Indiana and the RFRA: Erotic Liberty Über Alles

Preparing to fly over the capitol building in Indianapolis, perhaps? (image: Wikipedia)
Preparing to fly over the capitol building in Indianapolis, perhaps? (image: Wikipedia)

The current, weird furor over Indiana’s state version of the federal Religious Freedom Restoration Act (RFRA) is really, really instructive. One one hand, I don’t get it. On the other hand, I do.

The news is giving (however poorly) the background, so let me summarize quickly in the event you don’t know. In 1993, President Clinton signed the federal RFRA. It was an amazing piece of work, with rare agreement across the political aisle. It was approved unanimously by the House of Representatives (since when has a major piece of legislation been approved unanimously by both parties?), and 97-3 in the Senate. Both the ACLU and the Christian Coalition behind it. (Sort of like watching dogs and cats hold hands, right?) It was introduced in their respective chambers by Democrats Chuck Schumer and Ted Kennedy. And the President praised it.

The RFRA was meant to protect religious freedom against unnecessary government infringement while, at the same time, creating a means for government to test when such infringement might actually be necessary. It was simple and clear. The law said that the government cannot substantially burden a person’s exercise of religion without showing, both, that the state has a compelling interest at stake in doing so and that it is the least restrictive means of achieving that interest.

The First Amendment had take some hits from recent court cases, and the RFRA was a means of addressing that. It shored up the government’s commitment to the First Amendment and clarified its obligations to honor the free exercise of religion while simultaneously providing a means of testing to see if there might be a legitimate, societal need to restrict that free exercise in some cases.

However, as established by the Supreme Court, the reach of RFRA was limited to the federal government and did not include concerns at the state level. So, many states have enacted their own version of RFRA, and they have done so without too much difficulty. States considered, both, very conservative and very liberal have done so (Connecticut’s was established even before the federal government’s, I think). Such agreement across political and cultural lines has reflected the spirit in which the federal RFRA was established.

Yet, Indiana is now under fire for doing just as others have done, with businesses, even other state governments, declaring that they will ban travel to the state unless their RFRA is repealed.

The hypocrisy in many of those decisions and proclamations have been highlighted by many. Bands I don’t care about have cancelled the parts of their tours to take place in Indiana, yet their tours continue in other states with their own RFRA. State governments with their own RFRA have wagged their finger. The wife of the President who so praisingly signed the federal RFRA has tweeted, “Sad this new Indiana law can happen in America today.” Weird, when her husband set the precedent.

What’s going on? I think two things are involved — probably one more than the other.

First, RFRA played a crucial role in the Burwell v. Hobby Lobby decision, in which the Supreme Court decided that Obamacare (as then currently configured–who knows how it will look day-to-day?) placed an inappropriate religious burden on the owners of Hobby Lobby by requiring them to violate their conscience and(no matter how you look at it) pay for certain forms of birth control (e.g., abortion).

This was a wake up call to some who have begun to see the freedom to exercise religion as a barrier to the political ends they very desperately want. Part of why America was founded was freedom of conscience, and Burwell demonstrated that this principle still has bite. The state may have a “compelling interest” in providing abhorrent forms of “birth control” free to all women (not agreeing that it does; saying so just for argument), but RFRA requires the government to prove that forcing people to pay for it when such payments would violate their conscience is, by far, not the least restrictive means for doing so. The challenge is that those other means (e.g., through general taxation) are politically problematic.

To some extent, I think this is what has caused news items to refer to RFRA not as a “religious freedom” law, as it has normally been seen, but as a “religious objection” law. On one hand, both concepts fall into the same category (freedom means freedom to object). On the other hand, the second characterization reveals a lot about how the media wishes to color the dispute. It isn’t their biggest tell, however…

Even more than Burwell, the stunning reversal of America’s attitude toward homosexual “marriage” has changed RFRA laws’ image from that of protection for a cherished, national freedom to some sort Taliban-like tool of oppression.

Consider the full tweet from Mrs. Clinton: “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love #LGBT” followed by a link to a Puffington Host article.

