The Debate Behind the Debate

 

The debate over Indiana’s version of the Religious Freedom Restoration Act has already taken some curious twists and turns. The initial response from opponents was to go to the playbook that has been so wildly successful over the past five years: label the law as “hate,” condemn its proponents, and invent wild scenarios that conjure Nazi-esque horrors.

RFRAMapExcept something was different this time. The law’s critics — probably overconfident because of their long winning streak — got a little sloppy. Their blanket condemnations were met on this occasion by some defiant, salient points from the other side. Namely, that numerous other states and the federal government have had similar laws for years, and, yet, somehow, those jurisdictions have avoided the descent into Jim-Crow-esque regimes promised as a certainty by opponents.

Faced with these inconvenient facts, RFRA critics have chosen two paths. One, taken by those like Apple’s Tim Cook, has been to ignore the realities of the application and history of these laws, and simply to continue to drum up opposition. Even politicians are not immune to this phenomenon. Now-Senator Chuck Schumer sponsored the original RFRA bill as a member of Congress, but condemned Indiana’s version this week.  Governor Dan Malloy of Connecticut issued a ban on state-funded travel to Indiana over the RFRA, but his own state actually has a RFRA with broader language in some respects than Indiana’s legislation.

The second path has been to distinguish the Indiana law from other RFRAs because of some slightly different procedural points that permit its use as a defense in actions between private parties, rather than simply those where the state is a party. As noted by the Washington Post, this is a somewhat inconsequential distinction. However, critics have to highlight this difference to avoid an embarrassing situation in which many “good” states have this law, and where, for example, people like Barack Obama (as a state legislator) voted for these measures.

The reality is that if someone opposes the Indiana RFRA on the grounds that it might someday allow a court to find a conservative Christian may be able to decline to service a gay wedding, then that opposition should extend to some of the other RFRAs as well.

All these laws do, in fact, is plug a hole created by Employment Division v. Smith, a 1990 Supreme Court case which (briefly) held that laws of general applicability need not receive the highest level of scrutiny used in certain other First Amendment cases. The idea is that a general law that happens to conflict with particular practices of a religion has a lower constitutional hurdle to clear than a law that specifically impacts religious practices.

RFRA was an attempt to elevate such cases to the same strict-scrutiny standard that applies in cases involving direct infringement upon the free exercise of religion. That standard doesn’t mean that the plaintiff always wins, it means that the government must prove that it is advancing a compelling state interest in order to justify its alleged infringement on religious exercise.

A later case, Boerne v. Flores, held that the federal RFRA could not be used in state-level cases. That decision prompted a long list of states to adopt their own versions of the RFRA over the next several years. The laws have been used in a variety of contexts to protect religious objectors who seek to be absolved from following certain laws that clash with their religious beliefs, such as a ban on facial hair in a prison or regulations pertaining to wheeled conveyances that are in conflict with Amish religious and cultural traditions.

The Mother Jones and Gawker crowds would have you believe the RFRA is something close to apocalyptic, but a decade or two of actual experience with these laws strongly suggests otherwise.

So, what’s really going on here?

This is part of a bigger cultural shift—one I’ve discussed in the past.

In a piece about Tim Tebow (remember him?!?) a few years ago, I wrote:

Religion and sexuality gradually swapped places in American culture over the last fifty years in one important respect. We (or some of us) collectively made a decision that sexuality, not religion, could be on display proudly, while religion, not sexuality, was unseemly and needed to stay hidden to prevent upsetting the sensibilities of those it offended.

Religion is now considered by many to be an uncomfortable or inappropriate topic for any public presentation, except in specific, designated places devoid of non-believers. The same progressive thinkers who oppose someone exposing his religion to those who might be offended would be first in line to defend public expression of sexuality that might offend others.

The even larger point that emanates from the above is that sexuality is held as more sacred than religion by an increasingly sizable portion of our population, particularly among younger people.

This is hugely important. If there’s nothing “special” about religious beliefs, then it carries no weight to say that you cannot in good conscience do X because of those beliefs. From a purely secular standpoint, religion cannot be used by someone as a magical way of making other laws not apply to him.

This is why something like RFRA can seem ridiculous to contemporary critics. Conservatives and liberals alike saw merit in such laws a few years ago, when the perception was that everyone from Evangelicals to the Amish to Muslims to Native Americans to atheists would be protected from laws that forced them to engage in activities that conflicted with their religious consciences, so long as the laws were not part of advancing a compelling government interest (for example, a law forbidding murder could never have a religious exemption, because preventing the death of its citizens at the hand of another is the very definition of a compelling state interest).

