My last word on #RFRA

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.

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6 thoughts on “My last word on #RFRA

  1. Thanks John. I followed your request in your previous post to research the law and realized a lot of what I read was wrong. My big concern comes from Gov. Pence’s interview with George Stephanopoulos. The governor repeatedly said the law is only about government infringing on individuals, but the law clearly includes language allowing the defense between private parties with no government party. I don’t understand why Gov. Pence continues to assert otherwise.

    1. Yeah, I don’t understand that either. I also don’t understand why some supporters are rallying support for this as if the purpose of the law is to do something that it won’t do. I think of other political battles, though, where people make inflated claims about laws or misrepresent them for various reasons.

  2. “Vos temporis, vox Dei” (the voice of the times is the voice of God). This was a fatuous notion of the Nazi era. That was before social media could launch a thousand crusades to stifle Christian witness.

  3. On the week that religious liberty was betrayed, all the Democrats and rights groups who had once voted for and supported strong religious liberty protections came and kissed religious liberty. They said, “While we once exalted you as the ‘First Freedom’ in the Bill of Rights and supported robust legal protections for you, we now no longer wish to defend you and we despise both the states and the constituency that seek strong protections for you.”

    They then took religious liberty before the academic, business, and media elites for a public relations trial. The elites accused religious liberty of inciting neighbors to hate each other and discriminate against each other and refuse service to oppressed minorities. However, religious liberty replied, “I am only a principle to which religious minorities appeal. Just as the right to free speech protects all kinds of speech, so will all kinds of people whose religious beliefs people find offensive come to me for protection.” Indeed, the elites accused religious liberty of associating and being appealed to by people they find disgusting. Religious liberty replied, “I am here for all religious minorities burdened by their conscience and government laws.” At this comment, the elites gnashed their teeth and tore their clothes. They then set about ridiculing and persecuting any who came to the defense of religious liberty.

    Since the elites could not undertake the crucifixion of religious liberty, they then took religious liberty to a political leader. The political leader asked religious liberty, “What is true religion?” But religious liberty declared, “I do not declare a true religion, I protect all religions.” The political leader said, “I find no evidence of prima facie discrimination with religious liberty or strong religious liberty protections.”

    The political leader then took religious liberty out to the crowd that had gathered. The crowd started chanting, “Crucify it! Crucify it!” The political leader said, “You realize that religious liberty and the prominent legal test supporting it does not automatically protect discrimination.” The crowd only yelled further, “Crucify it, crucify it.” The political leader again said, “You realize that the major legal test supporting religious liberty has actually not protected religiously-based racial discrimination.” The crowd only yelled louder, “Crucify it! Crucify it!” The political leader said, “You realize that strong religious liberty protections has safeguarded the freedom of all religious minorities such as Native Americans, Muslims, Jews, Adventists, and Jehovah’s Witnesses.” The crowd only yelled even louder, “Crucify it! Crucify it!”

    So the politicians gave religious liberty over to the crowd to be stripped and beaten. After being stripped and beaten, the elites, lawyers, and judges began the long, painful process of crucifying strong religious liberty protections in civil society, religious schools, religious organizations, and places of worship. They also sought out defenders of strong protections for religious liberty in every state and began persecuting them. As a result, other former supporters of religious liberty denied they ever knew of or defended strong protections for religious liberty. Others, fearing for the survival of their institutions, groups, or livelihood renounced any religious beliefs the elites found offensive, hid underground or were scattered.

    Through religious liberty’s long-suffering crucifixion, a young child named James Madison, heard religious liberty whisper, “Forgive them, for they know not what they do. (From http://www.theamericanconservative.com/dreher/the-eclipse-of-religious-liberty/ )

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