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Of two minds (at least!) about RFRA

Abigail_Adams

Abigail Adams wrote: “I’ve always felt that a person’s intelligence is directly reflected by the number of conflicting points of view he can entertain simultaneously on the same topic.”

If that’s so, I must be a freaking genius.

As I have read, watched and listened to the uproar over Indiana’s first pass at a Religious Freedom Restoration Act, my thoughts and feelings are sensitive to people at each pole of the argument.

My overwhelming emotion is disgust, however, at some of the laziest, alarmist, lowest-common-denominator reporting that I think I’ve ever had the misfortune to consume. True, some of the most ignorant, offensive vitriol comes from citizen “journalists,” but it is many of the people who actually get paid to do this work (I cannot bear to refer to them as “professionals”) who are the greatest offenders.

I do not know how many times I have read this week: “Indiana Law Permits Discrimination Against Homosexuals.”

Wrong.

Additionally, I have read: “IN’s RFRA Same As Longstanding Federal Statute.”

Equally false.

It’s gratifying to see many knowledgeable parties enter the debris field created by the initial disaster. Note to so-called reporters: These are the people you should have interviewed before you wrote your initial stories.

Mrs. Adams’ husband once stated: “Facts are stubborn things.” Here are a few:

Passed in 1993, the federal RFRA states that the government cannot impose laws/regulations that “substantially burden” an individual’s freedom of religious expression.

In 1997, the U.S. Supreme Court ruled that the federal RFRA overstepped, prohibiting states to regulate their lands for religious purposes. That decision has led to several states passing their own versions of RFRA in order to toss out the bath water but keep the baby.

Law professor Josh Blackman writes that, as signed March 26, Indiana’s law has broadened the federal statute to include corporations as well as individuals. It has changed that key phrase to “likely to be substantially burdened.” Additionally, it states that religious freedom can be a defense in judicial/administrative proceedings even if the government is not a party.

The elephant in the room is one of the hottest buttons in America’s culture today: gay rights. Among other arguments, people of bad and good faith alike have said for a while that granting equal protections to LGBT individuals sets a precedent of protecting conduct rather than personhood.

All these state RFRAs aren’t popping up just to protect Native Americans’ sacred lands and peyote ceremonies. There’s no doubt that cases with gay plaintiffs and Christian defendants are coming that will test the laws that have broadened the scope of the federal RFRA.

Tested. That is a very important word, and is vital to clarify the incorrect assumptions of Indiana’s law. Return to Josh Blackman’s blog:

The “point was totally lost in the Indiana debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense. RFRA is *not* a blank check to discriminate.”

Because I live in the real world and not some pie-in-the-sky utopia, I realize there will be people of ill will who will attempt to hide their hate behind RFRA. But, it would be great if some of the equally vitriolic in the LGBT/gay-rights community considered this observation from what they might consider an unlikely source, the Southern Baptist Ethics & Religious Liberty Commission. Andrew Walker writes:

“There is no good reason for any business, let’s say a hamburger stand for example, to deny a gay man or a gay couple the right to patronize the establishment. Let’s be clear: If there’s evidence of this — of a business owner denying someone service based on his being and not his conduct — the owner of said business should be held liable.”

But, he adds:

“To require a wedding vendor to service a same-sex wedding is not eliminating discrimination against the gay couple. It’s coercing the wedding vendor. Think of an alternative situation where a gay baker is required to bake dessert cakes for a pro-marriage rally sponsored by a conservative group. Surely we should acknowledge that a person should not be required to provide a good or service for an event premised on views that the baker finds objectionable. Do you really want to live in a country where supposedly free businesses are required to use their goods and services against their will?”

This ain’t an oil change, folks. Graphic artists, bakers, florists, photographers and other creative types sit down face to face with their customers to discuss vision, likes and dislikes. Imagine a pro-life leader coming to a pro-choice graphic artist asking for a poster or t-shirt design that includes an image of a human fetus?

For years, many local municipalities have had anti-discrimination laws that include their LGBT citizens. There’s no doubt that more states will pass their own laws, just as Illinois did six years after their own RFRA got the green light. If those laws are well written and head off the haters, count me relieved.

But there will be other cases.

It is through the messy, time-consuming—and yes, often ugly—process of the courts and the legislatures that America will reach the other side of this contentious, emotional debate.

Christians will be forced to put their motives under the microscope. “Am I being called to take a stand and engage in civil disobedience? Or am I simply unwilling to be respectful of someone with whose lifestyle I disagree?”

The shoe fits well on the other foot, too. “Do I really want to persuade someone of my convictions or simply condemn them for theirs?”

What would Abigail think? I’ve no idea. But from what I know of her, she seemed pretty practical, if ahead of her time. If she were aware of this debate, then it stands to reason she would also be aware of the Civil War. I’d like to think she’d say, “If we made it through that and survived as a nation, we can handle this, too.”

That is, if the headlines don’t kill us first.

Image: “Abigail Adams” by Benjamin Blythe. Licensed under Public Domain via Wikimedia Commons.

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2 comments on “Of two minds (at least!) about RFRA

  1. Invisible Mikey
    April 1, 2015

    Though I was glad to be informed of Andrew Walker’s opinion, it is inconsistent with the legal history. Courts in the US have not affirmed a First Amendment right of businesses to choose their customers, nor to refuse a good faith effort to serve any person who acts politely and is willing to pay. All those signs in restaurants saying “We have the right to refuse service to anyone” have no legal weight. You can only refuse service to people who don’t behave (like bars refusing to serve patrons who appear intoxicated).

    Aside from that, you either sell to the entire public, or you can refuse the requirements of Capitalism and do religious or charitable work that does not include commerce. Trade isn’t a religious activity under current law.

    Just to add my own anecdote, I work as a medical imaging tech. Sometimes I have performed exams on injured gang members, real badass criminals, people I personally consider the scum of the Earth. My licenses, and the ethics clauses of the registries dictate that I acquire diagnostic images per doctor’s orders, and treat all persons with equally respectful behavior. I don’t get the option to judge the evil lifestyle of a patient and withhold treatment. I’m paid to serve the entire public. So are merchants.

    • Dannah K. "Dannie" Prather
      April 1, 2015

      Thanks for sharing your thoughts and experiences. You make some excellent points.

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