RFRA’s do not License Class Discrimination

rlgsfrdmThe recent passage of the Religious Freedom Restoration Act in Indiana has caused a disproportionate amount of push back considering a similar law was passed under a democratic administration at the federal level over 20 years ago and, about 40 percent of states already have such laws in place. Most of the individual state amendments were passed before the marriage issue really came to the forefront.

Some of the fervor is related to the fact that the Indiana law originally had broader provisions that may have accorded the rights of individuals to corporate entities. But all things considered, more likely the protesters were energized and emboldened by recent federal court decisions expanding the definition of marriage.

The U.S. has had a long history of conscientious objection to participation in war grounded in religious conviction. Why is the current rationale for conscientious dissent any less worthy of deference?

The RFRA’s merely help balance the growing socially acceptable climate of  intolerance foisted against the liberty of conscience of those with sincere religious convictions. Such protections accord persons the right to conscientiously object to participating in certain activities, events or ceremonies that impinge upon their liberty of conscience, if such an objection is informed by a deeply held religious conviction. A refusal to participate that results in a lawsuit will require the courts to determine whether specific performance would place a substantial burden of conscience on the one objecting. We have created a hostile environment for religious faith by incrementally narrowing the scope of free religious exercise, so that it is little more than tolerance of worship.

So much of this activism is erected on a foundation of misinformation. Distortions and false assertions about the purpose and scope of the RFRA’s are abundant. Observations regarding them are dictated by ideology far more than factual analysis of the law’s text and intent. Some people think these laws would allow discrimination against entire classes of people, a la  refusing to serve someone a meal at a restaurant because of their race. People who ought to know better continue to promulgate this straw man. It should be understood that the RFRA’s work as a shield to protect, not as a sword to go on the offensive.

 In Michael B. Dougherty’s commentary “The Insane National Freak-Out Over Indiana’s Religious Freedom Law,” this point in made emphatically.

“There’s little historical evidence to suggest that Indiana’s RFRA could be used in a general way to deny service to customers who are gay. RFRA statutes in other states have never successfully defended a proprietor from an anti-discrimination suit. All the speculation about the minor differences in Indiana’s statute that allegedly make it a historical violation of civil rights is just that: speculation…”

All to often, when people supposedly protest against intolerance and bigotry, we witness a grotesque caricature of the very dispositions supposedly being condemned. I’ve known good, kind people, recklessly accused of intolerance, who have not a malicious bone in their body.
 
People are frequently pooh-poohed for arguing there is an assault on religious liberty. But the proof is that whenever religious liberty comes into conflict with some newly recognized right, it’s always religious liberty that is swept aside in paying homage to the new right. People frequently hide their derision or indifference for religious principle by claiming its exercise violates some other fundamental rights. Free exercise of religion is the very first right cited in the Bill of Rights. In light of changing cultural norms, people of faith must be given deference to conscientiously object against forcibly participating in activities violating their liberty of conscience, just to keep pace with the cultural drift.

President Clinton once made a crop of political hay in commenting on the poverty of the aged. Clinton stated that the elderly shouldn’t have to choose between eating and purchasing prescription medication. Applying that same sentimentality here, it’s clear that small business owners shouldn’t be forced to choose between their livelihood and their  conscience either. Without RFRA’s they will.

I hear people say that any form of ‘discrimination’ is horrible. This type of claim isn’t well thought out though. We don’t let 12-year-olds drink alcohol, or let nine-year-olds drive motor vehicles. You must be a certain age to marry or run for president. We don’t let felons own firearms. We notify people when sex offenders move into a new neighborhood. You can’t go into a restaurant without shoes or a shirt. All these are forms of discrimination, but are they all horrible? Do we suggest that such laws are enacted because of hatred toward youth or people who don’t wear shirts, or do we recognize that a compelling public interest overrides the apparent discriminatory elements of these laws and policies? That is the question that must be asked before the state aggressively overrides a deeply held personal religious objection.

Then there’s the assertion that people are hiding their true vitriol behind religious convictions. That presumes one can judge the thoughts and intentions of the human heart. It is a claim easily reversal as well. Perhaps people who despise religion use protests over the passage of RFRA laws as a pretext to legitimize their hostility toward religion?

Why would anyone acting charitably, forcibly insist that someone participate in an activity that they cannot from the heart embrace in good conscience? I would instead enlist the services of another who wasn’t constrained in that way. There should be numerous other options. Businesses don’t make money by capriciously declining service to potential customers.

That raises a question about the civility and demeanor of those who file lawsuits against business owners who are willing to exercise their profound conscientious objections. It also shows a stark contrast between the limited situations of potential conflict under the RFRA’s, versus the cultural discrimination that was virtually absolute before racial segregation was outlawed. Contemporary equality movements often seek to favorably compare themselves with the racial civil rights movement. But that false comparison is yet another issue.

This is the just latest ideological battlefield in the culture wars.

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