\n\tUntil recently few people had heard of the Religious Freedom Restoration Act or could even pronounce its acronym, RFRA (Riff-ra), even though there\u2019s a
\n\tfederal version of the law and 20 states have passed their own versions. Is it a \u201clicense to discriminate,\u201d as liberals claim, or a \u201cprotection of
\n\treligious freedom,\u201d as conservatives claim?\n\t<\/p>\n
\n\tIn fact, it\u2019s both.\n\t<\/p>\n
\n\tThere are three sources for Indiana\u2019s RFRA: the religious exemptions movement, the RFRA\u2019s own history, and, most recently, the Hobby Lobby case. First, the
\n\tidea of religious exemptions to civil rights laws is as old as civil rights laws themselves. In the 1970s, for example, conservative Christian
\n\torganizations demanded exemptions to the Civil Rights Act and similar laws. The most famous of these was Bob Jones University, which maintained race-based
\n\tadmissions and housing policies all the way into the 1990s. The Supreme Court dealt these organizations a blow, however, when it upheld an IRS decision to
\n\tstrip Bob Jones of tax-exempt status.\n\t<\/p>\n
\n\tReligious exemptions are also widespread in the area of reproductive health. Doctors, nurses, and even entire hospitals are routinely exempt from having to
\n\tperform or assist in abortions. These exemptions are now being extended to pharmacists not wishing to dispense contraceptives—and, most famously, to
\n\tcorporations not wanting to pay for insurance coverage for them.\n\t<\/p>\n
\n\tSuch exemptions are always a matter of scope. Nearly everyone would agree, for example, that a priest should be exempt from civil rights laws; he should
\n\tnot have to solemnize a same-sex wedding or an interreligious one, if doing so is against his religious belief.\n\t<\/p>\n
\n\tBut what about a public pavilion owned by a church that advertises itself as available for rent? Or how about a privately owned hotel not wanting to rent a
\n\troom to a gay couple? These are all actual cases, and they point out how religious exemptions are a matter of degree.\n\t<\/p>\n
\n\tThe second root of Indiana\u2019s crisis is the RFRA itself. In 1993 the federal RFRA was passed in response to a Supreme Court case that found Native Americans
\n\tguilty of drug laws for having ingested peyote. This seemed like the wrong result to a wide variety of people, and so when the RFRA passed, it was nearly
\n\tunanimous—supported as much by Democrats as Republicans.\n\t<\/p>\n
\n\tWhat the RFRA did—in the federal and later in state versions—was change the way courts interpreted competing rights claims. It replaced the balancing test
\n\tthat the Supreme Court had used in the Native American case with a much more exacting standard, requiring a \u201ccompelling state interest\u201d justifying a ban on
\n\treligious practice, an action \u201cnarrowly tailored\u201d to that interest, and the \u201cleast restrictive\u201d means of pursuing it.\n\t<\/p>\n
\n\tThis is a very high standard, and it\u2019s meant to block all but a few government actions.\n\t<\/p>\n
\n\tUntil the past few years, though, RFRA cases were victimless. No one is personally affected if a Native American uses peyote, a military officer wishes to
\n\twear a yarmulke, or a church seeks a zoning variance. None of these carried what lawyers call \u201cthird-party harms.\u201d\n\t<\/p>\n
\n\tThat all changed in the 2000s, as conservative activists began using the RFRA in a new way: as a sword, rather than a shield. Now, they argued, my
\n\treligious belief should trump your civil rights. Gays and lesbians may see the florist\u2019s refusal as discrimination, but she sees it as freedom of religion.
