Indiana: A Religious Liberty Bellwether
I spent the weekend reading as much as I could about the controversy over Indiana’s new religious freedom law. What it tells us is very bad, from a conservative perspective, especially a religious conservative perspective. Let me explain.
First, the Indiana law is not substantially different from the federal Religious Freedom Restoration Act, nor is it substantially different from state RFRAs in place in most other states in the US. Indiana law professor Daniel O. Conkle, who supports gay rights in general and same-sex marriage in particular, also supports the Indiana law, and explains why here. Excerpts:
It’s because — despite all the rhetoric — the bill has little to do with same-sex marriage and everything to do with religious freedom.
The bill would establish a general legal standard, the “compelling interest” test, for evaluating laws and governmental practices that impose substantial burdens on the exercise of religion. This same test already governs federal law under the federal RFRA, which was signed into law by President Bill Clinton. And some 30 states have adopted the same standard, either under state-law RFRAs or as a matter of state constitutional law.
Applying this test, a unanimous U.S. Supreme Court recently ruled that a Muslim prisoner was free to practice his faith by wearing a half-inch beard that posed no risk to prison security. Likewise, in a 2012 decision, a court ruled that the Pennsylvania RFRA protected the outreach ministry of a group of Philadelphia churches, ruling that the city could not bar them from feeding homeless individuals in the city parks.
Conkle points out — as have others in recent days — that the Indiana law is not a free pass to businesses to discriminate against gay customers. All it does is grant religious people the right to a court hearing in such matters, to determine if there is a way that the state can better achieve its aims than to compel the business owner to violate his conscience. That’s it. In other states that have RFRAs, Conkle says, courts have heard cases related to supposed anti-gay claims, and ruled against the religious plaintiff. More:
In any event, most religious freedom claims have nothing to do with same-sex marriage or discrimination. The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a “license to discriminate,” and it should not be mischaracterized or dismissed on that basis.
I repeat: this is the opinion of an actual law professor in Indiana, a professor who supports same-sex marriage and gay rights. Law professor Josh Blackman compares in detail the Indiana law and the federal RFRA, and says the Indiana law is essentially the same thing as the federal one. Excerpt:
I should stress–and this point was totally lost in the Indiana debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate.
Is the Religious Freedom Restoration Act really a license to discriminate against gay people?
No. Stanford law professor Michael McConnell, a former appellate court judge, tells THE WEEKLY STANDARD in an email: “In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”
So what is the Religious Freedom Restoration Act, and what does it say?
The first RFRA was a 1993 federal law that was signed into law by Democratic president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer, and sailed through the Senate on a 97-3 vote.
The law reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person’s free exercise of religion to be “substantially burdened” by a law only if the law furthers a “compelling governmental interest” in the “least restrictive means of furthering that compelling governmental interest.”
So the law doesn’t say that a person making a religious claim will always win. In the years since RFRA has been on the books, sometimes the courts have ruled in favor of religious exemptions, but many other times they haven’t.
Again, Religious Freedom Restoration Acts don’t allow individuals to do whatever they wish in the name of religion. There will be times when the government can show it has a compelling reason for burdening religious expression—to ensure public safety, for instance.
But Religious Freedom Restoration Acts set a high bar for the government to meet in order to restrict religious freedom. The way we’ve learned to live in a pluralistic society, with diverse religious and moral opinions, is to have a balancing test like the one the Religious Freedom Restoration Act provides.
A robust conception of religious liberty provides every person the freedom to seek the truth, form beliefs, and live according to the dictates of his or her conscience—whether at home, in worship or at work.
And on and on. The Indiana RFRA, then, is not only common in America, in practice is has little to do with gay issues, and when it does, it is no guarantee that the “anti-gay” side will prevail. That’s it. Garrett Epps, writing in The Atlantic, says that the RFRA in Indiana really is different. Here is the gist of his argument:
Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”
Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision.
That’s all he’s got? Of course the Indiana RFRA is tailored to a post-Elane legal environment. What did he expect? The Indiana law gives business owners recourse to the courts. That’s it. It does not guarantee that they will win. But Epps considers the possibility that the religious business owners might be due some consideration so horrifying that he is unable to tolerate it, and in fact — you knew this was coming — compares the whole thing to Jim Crow racism.
