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Where did Indiana law come from? A brief history of religious freedom (ANALYSIS)

United States map with Indiana highlighted.

(RNS) Before this week, few people had heard of the Religious Freedom Restoration Act or could even pronounce its acronym, RFRA (Riff-ra), even though there’s a federal version of the law and 20 states have passed their own versions. Is it a “license to discriminate,” as liberals claim, or a “protection of religious freedom,” as conservatives claim?

In fact, it’s both.

Demonstrators rallied at the Supreme Court on June 30, 2014 before the justices sided with the evangelical owners of Hobby Lobby Stores Inc., ruling 5-4 that the arts-and-crafts chain does not have to offer insurance for types of birth control that conflict with company owners’ religious beliefs. Religion News Service photo by Heather Adams

RNS photo by Heather Adams

Demonstrators rallied at the Supreme Court on June 30, 2014, before the justices sided with the evangelical owners of Hobby Lobby Stores, ruling 5-4 that the arts-and-crafts chain does not have to offer insurance for types of birth control that conflict with company owners’ religious beliefs. Religion News Service photo by Heather Adams

There are three sources for Indiana’s RFRA: the religious exemptions movement, RFRA’s own history and, most recently, the Hobby Lobby case.

First, the idea of religious exemptions to civil rights laws is as old as civil rights laws themselves. In the 1970s, for example, conservative Christian organizations demanded exemptions to the Civil Rights Act and similar laws. The most famous of these was Bob Jones University, which maintained race-based admissions and housing policies all the way into the 1990s. The Supreme Court dealt these organizations a blow, however, when it upheld an IRS decision to strip Bob Jones of tax-exempt status.

Religious exemptions are also widespread in the area of reproductive health. Doctors, nurses and even entire hospitals are routinely exempt from having to perform or assist in abortions. These exemptions are now being extended to pharmacists not wishing to dispense contraceptives — and, most famously, to corporations not wanting to pay for insurance coverage for them.

Such exemptions are always a matter of scope. Nearly everyone would agree, for example, that a priest should be exempt from civil rights laws; he should not have to solemnize a same-sex wedding or an interreligious one, if doing so is against his religious belief.

But what about a public pavilion owned by a church that advertises itself as available for rent? Or how about a privately owned hotel not wanting to rent a room to a gay couple? These are all actual cases, and they point out how religious exemptions are a matter of degree.

The second root of Indiana’s crisis is RFRA itself. In 1993, the federal RFRA was passed in response to a Supreme Court case that found Native Americans guilty of drug laws for having ingested peyote. This seemed like the wrong result to a wide variety of people, and so when RFRA passed, it was nearly unanimous — supported as much by Democrats as Republicans.

What RFRA did — in the federal and later in state versions — was change the way courts interpreted competing rights claims. It replaced the balancing test that the Supreme Court had used in the Native American case with a much more exacting standard, requiring a “compelling state interest” justifying a ban on religious practice, an action “narrowly tailored” to that interest, and the “least restrictive” means of pursuing it.

This is a very high standard, and it’s meant to block all but a few government actions.

Until the last few years, though, RFRA cases were victimless. No one is personally affected if the Native American uses peyote, a military officer wishes to wear a yarmulke or a church seeks a zoning variance. None of these carried what lawyers call “third-party harms.”

That all changed in the 2000s, as conservative activists began using RFRA in a new way: as a sword, rather than a shield. Now, they argued, my religious belief should trump your civil rights. Gays and lesbians may see the florist’s refusal as discrimination, but she sees it as freedom of religion.

These two streams — religious exemptions and RFRA — converged in the Hobby Lobby case, decided last year.

In that case, the Supreme Court decided, for the first time, that RFRA could be sword as well as shield. A corporation could deny someone their legal rights, and then claim religious freedom as a defense.

That was a game-changer. With the court’s imprimatur, a host of lawsuits were filed around the country using RFRA to defend against claims of discrimination. Those lawsuits are still ongoing.

Which brings us to Indiana. Yes, as Gov. Mike Pence has said many times, 19 other states also have RFRAs. But Indiana is only the second state, after Mississippi, to pass one in the new, post-Hobby Lobby reality.

Arizona’s governor vetoed that state’s version, Oklahoma dropped its; and Georgia and Texas appear poised to reject their versions. Late Tuesday afternoon (March 31), though, Arkansas passed its own RFRA measure, which will now go to Gov. Asa Hutchinson for his signature or veto.

Now, is Pence right that this law is just about protecting religious freedom? Or are his opponents right that it’s about legalizing discrimination?

Both are — but the opponents more so.

