Judging by the look on his face or the tone in his voice as Indiana Governor Mike Pence tried to fend off some decidedly pointed questions from ABC’s George Stephanopolous that Sunday in late March, you would have thought that the Governor had found himself in the middle of a real firestorm and not just the verbal one that had accompanied Indiana’s passage of its very own Religious Freedom Restoration Act (RFRA) earlier that month. Doing his best to defend a statute that a substantial number of American citizens, both individual and corporate, were convinced provided a license to discriminate against members of the LBGTQ Community, Governor Pence kept telling us two things. First, RFRA statutes are common. The federal government passed one as far back as 1993 and that one passed almost unanimously and was signed by none other than Bill Clinton. Nearly 20 states have followed suit. Barack Obama, he reminded us, had voted for the Illinois version of the law. Second, the law was not intended to permit discrimination. It was intended to protect the freedom of Americans of deep and abiding religious faith to act on that faith as is their first amendment right. The first of these arguments is disingenuous. The second pretty much glides past disingenuous to dishonest.
Start with Governor Pence’s contention that RFRA statutes are common. Yeah. But consider the history of the first one, the federal statute that everybody loved, even Bill Clinton. It came about, and it came to get such universal support because most people believed that the Supreme Court had significantly diminished religious freedom, hence the name of the law. To keep it short, from 1963 to 1990 if a citizen challenged a government action as interfering with his or her religious freedom, the government taking that action had to prove that it had a “compelling state interest” (usually public health or safety) that required taking that action despite its impact on the challenging citizen’s religious liberty.
In 1990, the U.S. Supreme Court – in an opinion written by relative newcomer to the Court, Antonin Scalia – did away with the “compelling state interest test” in favor of a far less restrictive test requiring only that the action in question have a legitimate secular purpose and be administered in an even handed way. It did not, in other words, single out religion. The federal RFRA was to restore the “compelling state interest test.” Nothing more. The state versions of RFRA were to do the same because the Court held that the Federal RFRA did not apply to state actions. To add to the Governor’s disingenuousness, virtually every one of the RFRA’s passed in the last 20 years were passed before the Supreme Court granted religious liberty to certain kinds of corporations in the Hobby Lobby case. If corporate personhood conveys religious liberty rights on “closely held corporations” of the size and scope of the Hobby Lobby folks, it surely conveys those same rights on a small bakery, a floral shop, or a free-lance organist, incorporated or not. That means that Indiana’s RFRA really is cut out of a different cloth.
Governor Pence might not have been aware of the history of the various RFRA’s floating around, but he had to know that one of the underlying purposes of Indiana’s version was to allow people – corporations are people remember – to act on their faith in the marketplace, even if that faith said that some people could not or should not be served in or by their place of business. He held the bill’s signing ceremony in private, surrounded by what one Indiana journalist referred to as a who’s who of Indiana religious conservatives. Beyond that, no discussion of the law by its supporters can go more than three sentences without reference to the example of the baker who doesn’t want to prepare a cake for the wedding of two gay people. Don’t forget that supporters of the law raised almost $1,000,000 on line to support an Indianapolis Pizzeria on record as having said that it would not cater a gay wedding. The intention of the law may have been the protection of religious freedom, but in the minds of a great many people in Indiana – possibly including its Governor – the freedom they expected to see exercised was the freedom to treat the LGBTQ Community differently than any other community. Sounds a bit like discrimination, doesn’t it?
The weakness of Governor Pence’s arguments notwithstanding, there is a real issue of religious freedom to be considered here. Millions of deeply religious Americans want to be able to live their respective faiths in all aspects of their lives, even their work/business lives. But letting them do so creates so many problems for a society that recognizes rights in addition to religious rights.
In some sense we have to start with ground zero, when does a belief system become a religion due the protections of the first amendment? What about the guy in Indiana who wanted to proclaim himself Archbishop of the Church of Cannabis? But far more to the point, of course, what about the rights of others, including that most fundamental right, equal protection of the laws? Our hypothetical baker can’t deny a wedding cake to an African American couple, a Muslim couple, a couple in which one of the two is in a wheelchair. And on it goes. There were once plenty of wedding cake bakers who would have refused a cake to a mixed race couple and done it on religious grounds. We decided they cannot. We are pretty far along in the process of deciding that today’s bakers cannot deny a cake to a gay couple. I fully realize that an awful lot of truly religious Americans believe that to be forced to do that will violate their religious rights. But should their religious rights trump the human rights of others? My answer remains No. I understand the conflict, but alas, I see no middle ground.
Enough out of me.