This total political and media freakout over the Indiana law is the real story. It’s a hysterical overreaction that, frankly, is scary as hell. Here is USA Today sports columnist Nancy Armour:
The NCAA should be applauded for swiftly and strongly expressing its disapproval of Indiana’s new law that cloaks discrimination in “religious freedom.”
But it can’t stop there.
It is too late to pull this year’s Final Four from Indianapolis, given it is next weekend and there’s no other city that would have an arena and several thousand hotel rooms available. But the NCAA can – and should – tell Indiana lawmakers that their prejudice and mean-spiritedness has cost the state the privilege of hosting any other collegiate sporting event.
The 2016 women’s Final Four currently scheduled to be held in Indianapolis? Not anymore.
The early-round games for the men’s tournament that Indianapolis is looking forward to hosting in 2017? They’ll be moved somewhere else.
The 2021 men’s Final Four that was awarded to Indianapolis last fall? That will be going to a more enlightened state, like Minnesota.
The NCAA is reconsidering its relationship with the state. NCAA chief Mark Emmert said the other day:
The NCAA national office and our members are deeply committed to providing an inclusive environment for all our events. We are especially concerned about how this legislation could affect our student-athletes and employees. We will work diligently to assure student-athletes competing in, and visitors attending, next week’s Men’s Final Four in Indianapolis are not impacted negatively by this bill. Moving forward, we intend to closely examine the implications of this bill and how it might affect future events as well as our workforce.
Corporate titans have weighed in, with Apple leading a Silicon Valley group protesting the law. Angie’s List is putting a business expansion on hold. And now, this is apparently Democratic Party orthodoxy, with presumed 2016 Democratic nominee, whose husband in 1993 signed the federal RFRA (which passed with overwhelming Democratic support), tweeting:
— Hillary Clinton (@HillaryClinton) March 27, 2015
Patrick Deneen gets what’s really going on here:
Any cause with the active support of Apple, NCAA, Wal-Mart and the Kochs is not a beleaguered minority, but the ruling elite.
— Patrick Deneen (@PatrickDeneen) March 29, 2015
Over the weekend, a reader wrote to say he had been talking with a thirtysomething “conservative-ish” Evangelical pastor who saw no possible religious-liberty justification for someone to withhold services from same-sex customers (e.g., Christian wedding photographers). The reader said that the pastor could not understand why anybody would have a religiously valid reason to refuse to participate in a commercial transaction with gays. The reader tried pointing out to him that he doesn’t have to agree with the religious person’s reasoning to recognize that their right to be wrong deserves respect, but the pastor could not grasp this.
My reader wrote me to report all this, and to say he’s been skeptical of my dire warnings about where religious liberty is headed in this gay-rights environment — and this is true, as I can tell you from his comments on the blog — but no more. The Law of Merited Impossibility is being validated every day now. Writes the reader: “I agree we’re in trouble.”
This is because those who are campaigning for total sexual freedom will link the religious freedom laws with freedom to discriminate. It will confirm in their minds what they already feel at a gut level–that the religious people are the enemy. The religious people are the bigots.
They are already doing so, and doing so with violence–verbal and economic violence to start with, but be prepared for legislative violence and then punitive violence.
The “Restoring Religious Freedom” laws will therefore crystallize in people’s minds that religion is all about discrimination and the unthinking hordes will automatically conclude that if a person is religious (and especially Catholic) that they are homophobic bigots–and probably racists too.
The “Restoring Religious Freedom” laws will be portrayed as legalizing discrimination and religious people will be as marginalized as racists.
Yes, this is happening, and will continue to happen. And it’s going to happen because corporate America and the media are all-in to demonize religious conservatives. The pro-SSM libertarian David Harsanyi notes that many in the media — not op-ed media, but straight-news media — frame their reports as if there were no actual religious liberty issues at stake here. That it’s all made-up by right-wingers and theocrats. This is true:
My theory: People have a really hard time defending rights that they can’t imagine themselves ever exercising.
— Michael B Dougherty (@michaelbd) March 29, 2015
And this is true too:
This argument that religious liberty was something we needed only up until gay marriage came on the scene is an intriguing one.