Now, however, sexuality trumps. If a law allows even the possibility that religious beliefs might lead someone to fail to celebrate someone else’s sexuality, then the laws are deemed “hate.” Sexuality is sacrosanct.

Many on the Right are perplexed by this turn of events. Their position is, “Is it really so terrible that a particular photographer, for example, be allowed not to have to photograph an event that goes against his religious conscience? Particularly when there are other photographers who are willing to provide this service?”

For the Left, the issue is framed as, “A refusal to provide this service is discrimination, and discrimination is bad. End of discussion. You don’t get to discriminate because you can say some magic words that put your beliefs into a special category.”

The gap between these two positions isn’t as far as one might believe. The entire difference in the calculus is the weight given to religious beliefs in a public setting.

One side sees religion as something to be given the utmost reverence, particularly when the force of law is being used in a way that might conflict with it. The other side sees religion as, at best, something that is all fine and good behind closed doors or at a house of worship, but which is otherwise indistinguishable from any other belief system in the context of law or public life. At worst, religion is simply viewed as a cover for discrimination on the basis of something they see as more important—sexuality or sexual identity.

And that’s the debate behind this debate. The debate that we aren’t really having. Yet.

Namely, should religion continue to be something that receives special protection in the law, or should it only receive that protection when it doesn’t conflict with whatever the state holds out as its secular gospel?

Now that the Indiana RFRA discussion has shifted to its second stage, that’s where we’re headed.

There are certainly arguments to be made on both sides. This is a conversation that will take place repeatedly over the next couple of generations. The conversations will move in unexpected directions as the number of Americans who put little stock in the secular value of religious ideas reaches a critical mass.

It does occur to me that — in much the same way that free speech is meaningless if it only includes protection for inoffensive speech — protection for free exercise of religion is meaningless if it only includes “free exercise of religion that does not conflict with the preferences of the government.”

That’s the tension that’s truly at issue. The RFRAs, including this one, strike a pretty nice balance that has worked well for years: The law may force adherents to refrain from acting upon their religious beliefs in certain ways, but only if it has a compelling reason to do so and if the government uses the least-restrictive means to accomplish that goal.

For many people, that isn’t a satisfactory compromise. They require unanimity, compulsory or otherwise.

Should we embrace that version of society, though?

I always use the example of a strident atheist who thinks that circumcision is a barbaric practice based on a 2,000-year-old fairy tale. If that atheist happens to be a caterer, should he be compelled by force of law to cater a bris if asked to do so? Or, should he be permitted to refuse without fear of being sued out of existence?  And, if he did refuse, would we say that the law that permitted him to do so was anti-Jewish hate legislation?

It seems to me that the sane thing to do would be to draw a line between discriminating against customers and refusing to participate in an act, event, or message that has a religious or potentially religious component. For instance, if a person who happens to be Jewish asks the atheist caterer to cater a high-school graduation party and he refuses, I’m sympathetic to the idea that this blanket discrimination should be prohibited with the force of law (although a libertarian, which I’m not, might say that even that law should not exist — but that’s a discussion for another day). On the other hand, if he objects to catering a bris, I’m sympathetic to the notion that the atheist should not be compelled by force of law or fear of civil suit to service that event.

As an alternative to all of the above, we could return to where the law was in 1990 and say that laws of general applicability have a lower hurdle to clear. I could actually live with that, as it would at least be a consistent rule. That would mean Muslim prisoners would be forced to shave, no one would be allowed to ingest peyote, the Christian baker would be forced to bake a cake for a gay wedding, and the Sikh would have to surrender his kirpan.

It would also mean that Justice Scalia had it right the first time.

However, if we’re going to agree that religious beliefs still do carry special weight, even in public life, then we need to think about the issue differently. Compelling participation in events or endorsement of ideas in conflict with religious beliefs in the name of tolerance is not tolerance at all.

If we now reject that idea, ok—but we have a lot of repealing to do.

(This piece also published simultaneously at my blog, The Axis of Ego. I’m new here and thought this might be a fair way to “introduce” myself. Forgive the conlaw 101 explanations of the cases referenced below. I’m an attorney, but I write with a general audience in mind when I reference legal concepts and cases. Thanks!)

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  1. Herbert Woodbery Inactive
    Herbert Woodbery
    @Herbert

    Welcome Tom, enjoyed your well thought out post.

    • #1
  2. user_5186 Inactive
    user_5186
    @LarryKoler

    Welcome, Tom.
    Simply superb post. Thanks for taking the time.
    I am so struck by your notion that sexuality has swapped places on our culture with religion. Wow! this really seems to be true. After all what do we see today as sacred? Sexual identity oh, that’s so important. Weird world we are in.