On the surface, Pence is correct. The law prohibits government restriction of religious exercise without a compelling state interest.

In reality, though, this law and others like it have been advanced by social conservatives who repeatedly give examples about LGBT people: a photographer in New Mexico found guilty of civil rights laws for turning a gay couple away, a baker in Colorado, a florist in Washington, that church-owned pavilion in New Jersey. These are all actual, not hypothetical, cases.

And how you see them depends on whose perspective you want to take. The plaintiffs are generally sincere; that New Mexico photographer really felt that her religion forbade her from “participating in” a same-sex wedding. How can the government force her to violate her conscience?

Then again, from the perspective of the customers she turned away, the sting of discrimination is real. And what kind of message would it send, allowing “No Gays Allowed” signs to be posted around town? And why wouldn’t the same logic apply to Jews, African-Americans, women — anyone, really?

One resolution to this conflict might be to remember that corporations have to play by the rules of the marketplace. This is not what the Supreme Court said in Hobby Lobby, but it might help the photographer who feels sincerely torn. Render unto Caesar what is Caesar’s, the Bible says — anti-discrimination law included.

Moreover, taking pictures does not make one complicit in the marital act. Just as you’re not responsible if your client turns out to be a thief, you’re not responsible if your client turns out to be a “sodomite” or sinner of any other kind.

Really, though, the Indiana case is about politics, not religious philosophy. Pence is an ambitious politician, and he gave his conservative backers what they wanted. Now it all may backfire. Seventy-five percent of Americans oppose discrimination against LGBT people, even though only 55 percent support same-sex marriage. Moreover, while America remains a uniquely religious nation, it also respects the rule of law. And letting people discriminate because of religion is not what the rule of law is about.

(Jay Michaelson is a columnist for The Daily Beast and author of the 2013 report “Redefining Religious Liberty: The Covert Campaign Against Civil Rights.”)

YS/MG END MICHAELSON

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Jay Michaelson

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  • “Really, though, the Indiana case is about politics, not religious philosophy.”

    That is like saying Nuclear War isn’t about Nuclear weapons, but politics.
    But if there were no nuclear weapons….it wouldn’t be “nuclear” war.

    Religions are just bad ideas about reality from ancient times. How much more evidence to we need to demonstrate the harsh judgements and hatreds in Christianity?

    “In the name of Jesus..keep away from him!” (2 Thess 3:6)
    “CURSE HIM” – (1 Cor. 16:22)
    “Deem them unworthy” – JESUS (Matt 10:13)

  • Christians love to point fingers and moralize because it is far easier than living by the teachings of Jesus to love thy neighbor and inviting everyone to your table.

    Why be a good person when you can point out what is wrong with others?

  • The author leaves a lot unsaid in his article. I will presume the reasoning behind that is either political, ignorance, or wanting to give bloggers something to write about. The propaganda media fails to mention what the author could have but did not. The difference is why the media fails to give the facts. Fact: The Religious Freedom Restoration Act of 1993 was a Bill introduced by Congressman Chuck Schumer-D for Democrat & in the Senate it was introduced by Ted Kennedy- D. Both the Senate & Congress had a majority of Democrat representatives.
    To see the signing of the Restoration Act, go to: thefederalist.com website to see & hear Vice President Al Gore eloquently explaining why all Democrats & Republicans brought this Bill to be signed by President Clinton that day.
    Don’t let anyone fool you (THIS IS A RIGHT-WING RELIGIOUS CONSPIRACY) Pres. Obama needs to take Executive Action to rewrite the Constitution to eliminate Freedom of Religion- period. PS God bless…

  • The RFRA was badly flawed law to begin with. It telling that its progeny is even worse. Instead of unintended consequences which are damaging to 14th Amendment equal protection, you have intentional ones.

    Instead of loopholes which could allow someone creative to come up with a religious argument to refuse compliance with laws of general application, they make it explicit. These state laws are designed by their nature to make Christians laws unto themselves.

    These laws do not mention “free exercise” of religion, they have vague notions of religious expression. Religious expression and free exercise of religion are not synonymous. Prior to RFRA, legal religious expression did not include a right to harm others in the name of your faith. Now it can include a right to attack rights of others or limit access to government benefits. Hobby Lobby was not engaging in free exercise of religion. Neither are bigoted business owners.

  • It has been about 3 days since this story broke and now it is almost over. Other states will follow in the footsteps of Indiana, gays and liberals will protest, who cares? The war against God continues.

    Fools cause children to sin. A fool stops sinning when it dies (and they always die).The Word of God endures forever and fools cannot change this. The death of a fool is a blessing for the living.