— Mollie (@MZHemingway) March 29, 2015
Media/elite argument against religious liberty is that gay rights is more foundational than religious liberty. And this is fascinating.
— Mollie (@MZHemingway) March 29, 2015
It seems to me that the media/elite freakout over the Indiana law is a moral panic analogous to the freakout over the UVA rape case. People rushed like lemmings to endorse as true something that turned out to be a hoax because it confirmed their prejudices about Bad Classes of People. This is why so many in the media are making no pretense to be fair in their reporting and commentary on the Indiana law. As Mollie Hemingway avers, the most interesting — and most worrying — aspect of all this is that religious liberty is not considered to be important at all to very many people in this country, especially the most powerful people.
Notre Dame’s Pat Deneen wrote this weekend on Facebook that law school friends tell him of plans underway now by progressive law profs to “Bob Jones” churches and religious institutions that have policies they consider discriminatory against LGBT people. That is, they want to campaign to take away tax exempt status from all religious entities that have traditional views and practices related to homosexuality. This is the next frontier. Many churches and religious entities operate so close to the margins, budget-wise, that they will not be able to survive this.
This is coming. Remember when they told us that SSM would not affect the rest of us? Do you now see that this was a lie? As I have been saying:
The Law Of Merited Impossibility is an epistemological construct governing the paradoxical way overclass opinion makers frame the discourse about the clash between religious liberty and gay civil rights. It is best summed up by the phrase, “It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.”
If the Indiana witch hunt doesn’t convince you of the truth of the Law of Merited Impossibility, you are deluded.
A couple of years ago, Ross Douthat commented on the bizarre fact that so many otherwise intelligent people defending gay marriage write as if the idea that procreation has anything to do with marriage is some weirdo right-wing Christian idea that theocons only came up recently with to thwart gays. In fact, as Douthat easily showed, it has been embedded in marriage law for centuries. Here’s why that matters, according to Douthat:
That so many people find this claim credible or even self-evident is a small but potent example of exactly the two phenomena that my column’s conclusion discussed: First, the way that gay marriage inevitably has widening cultural ripple effects, in this case revising not only the law itself but also the stories people tell about where those laws came from and what they’re meant to do; and second, the way that some of these ripple effects are making it almost impossible for liberals to show magnanimity in victory, and accept the continued existence of people and institutions that still take the older view of what marriage is and means. After all, if that supposedly “older” view was just invented by Clinton or Bush-era homophobes when their Bible-thumping stopped working, then what’s to respect or even tolerate? Once you’ve rewritten the past to make your opponents look worse, then you’re well on your way to justifying writing them out of the future entirely.
He wrote that two years ago. It was prophetic. This is happening now. The media, academia, and big business are all of one mind. It is a juggernaut that is going to roll over religious liberty.
The overreaction, especially the blatant lies and completely invented controversy, in which the media and big business have engaged in the past few days about Indiana and religious liberty, has been a shock to my system — this, even though I am by now used to just about anything from that side. Because religious liberty is the most important political issue to me, it is hard to imagine sitting out the 2016 presidential election, as I have done the past two times because I couldn’t stomach the Republican nominee. It is impossible to imagine voting Democratic in 2016, because the Democrats are actively committed to legislating contempt for traditional Christians like me. If even mild attempts to give minimal protection to religious dissenters is condemned as Jim Crow redux by the Democrats, it genuinely frightens me to think about what a Supreme Court dominated by Obama-Clinton justices would do.
Voting Republican is no guarantee that religious liberty would be strengthened in SCOTUS rulings in the future, but there is some hope that a GOP president would nominate justices sympathetic to religious liberty concerns. With President Hillary Clinton, or any conceivable Democrat, there is no hope at all.
Je suis le First Amendment. Indiana shows why for social and religious conservatives, 2016 is all about the Supreme Court and religious liberty. The past few days have made someone like me, a conservative independent who has little use for either party, realize that I cannot afford to be on the sidelines in 2016. Religious conservative voters must be focused like a laser on religious liberty, right now. It’s that important.