    • #2
  3. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Here’s an excerpt from my personal favourite (so far) “alternative take” on RFRA laws, from S.E. Cupp:

    What no one in this debate seems to be disputing is the idea that more anti-discrimination laws — whether to protect religious freedom or homosexuals — are actually the solution to end discrimination.

    But that’s the real question we should be asking.

    The thought that, with reams of laws and regulations already on the books, the government can ban discrimination in the private sector through endless, redundant, poorly-worded and ill-conceived laws like the Indiana RFRA is not just wishful thinking — it’s dangerously naïve. Libertarians have long been skeptical of this notion, and have often suffered the price for resisting the ever-expanding scope of government control of private-sector practices.

    For raising questions about the Civil Rights Act, for example, former presidential candidate Barry Goldwater and future presidential candidate Rand Paul are called bigots. But while most people agree that the Civil Rights Act was important legislation, others rightly and bravely wonder: Where does it end?

    David E. Bernstein in an essay for CATO, a libertarian think tank, put it this way:

    “There is no natural limit to the scope of antidiscrimination laws, because the concept of antidiscrimination is almost infinitely malleable … Is a school admitting students based on SAT scores? That is discrimination against individuals (or groups) who don’t do well on standardized tests! Is a store charging more for an item than some people can afford? That is discrimination against the poor! Is an employer hiring only the best qualified candidates? That is discrimination against everyone else!”…

    … As a free-market conservative, Pence knows better than others that big government solutions — redundant and arcane laws wrought by countless committees that merely give more business opportunities to trial lawyers — rarely solve our most complicated problems.

    His sin here isn’t one of bigotry, it’s one of surprising liberalism.

    Source: http://www.nydailynews.com/opinion/s-e-cupp-foes-religious-freedom-law-wrong-article-1.2168209?cid=bitly

    • #3
  4. Herbert Woodbery Inactive
    Herbert Woodbery
    @Herbert

    After all what do we see today as sacred?

    Individualism

    • #4
  5. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Herbert Woodbery:After all what do we see today as sacred?

    Individualism

    Individualism is hardly sacred when individuals are prohibited from exercising their religious beliefs.

    • #5
  6. Z in MT Member
    Z in MT
    @ZinMT

    That’s why I draw the line for private discrimination matters back at First Amendment Free Association rights.  A business owner should have the right to discriminate against anyone for any reason. Once you can compel someone to engage in commerce against their conscience (even when the conscience is reprehensible), you have given the majority all power.

    • #6
  7. Ricochet Member
    Ricochet
    @ArizonaPatriot

    Frankly, the existence of anti-discrimination laws is the thing that creates these problems.  I submit that these laws are doing significantly more harm than good.  Any anti-discrimination law enshrines the opposite of liberty, because liberty, in this context, means freedom of association.  Anti-discrimination laws mean forced association.

    I think that we should make very few exceptions to this rule — in fact, I can’t think of any outside the “natural monopoly” context.  I favor applying an anti-discrimination law to a natural monopolist, because his customer, by definition, has no alternative.

    But in most circumstances, there are plenty of alternatives.  Where most of us live, there are dozens or hundreds of florists, bakers, restaurants, employers – you name it.  The businessman choosing to discriminate loses business, so I suspect that very few will do so.  Remember that in the Jim Crow South, legally mandated discrimination was the rule, because social pressure did not work well to enforce discrimination against blacks that was contrary to the economic interests of those doing the discriminating.

    Having said that, I think that people generally shouldn’t engage in “invidious discrimination.”  But legally enforcing such a norm violates freedom of association, has very large transaction costs, and many other negative effects (such as having to defend discrimination claims lacking merit).

    • #7
  8. Guruforhire Member
    Guruforhire
    @Guruforhire

    Something to bear and mind as the bigots work up their frothing rage. Religion is protected by EO too……

    • #8
  9. tom Member
    tom
    @TomGarrett

    Thanks very much, everyone!  I appreciate your taking the time to read this, and thanks also for the warm welcome.

    • #9
  10. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Great post, and welcome to Ricochet, Tom!

    Tom Garrett:…[A] libertarian, which I’m not, might say that even that law should not exist — but that’s a discussion for another day…

    As an alternative to all of the above, we could return to where the law was in 1990 and say that laws of general applicability have a lower hurdle to clear. I could actually live with that, as it would at least be a consistent rule. That would mean Muslim prisoners would be forced to shave, no one would be allowed to ingest peyote, the Christian baker would be forced to bake a cake for a gay wedding, and the Sikh would have to surrender his kirpan.

    It would also mean that Justice Scalia had it right the first time.