  • Democrats HATE Christians and Orthodox Jews and Muslims.

    That the Democratic Party HATES especially Christians is no longer something that can be hidden.

    While the GOP is hardly an example of an ideology that fits the Gospel, Republicans are not foaming at the mouth Christian haters.

    Democrats certainly are.

  • I would challenge you to look closely at the behavior of your fellow Christians. They don’t seem to do much besides point fingers and look for excuses to treat others badly.

  • The talk of shields and swords doesn’t help much. Hobby Lobby would argue that they used RFRA as a shield against the ultimate wielder of the sword – a government that chose to mandate something that was morally offensive. That is exactly what RFRA was intended to deal with.
    You seem to be saying that Hobby Lobby was attacking their employees with a sword by not choosing to cover certain types of birth control in a health insurance plan.
    I’d rather face Hobby Lobby’s alleged sword wielding than the government’s actual sword wielding.

  • Wrong – I’m a Democrat and a Christian, most of my friends are Christians, and I don’t hate any of them. I’ve never experienced the “hatred” to which you refer from any of my Democratic friends or from my Republican friends. Perhaps you are projecting here – or else you’re pouting because you’re not getting your way!

  • So, tell me, can you imagine a business believing that interracial marriage was morally offensive? Say, a hotel or a restaurant or a bakery. Would it be legal and appropriate to permit those businesses to reject providing commercial services to the interracial couple for their wedding? If you think that’s ok, then what is to prevent a restaurant or department store from forbidding Jews or Muslims or African Americans (or European Americans!) from entering their place of business? Can you see the connection to the segregation and discrimination in our past? If you really want to, you could come up with all sorts of “religious exemptions” for things you just don’t like – women, older people, younger people, redheads, people with disabilities, people with accents, etc. That’s not a free and open society (or marketplace!).

  • The Washington Post’s Fact Checker column wrote a far more fair and useful piece than you. If you think it’s a “sword” to ask that you not be bankrupted for declining to be complicit in a ceremony you consider sinful, then there’s no convincing you. RNS continues its proud tradition of promoting social liberalism above all else.

  • What about the flipside??

    Do you think an African-American baker should be forced to make a cake that reads “KILL ALL BLACKS” to provide for a gathering of Ku Klux Klan members??

    Should a gay caterer be forced to provide food for a party at the Westborough Baptist Church??

  • “If you think it’s a “sword” to ask that you not be bankrupted for declining to be complicit in a ceremony you consider sinful”

    Its called justice. To hell with them and their supporters.

    If you are so uncivil, bigoted and stupid that your only course of action in dealing with a given situation is to discriminate against the customer, you deserve bankruptcy. You don’t deserve protection of law. You don’t require a right to discriminate in your businesses. You need to get the hell out of open commerce. Obviously you are so overcome with your religious fervor that you cannot operate within its rules sanely.

  • We had this situation already. The sane response is to bake the cake and let the customer make the message. Not to discriminate against the customer. A gay caterer can always outsource the work to someone who will do it and charge the customer a premium for it.

    There is always a course of action to take in these nonsense hypotheticals which does not involve discrimination against the customer.

    Bigots, Klansmen, Nazis and Doc Anthony all are entitled to carry out commercial transactions for businesses open to the public. If they want special requests which may be offensive, there are sane ways to deal with it besides saying, “GTFO of my store”.

  • “I would challenge you to look closely at the behavior of your fellow Christians.”

    He might have to go to a church service for that, Larry 😀

    But it’s hard to see them up close when you are so righteously in line for that Theory call Transubstantiation while your less righteous brothers must remain seated.
    Btw, didn’t Paul say:
    I do not praise you, since you come together not for the better but for the worse.
    For in eating, each one takes his own supper ahead of others; and one is hungry and another is drunk. What!
    Therefore … when you come together to eat, wait for one another. But if anyone is hungry, let him eat at home, lest you come together for judgement.

  • Look if the WBC comes to me for posterboard to spread more of their hateful messages, I demand my right of free association to say, “No, get the hell out of my store.” I will not help facilitate their hateful bigotry in any way, and I should not be FORCED to facilitate it in any way I do not wish.

    Also flip the situation of the caterer around yet again. Are you saying that a Christian wedding photographer has the right to charge premium costs to gay customers to outsource someone else to shoot their wedding?? Because then you’re just trading one form of discrimination for another.

    Personally, I’d rather have the wedding photographer say “no” to shooting pictures at my Baha’i wedding rather then passive-aggressively charging me more for his services. I’d like the bigots out in the open so I can boycott THEM, rather then providing me with overcharged or sub-par services.

