims winning rights, Sikhs winning cases, and so on. The most recent face of RFRA is a Muslim prisoner who was ordered to shave off his beard but won the right to keep a short beard because of his religious convictions. http://www.supremecourt.gov/opinions/14pdf/13-6827_5h26.pdf

  4. CEGR76, next questions:

    How is it discrimination for private business owners to refuse to participate in gay weddings? And how is it not discrimination to force private business owners to do something that is against their religious beliefs?

    Discrimination and intolerance can flow both ways. But it seems to me that forcing people to do something against their beliefs or convictions is much more discriminatory than making a business decision based on those beliefs or convictions. The business owners are not forcing homosexuals to do anything, they can have any number of businesses cater their “weddings”.

  5. John,

    Now that I know these business owners are Christians, I still don’t think they are being discriminatory. They are making a business decision based on their beliefs, and forcing them to do otherwise is discrimination. They are not forcing homosexuals to do anything, as they can go to any number of other businesses to have their “weddings” catered.

    What you say about the media just reminds me of why I don’t take them seriously. They like to make news not report it, and obviously they are doing a good job of it in this case. The real shame of it is that people who call themselves Christians are joining in on this feeding frenzy.

    1. It is a handicap of being a pastor that I don’t know what it is like to face the choice these business owners will face. I’ve tried to think how I would counsel someone in that spot where their convictions are illegal. Is it an opportunity to bear witness by serving or is the more powerful witness to suffer? After remembering last night that Jesus washed the feet of Judas, I’m inclined this morning to encourage service. Can you do it without causing harm to another or yourself? Is providing food doing good to your fellow creatures? These are some questions I am pondering from a pastoral point of view.

      1. John, I hear you. I was a pastor for 21 years before going on medical leave. As a pastor, I think I would discuss possible responses and implications with the business owners, but I don’t know if I would encourage “service” or “suffering”. What I would do is encourage them to pray and follow God’s guidance as best they could.

        You do have me thinking about this now, though I may never pastor a church again, and will probably never be a business owner either. It could be a good witness to serve as well as to not serve and suffer.

        But either way, I don’t think they government should have the right to impose a choice on a private business, because that is their business. However, with abortion on demand for example, I know we have unjust and even evil laws in this country. I expect no different because our nation is not Christian, and our government certainly is not Christian.

        Having said that, I think it is discriminatory for people who call themselves Christians to try to force and bully Christians into making a choice that is against their understanding of Scripture.

        1. I agree, Victor, but I know that folks would argue on the other side of the internal church debate about gay marriage that all they are doing is trying to live in harmony with their understanding of Scripture. I think we all agree that no one should bully, but it can be hard to tell where conscience and discipline overlap or conflict with each other.

  6. John, we may all agree in word that no one should bully, but in practice I have been verbally bullied quite a bit by Bible revisionists who seem to think that I and the rest of Christianity not only should but must live in harmony with their “understanding” of Scripture, which most often means they ignore the Scriptures or just brush them off as outdated. Rarely have I heard an actual “interpretation” from a Bible revisionist, which perhaps means they are not really revisionists at all. In any case, I have had all kinds of personal attacks launched at me online, been called all kinds of names, and I’m talking about by people who claim to be Christians. Rarely do I have such problems with for example atheists, with whom I have had a number of interesting conversations about a variety of topics.

    I strongly believe in Biblical church discipline, and I believe that if we had been exercising all along, as earlier Methodists did, we would not be in the mess we are in now.

    But name calling and personal attacks crosses the line into bullying.

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