    I don’t think you need to be a libertarian to favor that position (though I am one, so take that for whatever it’s worth).

    Laws should be assumed to be generally applicable. That’s the purpose of law, and why we don’t get to know what color eyes Lady Justice has. If there’s a critical mass of instances for which the law causes more trouble than it’s worth, that’s a really good argument against passing the law. If we concede that it’s okay for Indians to smoke peyote in religious ceremonies, maybe a blanket prohibition against it isn’t the best remedy for that problem.

    The problem with RFRA is that it attempts to ameliorate the damage bad laws cause, rather than address the bad law itself. That’s a totally understandable and honorable intent, but it’s mistaking an analgesic for a cure: it helps things in the short run, but removes the incentive to address the problem itself.

    • #10
  11. user_86050 Inactive
    user_86050
    @KCMulville

    Rights sometimes conflict. Sorry, they do.

    In the current rhetoric, each side thinks that simply declaring a right will solve the dispute. But clearly, we have two rights that are in conflict in the baker’s case: we have the right of public accommodation versus the right of freedom of belief. When one side cites the idea that public accommodation is a right, they’re correct. It is. But so is freedom of belief. Neither right is absolute.

    The RFRA law says that these rights must be examined case by case; but more specifically, it says that the right to religious belief is so important that the government must prove that there is no other choice. Since in almost every jurisdiction, a gay couple can find someone else to bake a wedding cake, it’s almost never true that there’s no alternative, and there’s no compelling reason to force a baker to do something he doesn’t want to do.

    In this uproar, it’s clear that emotion and indignation are being used to obscure the arguments – and that’s why pointing out the hypocrises and absurdities of the indignant crowd is a good brake on their rhetoric.

    • #11
  12. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Great post. I would have gone a little farther in the explanation, however. The very core of the debate is not just whether or not religious ideas carry any weight in the public sphere, but whether religious ideas have any possibility of being true or not. We were once humble enough to admit that even our most sincerely held beliefs, even those that meet the Kantian imperative, cannot be forced on others. We’re just fallible human beings, after all. We were humble enough to reject Kant and his imperative. Those who now reject religious liberty lack such humility, fully embrace the categorical imperative of their own beliefs in the falsity of all religious concepts, and will their disbelief on all of society through the force of law. We’re not just fighting for the ability to express our beliefs and live according to them; we’re fighting for the very right to hold them.

    • #12
  13. Larry3435 Member
    Larry3435
    @Larry3435

    Nicely written essay, but I think you miss one piece of the puzzle.  Sometimes laws are symbolic.  They are not intended to control behavior, but rather to convey a social message.  In this case, this law is considered by some (on both sides) to express disapproval of gay marriage in the only way that remains available (now that the courts have headed off in the direction of prohibiting an outright ban on gay marriage).  It is the timing of this law that gives it symbolic significance.

    Once a law has become a symbol in a larger social controversy, analyzing the details of how the law would actually impact real-life litigation is not going to influence many people.  It is like passing a law that would permit the posting of the Ten Commandments in a courtroom.  Would such a posting have much of an impact on students’ lives?  Probably not.  But it would be controversial, because it would take on symbolic significance.

    • #13
  14. Fake John Galt Coolidge
    Fake John Galt
    @FakeJohnJaneGalt

    I have been wondering how much of this flack is about the law and how much is about stomping on a possible 2016 GOP presidential hopeful?

    • #14
  15. Mario the Gator Inactive
    Mario the Gator
    @Pelayo

    Thanks for the post. This is the best outline I have read describing the real issue behind the mass Liberal hysteria over Indiana’s law.  Count me among those who feel strongly that Religion should carry special weight.

    • #15
  16. Guruforhire Member
    Guruforhire
    @Guruforhire

    KC Mulville:Rights sometimes conflict. Sorry, they do.

    In the current rhetoric, each side thinks that simply declaring a right will solve the dispute. But clearly, we have two rights that are in conflict in the baker’s case: we have the right of public accommodation versus the right of freedom of belief. When one side cites the idea that public accommodation is a right, they’re correct. It is. But so is freedom of belief. Neither right is absolute.

    The RFRA law says that these rights must be examined case by case; but more specifically, it says that the right to religious belief is so important that the government must prove that there is no other choice. Since in almost every jurisdiction, a gay couple can find someone else to bake a wedding cake, it’s almost never true that there’s no alternative, and there’s no compelling reason to force a baker to do something he doesn’t want to do.

    In this uproar, it’s clear that emotion and indignation are being used to obscure the arguments – and that’s why pointing out the hypocrises and absurdities of the indignant crowd is a good brake on their rhetoric.

