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Thursday, April 2, 2015

Reality check on the Religious Freedom Restoration Act

Posted by Scott Tibbs at 4:00 AM (#)

The Religious Freedom Restoration Act was passed at the federal level by a Democratic Congress and signed into law by President Clinton. A nearly identical law was passed in Illinois a few years later, and state senator Barack Obama voted for it. Yet we are now having a national freak-out because Indiana passed a law that is virtually identical to the ones supported by Clinton and Obama.

The premise behind the law supported by Obama, Clinton and Mike Pence is astonishingly simple. Government cannot force you to do something that violates your religion (even if it is a rule that applies to everyone) unless there is a "compelling state interest" to do so. Then, government needs to demonstrate that the law or regulation is the least burdensome way to accomplish that compelling state interest.

This means that laws against racial discrimination are not in danger, because it meets both the "compelling state interest" test and the least burdensome method test. Despite some Internet trolling, marijuana prohibition is not in danger either. That is because you have something that is either legal to use or not, and so there is no middle ground between the two.

What the state RFRA - like the federal RFRA - does is protect against government regulations that can be burdensome. A church, for example, cannot build in violation of building codes or zoning regulations that apply evenly. But that church would not be forced to provide birth control to its employees if there is a less burdensome way to establish the state's policy goals of covering birth control.

Does this law allow for discrimination against homosexuals? Here is the dirty little secret behind the hysteria over this issue: Sexual preference is not included as a protected class under Indiana's civil rights laws. This means the RFRA literally changes nothing regarding whether discrimination is legal under the Indiana Code. And despite this, you have not seen widespread discrimination against homosexuals in Indiana and you will not see it once RFRA becomes law. The outrage over RFRA cannot even be said to be making a mountain out of a molehill. It is making a mountain over a level plain.

Where the "discrimination" angle comes in is whether government can use a civil rights statute (that, again, does not exist in Indiana) to force a business owner to participate in a homosexual wedding by providing a cake or flowers. That same Christian baker or florist would not turn down that same person coming in to buy a birthday cake or flowers for Mother's Day - and he would be violating both good business sense and Scripture to do so. After all, the Apostle Paul said in 1 Corinthians 5:9-11 that we should not go out of the world.

But providing a general service to someone who you know to be openly, unapologetically and unrepentantly engaged in a sin is very different from endorsing that sin by providing a service to support that sin - whether it be a same-sex wedding or a wedding of a man who has abandoned his wife and children to marry a woman half his age. In order to force someone to do that against his religious convictions, the government would have to prove that there is a compelling state interest at stake and that there is no less burdensome way to accomplish the goal of letting someone buy the product for the wedding the business owner finds objectionable.

In fact, business discriminates every day based on behavior, from "no shirt, no shoes, no service" rules to airlines that will not allow someone wearing an obscene shirt to board an airplane. But this is not and was never about tolerance for militant homosexuals and their supporters. This is about mandatory acceptance. Tolerating the behavior is not enough; you must endorse it, or face punishment by government. That attitude is completely opposed to the freedoms protected by the First Amendment, which is why laws like the RFRA are needed.

So, at the end of the day, this is a very simple law that changes absolutely nothing regarding anti-discrimination law, though it does provide an extra layer of protection by mandating strict scrutiny for claims that a law violates freedom of religion. It is a law that should have been passed fifteen years ago.

I posted a series of links on Facebook last week to blog posts and editorials I have written on freedom of association and why freedom of association must necessarily include the freedom to not associate.


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Comments:

At April 2, 2015 at 12:28 PM , Blogger TableTopJoe said...  

Mr. Tibbs, a few points:

1. With respect to the federal RFRA, it was indeed passed by a Democratic Congress and signed by Bill Clinton. I was unaware that these things conferred such credibility with you, but nonetheless, this bill was passed to protect those of minority religions, i.e. Native Americans, from laws passed by the majority that burdened their religion (by prohibiting the ingestion of peyote). This was never intended to ensure that the majority can use religious pretext as an excuse to discriminate against disfavored minorities. Further, it has since been perverted by the Hobby Lobby decision to, somehow, encompass a corporation's religious conscience. Is a corporation alive? Does a corporation go to church? A corporation is separate from its owners by design. Nonetheless, Indiana's RFRA expanded on that aspect of the federal RFRA. It also expanded RFRA to include a defense in private actions, although the subsequent "clarification" might roll that back. We'll see.

2. With respect to the law that Barack Obama voted for in IL, remember that IL indeed has sexual orientation listed in its civil rights laws as a protected class. IN does not. If you and your ilk would like to make it clear that you have no intention of discriminating against homosexuals, why don't you join Freedom Indiana and insist that sexual preference be protected per IN's civil rights laws?

3. With respect to marijuana, your argument is a non sequitor. If I claim that my personal conscience and religion compels me to smoke marijuana in order to better communicate with God Almighty, RFRA indicates that I should be free to do so, regardless of the non-existence of a "middle ground" as to whether it's legal or not. The same argument could be (and was) made with respect to peyote.

4. You are indeed correct that IN RFRA changes nothing. It doesn't matter. This has everything to do with what it looks like, and what it looks like is Gov. Pence, Micah Clark, et al looking for a symbolic victory in the wake of their defeat over the IN same sex marriage amendment, 7th circuit opinion, etc. If Pence et al tell their supporters, "If we can't outlaw gay marriage, at least we'll pass RFRA to stick it to those homosexuals" it's a bit disingenuous to claim, after the outcry, that it does nothing. I believe The Onion's headline was perfect when it read, "Indiana Governor Insists New Law Has Nothing To Do With Thing It Explicitly Intended to Do."
For your reading pleasure: http://www.theonion.com/articles/indiana-governor-insists-new-law-has-nothing-to-do,38330/

5. The Right-Wing freakout over one bakery and one florist is amazing to me. Where is this level of official indignation at Civil Seizure (to your credit, you have written about it) or mass incarceration (maybe you have, maybe you haven't ... i don't know). Let me put this clearly to you: If you're in the business of selling flowers, you have to sell them to all comers. If you're in the business of catering weddings, you have to cater to all comers. Period. This goes back to the middle ages: If you're a "common carrier" business, then you have to provide your service to all comers without discrimination. By your logic, a hotel could refuse to rent a room to two men, based on their religious beliefs, because that room could be used to promote sin.

Finally, your crocodile tears about tolerance fall flat. You assert that the "militant homosexuals and their supporters" want to mandate acceptance by you. Nothing could be further from the truth. You can go to church and condemn them all you want. You can curse them in your own home all you want. You simply can't discriminate against them. Who ever said you have to endorse homosexual behavior? You don't. However, if you're in certain businesses, you must serve all comers, including the homosexual ones.


At April 6, 2015 at 6:36 AM , Blogger Scott Tibbs said...  

My response is here.