Bridging Our Divisions

Demonstrators gather in Indianapolis to protest new religious freedom law.

It has been very discouraging to watch the acrimonious debate over religious liberty in Indiana and Arkansas. The passage of a Religious Freedom Restoration Act in these states sparked widespread protests over possible discrimination and exposed a deep divide in our nation on questions of marriage, civil rights for gay and lesbian people, and freedom of religion. One of the many unfortunate outcomes of this controversy is that these issues are now co-mingled in the public mind. Another is that the religious liberty “brand” has been damaged. As the respected Supreme Court litigator Douglas Laycock noted, “It is a disaster that religious liberty has become a partisan issue.”

It should not have been this way. When Congress passed the federal Religious Freedom Restoration Act, often referred to as RFRA, in 1993, the goal was to protect religious practices. The law, which passed by a large margin, states that if a person’s exercise of religion is “substantially burdened,” he or she must be excused from complying with the law unless the government can prove that it has a “compelling interest.” In 1997 the Supreme Court ruled that the statute did not apply on the state level. This led many states to pass local RFRA laws. Twenty-one have now done so, and 16 more have proposed legislation. Yet given the recent controversy, many of these states may not follow through.

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That would be unfortunate. Without guidance from legislatures, state courts may not have the resources to decide the questions that will inevitably arise regarding the protection of religious interests. The recent controversy has focused almost exclusively on Christian business owners who object to catering or photographing same-sex marriage ceremonies. Yet there are many other religious groups who need the protection of RFRA, especially minority religious groups whose practices may seem anathema to the majority of the population. A Muslim who wants to grow a beard in prison for religious reasons, for example, or a Sikh who comes to work with a small ceremonial dagger worn as a required religious practice deserves the protection of state law. 

The cases of Indiana and Arkansas provide contrasting examples of how to implement RFRA on the local level. Gov. Asa Hutchinson of Arkansas wisely waited to sign his state’s law until it was amended to reflect exactly the 1993 federal law. Indiana, meanwhile, made a tweak to the federal law by including businesses among those that deserve religious protection. The question of how to implement RFRA in light of the Supreme Court decision Burwell v. Hobby Lobby Stores, Inc., which extended religious liberty protections to closely held businesses, is a difficult one. One potential compromise, proposed by Mr. Laycock, is to protect those small-business owners who by the nature of their business would be required to actively take part in a function they find objectionable, while prohibiting larger corporations from taking advantage of these protections. 

Indiana’s law was amended on April 2 to prohibit discrimination against gays and lesbians in areas like housing and employment. The state’s Catholic bishops have raised important concerns about the wording of these revisions, which were obviously done quickly to quell a firestorm. The new language exempts churches and religious “providers,” but it is unclear where independent Catholic schools and hospitals fit in this new framework. Unfortunately, Indiana has no separate nondiscrimination law. Including this language in a bill meant to protect religious liberty only muddies the waters. A better approach would be to follow the lead of Utah, which recently passed a law to prevent discrimination against gays and lesbians. That law, which was supported by gay rights groups, was crafted in conjunction with religious leaders to ensure that their interests were protected. 

Passing legislation to protect the civil rights of gay and lesbian people, while simultaneously working to adopt RFRA legislation that mirrors the federal law, may be the only way out of this thorny patch. In the current political environment, passing RFRA legislation without a commitment to nondiscrimination laws will be perceived as a partisan initiative—in some cases, correctly. RFRA should not be used for political purposes. 

It is time to stop the partisan denunciations. Defenders of RFRA are correct that these laws are not initiating a new era of Jim Crow discrimination. But they should not be surprised when attempts to adopt this legislation in states that do not already have legal protections for gays and lesbians are greeted with suspicion. Meanwhile, defenders of civil rights should acknowledge that marriage is for many people much more than a civil ceremony and that it is unreasonable to expect people who hold deep religious beliefs to embrace society’s quickly changing norms in all areas of public life. We are still far apart on these issues, but perhaps if we stop shouting we can find a way to take a small step forward.