RFRA-type laws are now seen in light of the cultural decay of the last decade. The stories of wedding planners, cake makers, etc., who being sued by individuals and punished by state governments because they can’t, in good conscience, apply their artistic talent to support homosexual “weddings” have brought to the forefront the realization that society’s increased acceptance of homosexual “marriage” places many in direct conflict given their sincerely and deeply held religious convictions.

So, now, RFRA is seen as a tool for discrimination — a “cover” meant to allow continued discrimination against homosexuals.

There are more observations to make here that should be obvious to even the most casual observer, but which I just don’t have time to list. For instance, the RFRA law — even Indiana’s version — does not mention discrimination. The propensity of some media outlets to describe it as a “Gay-discrimination” law is saddening in, depending on the source, ignorance or dishonesty. It is no more a “gay-discrimination” law than the federal law on which everyone agreed, and no more than those passed by other states, some of which are even stronger than Indiana’s version. Which also puts the lie to those who claim that it is the small differences in Indiana’s law that makes it onerous. Why are other states getting away scot-free? It isn’t the content of the law, it’s the timing.

However, what seems the strangest to me is that Indiana’s RFRA law, just like all the others, is designed to handle exactly the concern that its haters have brought up. If, for instance, forcing a wedding planner to pour all of his talents and skills into planning a homosexual “wedding” even though it violates her conscience is, indeed, a compelling state interest, and such coercion is the best means of achieving that interest, then it will totally pass the RFRA test. (And, frankly, court case after court case in this country seems to increasingly demonstrate that such coercion will, indeed, succeed in passing such a test.)

What is wrong with requiring a case to be made that it is worth society’s while to punish someone for being unwilling to violate his or her religious convictions, regardless of what we think of those convictions, personally?

For instance, if someone were to go to a Muslim-owned cake store and request a cake depicting Mohammed–say, reproducing a Charlie Hebdo cover for a local journalism school activity celebrating freedom of the press–should the sincere Muslim cake designer be forced by the government to do so? I don’t think he should. But, regardless, at least RFRA laws give an orderly framework for deciding whether or not it is in society’s interest to require such things.

The government may decide that, yes, we all have a constitutional right to the cake of our choice from the baker of our choice, regardless of the First Amendment. But at least RFRA provides a means of testing whether such coercion is justified (well, probably deserves scare-quotes: “justified”).

[As an aside, can I just add that all of this seems dumb at an amazingly fundamental level. Even religious considerations aside, can’t a person specialize in cakes for homosexual “weddings”? Geek-and-nerd weddings? Muslim weddings? Jewish weddings? Is the only wedding type for which specialization is banned heterosexual weddings? What a weird world mankind is creating…]

If anything, if giving those who desire a homosexual “wedding” access to every cake-making business in existence in the name of “non-discrimination” actually is a compelling state interest and forcing those business owners who disagree with homosexual “marriage” to comply or be crushed out of business is the best way to achieve that end, then RFRA gives such efforts extra bite. If something passes RFRA standards, then it isn’t considered violating individual’s First Amendment rights and the way is clear, and all such future objections are pretty much doomed. Yet, if such an interest is not compelling or if less religiously offensive means are available to accomplish it — that is, if it fails the RFRA test — then why would we want to trample on people’s religious convictions, even if we disagree with them?

Really, it’s hard to see where the problem is. And even some legal scholars who support homosexual “marriage” agree and also support Indiana’s RFRA law. Dr. Douglas Laycock of University of Virginia’s law school is one.

The Indiana RFRA furor seems, fundamentally, a storm based not on fact but on the state of our culture and its current, relentless obsession: For some, absolutely nothing — not even our most cherished and fundamental freedoms — that presents a risk, however low, of slowing the progress of embracing the advance of homosexual “marriage” can be contemplated.

I heard Dr. Albert Mohler coin a name some time ago (at least I think he coined it; perhaps someone else did) that seems to apply: erotic liberty. While the free exercise of religion has long been one of the fundamental freedoms in the United States — long cherished, long celebrated, long protected — it is falling to a new freedom a growing number of people wish to enshrine above it. Increasingly, religious liberty takes a backseat to erotic liberty. And the events these days in Indiana demonstrate just how far back that backseat really is.

