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Smearing Religious Freedom’s Defenders

The verdict of national public opinion about what was universally represented as an attempt by Arizona’s legislature to authorize discrimination against gays was overwhelming. Though support for gay marriage is not yet unanimous, Americans don’t like prejudice and think laws that might legitimate bias are, by definition, wrongheaded. By vetoing Arizona’s SB1062 bill, Governor Jan Brewer was simply practicing political common sense and saving both her state (which stood to lose conventions and even an upcoming Super Bowl over the controversy) and the national Republican Party a great deal of grief over what was claimed to be a new version of Jim Crow. The “anti-gay bill” stood to become this year’s version of Todd Akin’s infamous comments about rape and abortion and could have been a millstone around the necks of all conservatives even in a year in which the GOP stands to gain ground across the country.

Fresh off this almost uncontested victory, liberals like The New Yorker’s Jeffrey Toobin are hoping to follow up on their triumph by pivoting from this controversy to ratcheting up anger at the prospect that the Supreme Court will allow religious business owners to claim religious exemptions from the federal government’s demands that they pay for insurance coverage of acts that violate their religious beliefs. What has that got to do with an “anti-gay bill?” And how can liberals hope to mobilize Americans on this issue the way they did on the Arizona bill given the significant public sympathy for the religious freedom protest of companies like the Hobby Lobby chain as well as antipathy for the ObamaCare mandates?

In order to answer that question you would have had to have actually read the Arizona bill, something that few media figures, let alone the general public actually did before lambasting it. As National Review editor Rich Lowry, pointed out in an insightful Politico op-ed published last week, even a cursory glance at the bill yielded nothing to justify the universal condemnation that rained down on it from the mainstream media. But at the heart of that dustup and the one on the ObamaCare Mandate is the same question of religious liberty that got steamrollered in Arizona and is again being attacked in the Hobby Lobby case. The principle being defended here isn’t Jim Crow or any other form of prejudice but the constitutionally protected right to religious freedom.

As Lowry pointed out:

It was jarring to read the coverage of the new “anti-gay bill” passed by the Arizona Legislature and then look up the text of the instantly notorious SB 1062. The bill was roughly 998 pages shorter than much of legislation that passes in Washington, so reading it didn’t take much of a commitment. Clocking in at barely two pages, it was easy to scan for disparaging references to homosexuality, for veiled references to homosexuality, for any references to homosexuality at all.

They weren’t there. A headline from The Week declared, “There is nothing Christian about Arizona’s anti-gay bill.” It would be more accurate to say that there was nothing anti-gay about Arizona’s anti-gay bill.

The legislation consisted of minor clarifications of the state’s Religious Freedom Restoration Act [RFRA], which has been on the books for 15 years and is modeled on the federal act that passed with big bipartisan majorities in the 1990s and was signed into law by President Bill Clinton.

If you’ll excuse a brief, boring break from the hysteria to dwell on the text of the doomed bill, it stipulated that the word “person” in the law applies to businesses and that the protections of the law apply whether or not the government is directly a party to a proceeding (e.g., a lawsuit brought on anti-discrimination grounds).

The reason that the law was so fiercely denounced was because it opened up the possibility that a business such as florist or a baker could use the state’s version of the federal FRFA in order to back up a refusal to take part in activity that might violate their religious beliefs such as a gay wedding. The legal distinction here is a fine one. No one disputes (or at least no one should) that businesses that are a public accommodation have no right to turn away customers on the basis of their race, religion, beliefs or, their sexual orientation. But commissioning someone to create a floral arrangement or display to celebrate something they oppose is not quite the same thing as merely showing up and asking to buy flowers or bread or to sit at a lunch counter. Where exactly the law comes down on such situations is a matter of debate. You might well argue that such vendors should just accept the business or lose it to competitors. But arguing that their personal beliefs should be ignored when someone demands they participate in events that, however sympathetic, violate their beliefs, is rightly considered a bridge too far for many civil libertarians.

What happened in Arizona was that the growing support for gay marriage was used to delegitimize anyone who sought to carve out some legal space for those disagreed on religious grounds and the affair snowballed into a national furor that drowned out opposing arguments. What Toobin and other liberals would like to see is the same process apply to Hobby Lobby and other religious believers who see the ObamaCare mandate as violating their liberty by painting them as opponents of women’s rights.

The conceit of the liberal argument is to brand as intolerant those who oppose forcing religious institutions or business owners to pay for abortion drugs or contraception for their employees under the mandate. According to Toobin and the administration, those who oppose the Mandate are seeking to impose their religious views on employees and to deny them necessary services. But this is false. No one is preventing anyone from obtaining access to birth control or even an abortion drug. What the owners of Hobby Lobby and the many other plaintiffs in these cases are seeking is to not be involved in the purchase of products and services they oppose. It is the government and its liberal cheerleaders who are seeking to impose their beliefs on religious believers, not the other way around. And, unless the U.S. Supreme Court stops them by ruling in favoring of Hobby Lobby, that is exactly what they will do. One doesn’t have to oppose abortion or contraception to understand that if the government can have its way in this case, no one’s rights are safe.

The problem liberals face in seeking to demonize persons of faith who oppose the ObamaCare Mandate is that, unlike Arizona’s SB1062, the public is already well aware of its intrusive nature and the assault on individual rights it represents. Opponents of RFRA were able to buy the Arizona bill under a mountain of obfuscation, innuendo and disinformation. Liberals should forget about being able to play the same game in defense of a position that seeks to restrict religious freedom for the sake of a vast expansion of government power that a majority of Americans already oppose.


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