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Joshua DeCuir
3 years 4 months ago
This is a very good statement. It stands in contrast to the earlier blog post by Robert David Sullivan, which on my reading comes very close to questioning the good faith of many RFRA supporters (as an example - the use of scare quotes around religious freedom). Would be nice to have seen a greater diversity of views on this issue, in keeping with your editorial position.
Ellen Boegel
3 years 4 months ago
It is indeed unfortunate, but not unpredictable, that “religious liberty has become a partisan issue.” The legal adage quoted by Justice Ginsburg in her dissent to the Hobby Lobby case, “[y]our right to swing your arms ends just where the other man's nose begins,” is particularly apt to the current debate regarding state religious freedom laws. The situation is not helped by politicians and activists on both sides who do not take the time to understand existing laws nor the legislative reforms they endorse. Religious practitioners are protected not only by the First Amendment, but also by various state and federal laws. The Indiana constitution, for example, which was adopted in 1851, provides, “No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.” As recently as 2001, the Indiana Supreme Court interpreted this clause as meaning, “the police power of the State is limited and may not materially burden” the freedom of religion. In keeping with this preference for religious freedom, Indiana’s recently adopted anti-discrimination law specifically exempts churches and non-profit, tax-exempt religiously affiliated organizations, including schools. It also should be noted that whereas the federal RFRA does not apply to the states, another federal law, the Religious Land Use and Incarcerated Persons Act (RLUIPA), does protect religious practitioners from discriminatory zoning laws and unnecessarily burdensome correctional facility regulations. Just this year, the U.S. Supreme Court struck down a state prohibition on ½ inch beards grown for religious purposes. Federal civil rights laws also prevent religious, but not sexual orientation or gender identity, discrimination in housing, public accommodations, and employment (by businesses with 15 or more employees). Finally, Utah's anti-discrimination law, which preserves religious exemptions, covers housing and employment, but not public accommodations.
Martin Eble
3 years 4 months ago
Justice Ruth Joan Bader Ginsburg was not the author of “Your right to swing your arms ends just where the other man's nose begins”. Something more characteristic of her somewhat tortured legal logic is “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”, dissenting in Shelby County v. Holder (2013). Her judicial philosophy might be summed up as “if it works, do it.” Although it is often misattributed to to Oliver Wendell Holmes, Jr., it was written by Zechariah Chafee, Jr., in "Freedom of Speech in Wartime", 32 Harvard Law Review 932, 957 (1919). Zechariah Chafee, Jr. (December 7, 1885 – February 8, 1957) was an American judicial philosopher and civil libertarian. Attempting to apply this apparent aphorism in the real world immediately collides with the reality that in a society everyone’s interactions touch everyone else’s nose. This is the same logical fault fatal to the libertarian position - no one operates in a vacuum. The Founders of the United States of America, recognizing that, based their theories on the natural law - we hold these truths to be self-evident - rather than some version of “do your own thing”.
Ellen Boegel
3 years 4 months ago
My previous comment noted that Justice Ginsburg "quoted" the legal adage regarding arms and noses. She was not referred to as the author of the adage. Justice Ginsburg correctly attributed the quote to Mr. Chafee. The full sentence from her dissent reads as follows: "In sum, with respect to free exercise claims no less than free speech claims, “‘[y]our right to swing your arms ends just where the other man’s nose begins.’” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919)." Burwell v. Hobby Lobby Stores, Inc., __ U.S. __, 134 S.Ct. 2751, 2791 (June 30, 2014) (Ginsburg, J., dissenting). Perhaps John Donne, who certainly understood the need for religious tolerance, said it best, "No man is an island." J. Donne, Meditation No. 17, Devotions Upon Emergent Occasions.
Martin Eble
3 years 4 months ago
So we are Donne with that.
ed gleason
3 years 4 months ago
The reason why we have these false religious liberty issues popping up in Tea party state legislatures is that a very clever GOP operative found Koch Bros. money to fund GOP state legislature campaigns. His thesis was that state legislatures could be won by just a little funding these not well funded or even interesting local races. The result is we have a slew of right wing pest bills limiting voting rights, gerrymandering and Religious liberty bogus bill etc. in Red states. The GOP operatives smarts was why fund 100 million dollar losing GOP Senate campaigns in Ca and NY when we can sweep in Red state legislatures with minimum bucks. So we will now have a whole series of these pesty Red State bills even after Hillary wins the national Election. Best thing is to Ignore these pests and move out of the Red states if you get too annoyed; . they are all economic disasters anyway. ;;;a lot of job openings in the Bay Area.where culture war pests don't have any traction. We now have a culure war archbishop who just found out to get traction you need a better set the wheels. . . .
Martin Eble
3 years 4 months ago
Rather than a devious plot by the GOP and the Koch Brothers, legislation clamping down on abortions and restrictions of freedom religion seems to be characteristic of states with large populations who believe in God and go to church. Unfortunately these states are not predominantly Catholic. As to moving to the Bay Area - plan on high property prices, high taxes, and no water. Two minutes showers work better if shared with others, and it is just the area for doing that. Archbishop Cordileone has been the subject of very expensive PR campaign (Sam Singer’s firm) for putting language in Catholic teaching faculty handbooks taken directly from the Catechism of the Catholic Church. Since this campaign has not had the desired result, and support of the archbishop grows among people who actually want their children in Catholic schools, not secular schools in Catholic facilities, a full-page ad was run in the April 16, 2015, San Francisco Chronicle asking Pope Francis to oust him. The names signing it were all individuals with track records opposing Catholic teaching, some of them wealthy and supporting the related PR campaign. http://www.firstthings.com/web-exclusives/2015/03/who-is-paying-sam-singer It is unlikely the Holy Father, or Archbishop Cordileone, will cave to this sort of thing, wheels or not.
Matt Nannery
3 years 4 months ago
The federal RFRA law signed by Bill Clinton was put in place because Native Americans feared persecution for using certain drugs in religious ceremonies. The current raft of state-level RFRA is very different: it is to grant people who would discriminate exemptions from public accommodations laws. The federal law was drafted to protect people from discrimination. The state laws were drafted to protect people who wanted to discriminate. Freedom of worship is already protected by the 1st Amendment. Marriage will very likely soon be protected by the 14th.
Martin Eble
3 years 4 months ago
While it is correct that the cases which brought the need for the legislation, the Religious Freedom Restoration Act, involved native Americans ( Lyng v. Northwest Indian Cemetery Protective Association (1988) and Employment Division v. Smith, 494 U.S. 872 (1990)), the legislation itself was promoted by such disparate groups as the American Civil Liberties Union, the Traditional Values Coalition, the Christian Legal Society, the American Jewish Congress, the Baptist Joint Committee for Religious Liberty, and the National Association of Evangelicals. The purpose of the legislation, to reinstate the Supreme Court's "Sherbert Test", prohibiting laws which burden a religion, was fundamental to every religious and political persuasion. This is demonstrated by the unanimous favorable vote in the House and the 97 to 3 vote in the Senate. However, the Federal legislation does not apply to the states.
Matt Nannery
3 years 4 months ago
The federal RFRA law signed by Bill Clinton was put in place because Native Americans feared persecution for using certain drugs in religious ceremonies. The current raft of state-level RFRA is very different: it is to grant people who would discriminate exemptions from public accommodations laws. The federal law was drafted to protect people from discrimination. The state laws were drafted to protect people who wanted to discriminate. Freedom of worship is already protected by the 1st Amendment. Marriage will very likely soon be protected by the 14th.

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