There are two ways of looking at the furor that has erupted over the signing into law of a Religious Freedom Restoration Act by the state of Indiana. One is to focus on the fact that this law is a bit different from a federal law of the same name that also has been passed in 19 other states in that its broader language allows claims of religious liberty to be invoked as a defense in civil lawsuits between private parties as well as those involving government action. But for anyone who has been listening to the debate about this law, if the one-sided opprobrium that has been hurled at Indiana in the liberal press can be dignified by such a term, there’s little question that legal debates about the need to balance the rights of individuals to observe the dictates of their consciences with those banning acts of discrimination have been thrown out the window in favor of a rush to anathematize anyone who dares to assert that the right to religious liberty can be viewed as being as important as the right to gay marriage. What we must ask ourselves, as Indiana and Governor Mike Pence are put in the stocks of popular culture and threatened with corporate boycotts, is how exactly are we to defend constitutional principles in an atmosphere in which the facts about the law and its implications are viewed as insignificant when compared to the perceptions of those advocating for the equal treatment on the basis of sexual orientation?
Pence looked puzzled yesterday when he attempted to defend the statute on ABC’s This Week yesterday. But merely complaining about what he rightly termed the “misinformation” that has characterized the discussion about the subject isn’t sufficient to understand what has been happening.
It is true that the Indiana law is different from the federal and most other state RFRA versions. The broad nature of the statute, combined with the lack of a state law specifically recognizing gays as a protected class, has led to claims that it will enable discrimination. But this is a slender reed upon which to base such a strong reaction. In fact, this RFRA, like the others, merely requires those seeking to restrict expressions of religious belief to prove that there is a compelling government interest and that, if necessary, it should be done in the least intrusive manner possible.
The focus of those claiming that this is an anti-gay law is the belief that RFRA laws, especially broad ones such as the Indiana statute, might allow bakers or photographers to refuse to offer their services to those planning same-sex marriages. Whether those kinds of services constitute a public accommodation, such as a hotel or a restaurant that should not be allowed to discriminate against any class of persons, or are, instead, activities that are artistic in nature and therefore protected from such charges, is a question that the courts have yet to definitively answer. But no matter the answer to that question, the mere possibility that someone, somewhere might be allowed to harbor negative views about gay marriage because of their religious beliefs is viewed as not merely lamentable but an intolerable offense to public decency.
That is a sign of how abruptly the culture has shifted on the question of gay marriage in the course of the last decade. As a result, as the editors of National Review noted in an insightful editorial, what has happened is an effort to treat private opposition to gay marriage as being somehow analogous to Jim Crow laws that perpetuated the legacy of slavery and racial hatred.
One need not be an opponent of gay marriage to view the backlash against Indiana as an attempt not so much to defend gay rights as it is to coerce and to silence those religious believers who are dissenters from the recent change in public opinion on the issue.
As NR rightly pointed out, ever since the Hobby Lobby case, liberals who were once stalwart defenders of religious liberty against the coercive power of government or the beliefs of the majority have now discovered that there are other values they prize more highly than those rights enshrined in the First Amendment to the Constitution. With Hobby Lobby, the effort to force all employers to pay for abortion drugs and contraception outweighed the rights of individual business owners not to support practices that violated their religious beliefs. Now the mere chance that a RFRA act might allow some Christian bakers, florists, or photographers to abstain from taking part in a gay ceremony is enough to send the media into a frenzy and galvanize an effort to boycott an entire state.
The point here is that at stake in these legal tangles are competing rights that need to be balanced. Even if, as a society, we now believe there is no legal distinction to be drawn between the marriage of a man and a woman and one between two men or two women (but not, interestingly enough, of polygamous marriages), the right of those who wish to marry must be weighed against those who do not wish to participate in such weddings. Those who don’t share their beliefs may deem their refusal foolish or pointless, but religious freedom is privileged in the Constitution. What is frightening about the attack on Indiana is not the belief by some that such refusals are illegal but the willingness of so many in the public square, especially the media, to treat the rights of religious minorities—in this case, conservative Christians—as being unworthy of respect or even a hearing.
It may well be that Indiana will revise their RFRA statute to align it more closely with the federal law championed a generation ago by liberal stalwart Teddy Kennedy and those of other states. But that is unlikely to satisfy opponents who have come to view any defense of the religious liberty of conservatives as incompatible with their view of democracy. The unseemly gang tackle of Pence and the Indiana legislature isn’t so much a demonstration of the way a legal issue can be distorted by popular passion as it is an example of why RFRA laws are so necessary.
When placed against the demands of a majority (even newly-minted majorities such as the one behind gay marriage) the religious freedom of minorities can be trampled even in supposedly enlightened democracies. It is the purpose of the law in a free country to defend the rights of the individual, especially their religious rights, when other government concerns threaten to override them. That is exactly what RFRA statutes do. In their rush to stigmatize opponents of gay marriage, those who call themselves liberals seem to have forgotten that.