The white hot debate over Indiana adopting a Religious Freedom Restoration Act (RFRA) is only the beginning of a national debate about public policy and the role of religion. At stake are two founding principles of this nation’s government — equal treatment under the law for all people and religious liberty for all. Where the nation will come out is anybody’s guess.
Until recently most observers believed the battle would be fought in the courts. Several cases are already working their way to the U.S. Supreme Court. A photographer in New Mexico, a baker in Colorado, a florist in Washington — all refused services for same-sex weddings based on sincerely held religious convictions that same-sex “marriages” are wrong. Yet all have been found guilty of violating civil rights laws.
Even a church in New Jersey faces legal trouble because it refused to rent its pavilion for a same-sex wedding but did rent to heterosexual couples for weddings.
Observers anticipated careful consideration of the implications of legal concepts about equal protection and due process as they went up against free exercise of religion and the church autonomy doctrine. What Indiana demonstrated is that the battle will be a political battle, not a legal battle, complete with demagoguery, economic blackmail, polarizing rhetoric, half-truths and a win-at-all-costs mentality.
‘Compelling interest’
Until recently RFRA was a noncontroversial issue. Congress adopted the first RFRA law in 1993 by a 97–3 vote. The law stated government could not burden religion without a “compelling interest.” And when there was a “compelling interest,” government could burden religion only in the “least restrictive” means.
When the Supreme Court ruled in 1997 (City of Boerne v. Flores) that RFRA did not apply to most state and local laws, a movement started to provide citizens the same protection against state and local laws they enjoyed against federal laws.
At last count 20 states (including Alabama) have RFRA laws and 13 other states have court rulings putting RFRA-like protections in place. RFRA enjoyed bipartisan support and was adopted with little public fanfare.
All of that changed with the famous Hobby Lobby case. In a 5–4 decision the Supreme Court ruled June 30, 2014, that closely held businesses have religious liberty rights just as individuals do. Some concluded the ruling gave the right to photographers, bakers, florists and others to refuse services that violated their religious beliefs.
Accommodating religious beliefs through public policy is not new. Doctors, nurses, pharmacists and others routinely are exempt from actions related to abortions which they judge violations of their religious beliefs. Businesses such as faith-based hospitals are exempt from providing abortion services. Extending this accommodation to others seemed a natural extension of the principle.
But when does religious liberty become discrimination? Should a family-owned restaurant be allowed to refuse services to gays or lesbians? Should hotels be permitted to refuse them service? Should a business owned by a Muslim of the Wahhabi sect be allowed to refuse services to women unaccompanied by men because a woman alone violates religious belief? Where does the practice stop?
If nondiscrimination is the policy, some have asked if that means a T-shirt company owned by an African-American has to print shirts with the Ku Klux Klan’s burning cross symbol? Does it mean a Jewish gift shop owner has to put Nazi symbols on coffee cups or that Muslim-owned businesses have to sell crosses?
As University of Notre Dame law professor Richard Garnett said, “It is not right to see RFRA as a response or a reaction to what’s happening with sexual orientation discrimination or marriage. It is bigger than that.” RFRA is about religious liberty for all.
Stanford University law professor Michael McConnell said in an interview that “in the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers or anyone else.”
That is a point Indiana Gov. Mike Pence repeatedly made in news conferences. State-level RFRA laws around the country have never been used to undermine local nondiscrimination laws. Some have attempted to make that argument but the government’s “compelling interest” of nondiscrimination has always trumped the religious liberty defense.
It will be interesting to see if that pattern continues in light of the Hobby Lobby decision.
Expecting understanding and grace to prevail in the political debate about the relationship of religious liberty and equal treatment under the law is unrealistic. Those opposed to religious liberty seem bent on stamping out all dissent.
As Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, said, “The idea that sexual freedom trumps everything else and that it ought to be able to pave over the consciences of anyone else — that is what we are seeing all over the country right now.” That conclusion is bolstered by voices calling for repeal of RFRA laws as if religious liberty is an outdated value to be discarded.
Such hostility should be expected whenever the principles of the gospel are taken into the public square. In 1612 when Thomas Helwys famously wrote King James I of England that “The King … hath no power over the moral souls of his subjects,” he was jailed and died in Newgate Prison. Yet the principles for which Helwys died — religious liberty and separation of church and state — are still true. Neither government nor popular culture should ever force one to violate the principles of conscience.
The Christian faith does not endorse discrimination. The Christian faith does call for living by the teachings of Jesus even in the public square. Balancing government’s “compelling interest” and every citizen’s right to religious liberty will be a challenging task.
The confrontation in Indiana is just the beginning. Make no mistake, unless Christians tenaciously contend for religious freedom in this debate, it may be lost.
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