UPDATE: A commenter on Facebook, whom I’ll identify once I verify that this was on a public post, [UPDATE: It’s Larry Chapp] writes:
I do not trust the Republicans to stand by their rhetoric on issues like abortion, gay marriage, the family and so on. And they actively work against things I believe are very, very pro-family like extended maternity leave laws and a raise in the minimum wage. All that said, as jaded as I have become to our current political situation, and as disgusted as I have become with both parties, I have been jolted to my core by the deliberate lies and distortions that have been put forward by the media and the Democrats concerning Indiana’s new religious freedom law. It is now blatantly clear and there should be ABSOLUTELY no doubt in our minds: the Democratic party, in collusion with media and entertainment elites, are anti-Christian in deeply ideological ways. And this anti-Christian stance is now “out of the closet” with the gloves off and all pretense to it being anything other than a hatred for the Christian faith dropped. For this law, which 19 other states also have, and which is, like all of the others, modeled after the Federal law sponsored by Democrats like Chuck Schumer and Bill Clinton in 1993, and which passed a Democratically controlled Senate in 1993 97-3, to be characterized in CNN and NYT’s headlines as the “anti-Gay bill” is beyond irresponsible and reprehensible. And most of these articles, if you dig into them, never clarify the headline and never put the law in context, and continue to repeat the lie that the law will “allow businesses to discriminate against Gays on ‘religious’ grounds'”. It does nothing of the sort. Gays are never mentioned in the law. And the law has never been used in any state or by the Feds to discriminate against gays. Notice too how almost all of the headlines put the words “religious liberty” in scare quotes, implying that any concern with religious freedom is utterly bogus and false and intolerable if it even hints at the curtailment of a single homosexual entitlement. So in the context of this thread here is my point: I will still not vote for either Republicans or Democrats since, in my view, they are exactly the same party and owned by exactly the same people. But … that will change in favor of the Republicans depending on how they respond to this Indiana controversy. If they run for cover and repudiate the law then to hell with them. They will have confirmed my suspicions that they are insouciant liars on the social issues. However, if they develop a spine and some common sense and defend the law then I will start to vote Republican on the basis of the single issue of religious freedom. I am a devout and practicing Catholic. My Polish and Italian relatives, living and dead, have been proud, life long Democrats of the old-fashioned Catholic/immigrant/labor, variety. But if the Democrats want to spit openly in the face of my faith, my loved ones, and my friends, then quite frankly, they can kiss my a**.
And to add to my screed above, I think the thing that has most gotten my attention about this Indiana law and its haters is that it signals a very significant tectonic shift in the tone and rhetoric concerning people of traditional religious faith. A mere ten years ago such laws were being passed in state after state with good support from Democrats. But since then, the Obama revolution has happened … and there has been a noticeable empowerment of the nihilist, pelvic, Left. And the language of the pelvic Left was adopted by the mass media creating a sea change in perception that is truly Orwellian: what is called “tolerance” is, in fact, cultural fascism and what is called “diversity” is in fact a monochrome jello. And its effects have been devastating. The HHS mandate, which is a clear violation of the Federal RFRA of 1993, and a clear violation of religious liberty, was turned on its head in the public rhetoric in such a way that the Church was adroitly cast as the villain of freedom and of women, when all it was doing was asking not be forced to pay for something. The Church objected to being forced to pay for something and yet they were vilified as the ones doing the forcing. Likewise, a gay couple, who could easily go to 37 other bakeries, decide to sue a single bakery, owned by an elderly Christian couple who have run the store for 30 years. And rather than the gays being viewed as litigious bullies who cannot just “live and let live”, they are held up as heroes of freedom and the bakers as the reincarnation of the KKK. What this signals is something dangerous for those of us of traditional faith and not in just a passing way. What the nonsense and lies over the Indiana law shows is that what is now playing out is that ANY LAW that is viewed as favorable toward people of traditional religious faith will be opposed with the full force these people can muster. The issue is NOT that they are lying in order to force the gay agenda on everyone, although that is part of it. The issue is deeper. The issue is that they want the destruction of the faith. They want people like us ruined. They want the kingdom of nihilist, pelvic Lefties to reign without opposition.
That rhetoric is sometimes shrill, but his essential point is right on: ANY LAW that is viewed as favorable toward people of traditional religious faith will be opposed with the full force these people can muster.
Life in post-Christian America, people.