  • The WBC are more than welcomed to buy posterboard from any seller on the open market. They are doing nothing wrong. If doing business to customers in a reasonable manner is “being forced”, you should not be open to the general public.

    Your right of free association in business does not cover discriminatory conduct any more than it did to people opposing the Civil Rights Act in 1964, who wanted to keep blacks out of their restaurants and shops. People used that same argument in favor of discriminatory conduct 50 years ago. It was crap back then, it gets no better now.

    If you can’t figure out a way to turn them away without resorting to discriminatory conduct, you are SOL. You don’t get legal sanction to do something which is inherently harmful.

    Avoiding discriminatory actions is your only choice. The Christian can easily say, “I am not used to shooting gay weddings so I will need to bring this person in if you want my business to do it”. Plausible, non-discriminatory.

  • Fourth Valley,

    “What about the flip side?…should a gay caterer be forced to provide for westboro…”

    Of course. And when Hell freezes over that is exactly what kind of problem those gays will have.

    Non-descrimination trumps freedom of religion. That is why Jim Crow Laws were thrown out.

  • “taking pictures does not make one complicit in the marital act.” Hold up.

    The photographer isn’t talking about complicity – she’s talking about involvement.

  • It seems as though the basic Christian tenet of “speaking the truth in love” (Eph 4:15) somehow gets twisted into “hatred” & “bigotry.” Any “Christian” who sits idly by, and watches soul after soul go down into the eternal abyss, and says nothing to them, is no Christian at all. What did Jesus say, “If your brother or sister sins, go and point out their fault, just between the two of you. If they listen to you, you have won them over.” Matthew 18:15. That is all that’s going on here.

  • Seeing what Judas Iscariot expounded upon and was an activist about, he if he lived today he would have identified with the Democratic Party as a Progressive, Liberal and of course, a secularist.

    Jude wrote an entire letter that was included in the New Testament about lefties permeating The Church:

    “For certain individuals whose condemnation was written about long ago have secretly slipped in among you. They are ungodly people, who pervert the grace of our God into a license for immorality and deny Jesus Christ our only Sovereign and Lord.”

    So much for your Democratic buddies cruising Christian Churches.

  • This is about the attack on Christians by the Democratic Party.

    This isn’t even veiled anymore. The hatred that the DNC has for Christians (you know the ones like the Apostles that followed the teachings of Jesus too, including marriage as immutably man and woman/husband and wife) is now a recruiting tool for anti-Christian bigots.

  • And Larry shows the fangs of the anti-Christian movement known as the Democratic Party perfectly !!! You know, the “tolerance and diversity” crowd.

    Here’s some history of the movement in Genesis 19: Notice that in the “story” of the Sodomite mob, they demanded that Lot be accepting of them, their sexual orientation and supportive of their deeds.

    And when Lot refused, he was to be financially ruined.

    “Get out of our way,” they replied. “This fellow came here as a foreigner, and now he wants to play the judge! WE’LL TREAT YOU WORSE THAN THEM.” They kept bringing pressure on Lot and moved forward to break down the door.

    Lot must have owned a pizza shop too.

    No question that many freethinkers were in Sodom’s mob.

    Welcome to history repeat time!

  • The money made by Christians that are forced to submit to gay fanatics’ intolerance, will be “tithing” some of that money to their Church . . . that will always follow Christian truth that marriage is a man and woman/husband and wife.

    Freedom is a wonderful thing.

    And freedom in the marketplace, as homosexuals flood Christian businesses to try to intimidate them, will actually help fund Churches that will continue to free people’s minds from the bigotry and debauchery and hatred inherent in godless secularism.

  • Troll says what?

    Religious freedom means nobody ever has to give a flying crap what you or anyone else has to say about God’s word under compulsion of law. Its a concept you seem to have trouble with.

    Sorry Christian bigots one and all, if you think your only course of action in a business when dealing with a potentially distressing situation is to engage in discrimination, you are too stupid to be in open commerce.

    There is always a course of action to take, if you are legitimately seeking to serve the public and balance your religious belief, that does not involve discrimination against customers. What you guys are really telling me is your objections are bullcrap. You just want cheap excuses to discriminate against gays in your business. License to act badly in public.

    This law is an answer to a problem WHICH DOES NOT EXIST and creates new problems which are widely seen.

  • The unspoken part of these “religious freedom” laws is how they are causing massive economic damage to the states of these bigoted politicians. It is already causing a political split among Republicans between the Bible thumpers and the Corporate lackeys.

