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.