\n\tThese two streams—religious exemptions and the RFRA—converged in the Hobby Lobby case, decided last year.\n\t<\/p>\n
\n\tIn that case the Supreme Court decided, for the first time, that RFRA could be sword as well as shield. A corporation could deny someone their legal rights
\n\tand then claim religious freedom as a defense.\n\t<\/p>\n
\n\tThat was a game changer. With the Court\u2019s imprimatur, a host of lawsuits were filed around the country using the RFRA to defend against claims of
\n\tdiscrimination. Those lawsuits are still ongoing.\n\t<\/p>\n
\n\tWhich brings us to Indiana. Yes, as Governor Mike Pence has said many times, 19 other states also have RFRAs. But Indiana is only the second state, after
\n\tMississippi, to pass one in the new, post-Hobby Lobby reality.\n\t<\/p>\n
\n\tArizona\u2019s governor vetoed that state\u2019s version, Oklahoma dropped its; and Georgia and Texas appear poised to reject their versions. Late Tuesday afternoon
\n\t(March 31, 2015), though, Arkansas passed its own RFRA measure, which will now go to Governor Asa Hutchinson for his signature or veto.\n\t<\/p>\n
\n\tNow, is Pence right that this law is just about protecting religious freedom? Or are his opponents right that it\u2019s about legalizing discrimination?\n\t<\/p>\n
\n\tBoth are—but the opponents more so.\n\t<\/p>\n
\n\tOn the surface, Pence is correct. The law prohibits government restriction of religious exercise without a compelling state interest.\n\t<\/p>\n
\n\tIn reality, though, this law and others like it have been advanced by social conservatives who repeatedly give examples about LGBT people: a photographer
\n\tin New Mexico found guilty of civil rights laws for turning a gay couple away, a baker in Colorado, a florist in Washington, that church-owned pavilion in
\n\tNew Jersey. These are all actual, not hypothetical, cases.\n\t<\/p>\n
\n\tAnd how you see them depends on whose perspective you want to take. The plaintiffs are generally sincere; that New Mexico photographer really felt that her
\n\treligion forbade her from \u201cparticipating in\u201d a same-sex wedding. How can the government force her to violate her conscience?\n\t<\/p>\n
\n\tThen again, from the perspective of the customers she turned away, the sting of discrimination is real. And what kind of message would it send, allowing
\n\t\u201cNo Gays Allowed\u201d signs to be posted around town? And why wouldn\u2019t the same logic apply to Jews, African Americans, women—anyone, really?\n\t<\/p>\n
\n\tOne resolution to this conflict might be to remember that corporations have to play by the rules of the marketplace. This is not what the Supreme Court
\n\tsaid in Hobby Lobby, but it might help the photographer who feels sincerely torn. Render unto Caesar what is Caesar\u2019s, the Bible says—anti-discrimination
\n\tlaw included.\n\t<\/p>\n
\n\tMoreover, taking pictures does not make one complicit in the marital act. Just as you\u2019re not responsible if your client turns out to be a thief, you\u2019re not
\n\tresponsible if your client turns out to be a \u201csodomite\u201d or sinner of any other kind.\n\t<\/p>\n
\n\tReally, though, the Indiana case is about politics, not religious philosophy. Pence is an ambitious politician, and he gave his conservative backers what
\n\tthey wanted. Now it all may backfire. Seventy-five percent of Americans oppose discrimination against LGBT people, even though only 55 percent support
\n\tsame-sex marriage. Moreover, while America remains a uniquely religious nation, it also respects the rule of law. And letting people discriminate because
\n\tof religion is not what the rule of law is about.\n\t<\/p>\n","protected":false},"excerpt":{"rendered":"
Until recently few people had heard of the Religious Freedom Restoration Act or could even pronounce its acronym, RFRA (Riff-ra), even though there\u2019s a federal version of the law and 20 states have passed their own versions. Is it a \u201clicense to discriminate,\u201d as liberals claim, or a \u201cprotection of religious freedom,\u201d as conservatives claim?<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[307],"tags":[139],"class_list":["post-6318","post","type-post","status-publish","format-standard","hentry","category-july-august-2015","tag-july-august-2015"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6318","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6318"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6318\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6318"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6318"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6318"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}