    The Republican mayor of Indianapolis has already called Gov. Pence an idiot for signing this law. Pretty much anyone interested in economic development sees these “religious freedom” laws as garbage. Remember corporate American largely denounced Hobby Lobby’s abuse of religious belief. They continue to rail against these “appease the bigots” bills.

  • So you are telling me you can cross reference excuses to act badly to others. All it tells me is you are a sociopath with limited social sanction. It certainly doesn’t show you Christians like yourself are a good and moral people. Your support of legalized discrimination proves you are not.

  • AW,

    “Bigotry…godless secularism”

    If it is not bigoted to preach Jesus to non-believers
    It cannot be bigoted to preach against Jesus to believers.

    You have confused ideas with skin color. Religions are ideas – not people – and ideas do not have rights of their own. Only people have rights.

    Don’t slander secular people as if they are bigots. We are not bigots.
    We just think there is no good reason to believe in Jesus, Allah or any other gods and we have the right to say so.

    Jesus and Allah are just an ancient, foolish philosophies and they bring ruin and misery to every society where they are tried.

  • AW,

    “anti-Christian bigots.”

    I’ve already told you. We are not bigots.

    If it is not bigoted to preach Jesus to a non-believer
    It CANNOT BE BIGOTED to preach against Jesus to believers.

    Meanwhile it is YOU who are bigoted:

    “Homosexuals must be killed” – (Leviticus 20:13)
    “Execute them in front of me” – JESUS (Luke 19:27)

    Despicable Christianity – it runs around calling everyone else bigoted for simply pointing out that Christianity is the bigoted bully on steroids.

    You bully!

  • I don’t see how letting a person know how dangerous their actions are is an excuse to “act badly to others.” Larry, if you smoked multiple packs of cigarettes per day, and I advised you to start making down payments on a coffin, would that be hateful? Sadly, we will all face the same Just Judge, and I hope he is merciful to all of us.

  • People supporting legalized discrimination are not moral. They may be good Christians, but hardly good people.

    You want excuses to be hateful, malicious and self-righteous. Good luck with that. There is no compelling need to take such people seriously.

  • Give it up, Greg. As you can see, you’re attempting to converse with a magic 8 ball, and will invariably receive the same half-dozen or so pre-set answers.

  • Shawnie, Yes, spin the wheel, and get a canned response. The interesting is how the gay lobby is attempting to equate a “behavior,” with fundamental human rights, which are intrinsic to the human person, that fundamental dignity which comes from God (Genesis 1:26-27). That is what people of color were afforded, and rightly so; however, the behavioral choices we make in life are not part of that human dignity we have received from Almighty God. Our behavioral choices merely build upon our human dignity, or detract from it.

  • So show of hands, who here is trying to deliberately bar access to people for goods and services in open commerce on the basis of religious animosities towards a group of people?

    To enact segregation in businesses.

    Right.

    “that fundamental dignity which comes from God”

    Unless you are gay, atheist, of a different sect, or a different faith, then all bets are off. You guys are such bald-faced and unconvincing liars Your actions speak louder than your parroting of dogma.

    You want a license to hate and act badly to others, Like many sociopaths,you think recitation of arbitrary codes equals correct and acceptable behavior. “morality” merely being a means to an end. Not an actual way to conduct yourself to others.

  • Hey Greg, you got two of auto-responses in one post! Good job!

    While Larry certainly isn’t swift on the uptake, I can’t believe that after all this time she still doesn’t get the difference between discrimination against a PERSON and discrimination against an ACTIVITY into which one is being pressured to participate. I think she DOES get it, and simply repeats the strawman incessantly in hopes of convincing the ignorant/unintelligent. After all, the frequency with which she yells Liar says volumes about her own honesty.

  • Re: “If you think it’s a ‘sword’ to ask that you not be bankrupted for declining to be complicit in a ceremony you consider sinful, then there’s no convincing you.”

    There are many kinds of “sins” to which nearly all Christians have no objection, and within those, many kinds of ostensibly “sinful” marriages. Remarriages after divorce, for instance. Or interreligious marriages. Or marriages conducted by justices of the peace rather than clergy. Or marriages of non-virgins. In some cases, interethnic or interracial marriages are considered “sinful.” And on it goes!

    Curiously, in spite of there being so many different kinds of “sinful” marriage, I have yet to hear about any Christian baker, florist, etc. who won’t take part in them. The only such objections are to gay marriage. Now, why is that? Is it because gay marriage is somehow magically “worse” than all those other kinds of “sinful” marriage?

    Or is it because these folks are afraid of gay cooties or…

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