The state of Indiana has come under fire for passing their version of the federal Religious Freedom Restoration Act. RFRA, as it’s called, was passed in response to court cases that eroded First Amendment protections of the exercise of religion. Religious freedom used to be judged on a case-by-case basis, considering whether each law had specific exemptions for religious groups. Charles Schumer, Democratic Senator from New York, introduced a bill in 1993 to set a standard on how religious freedom cases should be considered; using the same standard that another First Amendment protection – freedom of speech – was adjudicated. I’ll get to the details of that standard in a moment. The bill passed the US Senate 97-3, and by acclamation in the House. Bill Clinton signed it on November 16, 1993. Today, that same action at the state level is being called “bigoted” by Democrats.
States have been doing this ever since a Supreme Court decision said that the federal RFRA didn’t apply to the states. Most of the states that have one use language identical to the one Clinton signed. But while religious freedom used to be supported by Democrats, the rise of a particular protected class (and reliable Democratic voting bloc) changed all that; homosexuals. Once again, as we have seen so many times, politics trumps everything else for the Left, even, apparently, the Bill of Rights.
The fear being stoked is that this will allow Christian businesses to turn away gays just for being gay. Here are a couple of articles that are lists of frequently asked questions about the Indiana RFRA, and they explain, no, that sort of discrimination is not protected. If a Christian denies service to someone simply because they are gay, on the grounds that it’s a sin according to Christian doctrine, you would have a tough time proving those religious grounds in court. According to Christianity, we are all sinners. None of us are perfect. So that business owner would have to deny service to everyone, including him- or herself.
Participation, one way or another, in a same-sex marriage ceremony has been the typical cause of contention. And all of the examples that I’ve seen that have been taken to court are regarding business owners that would bake cakes, take pictures, or arrange flowers for a gay customer for any purpose other than a same-sex wedding ceremony. This is most definitely not discrimination against gays because they’re gay. It is, however, a religious objection to a ceremony that the business owner does not wish to participate in.
Let’s be clear. The purpose of these laws based on the federal Religious Freedom Restoration Act is simple. When you go to court, you can claim freedom of speech in your defense. You might not win, but it is something that you can claim and upon which you can make a case, and it must be taken into consideration. All RFRA does is ensure that you can claim freedom of religion, either individually or as a “closely-held corporation”, as the Supreme Court has put it. (If you believe corporations aren’t part of that freedom of religion, I wonder how you feel about corporations like the NY Times and CNN having freedom of speech.)
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”, and in the “least restrictive means of furthering that compelling governmental interest.” It does not invalidate all of Indiana’s other ordinances about discrimination based on sexual orientation. You don’t get to yell, “RFRA!”, and get magically exempted from them. This is not open season on anyone; gay, Jew, woman, what have you. And the best proof of that is that none of the states or the federal government, for almost a quarter of a century, have gone down anything like a slippery slope. All opponents of Indiana’s RFRA have are hypotheticals that have failed to materialize since 1993. The only discrimination so far has been against Christian business owners who would rather not participate in a specific ceremony, or in the instance of the Hobby Lobby Supreme Court case, not contribute to what they considered the taking of a life. This is not about gays, it’s about marriage. It’s not about women, it’s about abortion. It’s about religion, and the free exercise thereof, in spite of the efforts of celebrities like Apple’s Tim Cook, or actor Ashton Kutchner, to deflect blame and paint this as bigotry against individuals. It is denying a First Amendment protection that has been with us since the founding.
And I know there are Christians who would bake a cake or take pictures of a same-sex wedding ceremony. If they are OK with that, more power to them. There are different ways to make a moral statement. All I’m saying is that the government doesn’t get to decide how I act out my morality. They may decide that my morals don’t line up with community standards, but folks in Indiana can at least make the case that they otherwise could not, and the same case they could make today at the federal level.
President Bill Clinton, speaking at the 1993 RFRA signing, and about the Founding Fathers, said this, “And one of the reasons they worked so hard to get the first amendment into the Bill of Rights at the head of the class is that they well understood what could happen to this country, how both religion and Government could be perverted if there were not some space created and some protection provided. They knew that religion helps to give our people the character without which a democracy cannot survive.” Today, his party is now trying to sacrifice those protections on the altar of politics. I love the irony of that analogy, but I fear that they don’t fully understand the god they’re now serving.