    There is no such thing as a right of public accommodation.  To say there is, is to bastardize the language to the point of meaninglessness.

    It is literally impossible for rights to conflict.

    • #16
  17. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    It is literally impossible for rights to conflict.

    Expound please.

    • #17
  18. user_86050 Inactive
    user_86050
    @KCMulville

    Guruforhire:

    There is no such thing as a right of public accommodation. To say there is, is to bastardize the language to the point of meaninglessness.

    It is literally impossible for rights to conflict.

    Impossible? Why?

    • #18
  19. Guruforhire Member
    Guruforhire
    @Guruforhire

    Its practically definition.  A right is something you can do inherent to the self which doesn’t impose on someone else.

    It stops being a right when it starts to impose.  Then it becomes a privilege.

    A privilege or benefit can be in conflict with a right.  Which is what we are talking about.

    We can say that privileges and benefits are socially useful, and that we must make these impositions, which is fine and proper.  They just aren’t rights.

    The lack of a benefit is not the same as a violation which is another common sophism.

    -1 =/= 0 =/= +1

    • #19
  20. Herbert Woodbery Inactive
    Herbert Woodbery
    @Herbert

    I have been wondering how much of this flack is about the law and how much is about stomping on a possible 2016 GOP presidential hopeful?

    I think there is some of that going on.

    Also As Larry pointed out the issue isn’t just about ( or for the opponents it isn’t even mainly about) the technicalities of the law, it’s about symbolism, it’s about a national revulsion to using gays as a straw man for the culture wars, people are saying enough is enough, let them be.

    • #20
  21. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    A right is something you can do inherent to the self which doesn’t impose on someone else.

    List one such thing that exists while living in a society?

    • #21
  22. user_86050 Inactive
    user_86050
    @KCMulville

    Guruforhire:Its practically definition. A right is something you can do inherent to the self which doesn’t impose on someone else.

    It stops being a right when it starts to impose. Then it becomes a privilege.

    Why is imposition the criteria? A fetus’ right to life certainly imposes on the mother. Does that mean that a fetus has no right to life, i.e., that it’s only a privilege that the mother chooses to accept? Even after 8.5 months?

    • #22
  23. TeeJaw Inactive
    TeeJaw
    @TeeJaw

    The protest against Indiana’s RFRA is being prosecuted by people who want to impose their sexuality and world outlook on everyone else. In this regard, considering their purpose and their tactics, they are acting in a manner that can be described as:

    [T]otalitarian in that it views everything as political and holds that any action by the state is justified to achieve the common good. It takes responsibility for all aspects of life, including our health and well-being, and seeks to impose uniformity of thought and action [Gleichschaltung], whether by force or through regulation and social pressure.

    That, of course, if the definition of Fascism that Jonah Goldberg gives in his book, Liberal Fascism.

    • #23
  24. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    On a related note, I got a kick out of today’s Daily Shot in which Fred links to a gay advocacy website to tell us which individuals we need to anathematize for being “anti-gay.” Personally, I prefer to get my character assassination directly from the Southern Poverty Law Center.

    • #24
  25. Ricochet Member
    Ricochet
    @Manny

    Larry Koler

    Welcome, Tom.
    Simply superb post. Thanks for taking the time.
    I am so struck by your notion that sexuality has swapped places on our culture with religion. Wow! this really seems to be true. After all what do we see today as sacred? Sexual identity oh, that’s so important. Weird world we are in

    I concur.  That sexuality has swapped places with religion is a great insight and spot on.

    • #25
  26. user_517406 Inactive
    user_517406
    @MerinaSmith

    Somehow I think that worshiping sex is not going to go anywhere good.  At least, it hasn’t in the past 30 plus years.

    • #26
  27. Herbert Woodbery Inactive
    Herbert Woodbery
    @Herbert

    a related note, I got a kick out of today’s Daily Shot

    How do you get to the daily shot?

    Btw, while we are at it how do we get in the ricochet fb page?

    • #27
  28. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    “How do you get to the daily shot?”

    There’s a subscribe box near the bottom of the main feed. At least on Android.

    • #28
  29. Guruforhire Member
    Guruforhire
    @Guruforhire

    The King Prawn:

    A right is something you can do inherent to the self which doesn’t impose on someone else.

    List one such thing that exists while living in a society?

    Standing on my head spitting jelly beans.

    Sunbathing in my front lawn

    Walking down a street

    eating food which is yours

    property

    sleeping

    I can do this all day.

    • #29
  30. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    While I agree that sex has become the new religion, the driving conceit behind the “gay rights” movement is that sexual practice is the new race.

    • #30

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