The Indiana RFRA dispute is all about the current obsession with erotic liberty. It hasn’t helped that backers of the law have been less that courageous. For instance, if RFRA means that the discriminatory attitudes of some, if rooted in religious convictions, may be protected if there is no compelling state reason to make the practice of those convictions illegal, then admit it. On the other hand, those who hate the law could stand to be more honest, as well. Instead of larger principles like “discrimination” which can sound very noble, if their concern is really that they want the state to have unquestioned authority to force wedding planners and cake makers out of business unless they are willing to use their talents in the service of weddings that violate their deeply held positions of conscience, then say so. They accuse the law’s supporters of hiding the particulars of their concerns, but they could stand to be more honest about their own. If they believe that erotic liberty is a cause so worthy that it justifies denying people their First Amendment rights, then just say so.

It isn’t that there’s not a great discussion to be had concerning RFRA laws and how religious freedom is supposed to operate in a culture moving in the direction America’s is headed. But that great discussion is not being had concerning Indiana’s new law. Quite the opposite. Rather, we’re seeing politics at its worst, where huge, cultural impacts will be made and multiple generations affected by nothing more than pretense, positioning, and pandering. Yuck.

I am so thankful that I have been called by God to something different,and that I do not participate in politics. It allows a vantage point to see things as they are, I think, without being caught up in the distraction of trying to drive them in a particular direction. RFRA or no RFRA, “homosexual marriage” is an oxymoron in God’s eyes — about as substantial as “married bachelors” or “square circles.” The outcome of all the fuss is not so relevant to me as what the back-and-forth of the fuss reveals concerning where our culture and national conscience currently stands. And the position of that culture, or at least the position of the drivers of that culture, seems pretty clear: Erotic liberty über alles.

8 thoughts on “Indiana and the RFRA: Erotic Liberty Über Alles

  1. The attack on religious liberty is being conducted in many places and Ireland is not exempt from this aggression. In Northern Ireland a small, family run bakery has been taken to court by the Northern Ireland Equality Commission which has the accused the Asher famly, the owners of the bakery of discrimination against ” gays “. This was because the bakery would not produce a cake with a slogan supporting same-sex marriage as it was against their [ professing ] Christian convictions. The court hearing concluded today and judgement is pending. However, opinion polls in Northern Ireland reveal that the majority of the people of Northern Ireland are supportive of the bakery. There has been at least one demonstration supporting the family and the major union political party, the Democratic Unionist Party which was founded by the late Ian Paisley, has launched a petition in favour of the Asher family and their stand for traditional marriage. This support is reflected accross the broad unionist and Protestant community. Their political parties are traditionally conservative and on the right ideologically speaking, their support emanating from the Protestant culture. The nationalist political parties, Sinn Fein and the Social Democratic and Labour parties, are on the left – the former being more radical and the moderate latter party, their support coming from Roman Catholics as a whole. However, south of the border in the Republic of Ireland, there is a very different mindset. It appears all of the major and the majority of the minor political parties are fully in favour of same-sex marriage. Opinion polls in the Republic of Ireland are strongly in favour of same-sex marriage, despite the oppositing of the Irish Catholic Church to which the majority are faithful. I live in the Republic of Ireland, though In a county bordering Northern Ireland and I have heard people I know well expressing their support for the same-sex marriage agenda. I have continually expressed my opposition of Facebook and when I have the chance to say what I think. Sadly, I am feeling verfy isolated and alone because there are so few standing up for traditional marriage. But I will continue to sigh and cry against this abomination, even though I expect to be accused of homophpobia

  2. Please excuse the spelling errors! Feeling rather physically tired tonight because of a long day cleaning up the house and trying to deleaven, the latter which I’ll complete tomorrow prior to my departure for the Passover.

  3. Norbert

    In regard to the idea of “pay for certain forms of birth control (e.g., abortion).” I honestly never gave thought to the idea that my Canadian taxes were a part of the abortion debate. It does make me give thought about how “Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s.” fits in. My first reaction to that idea is most Canadians don’t see their taxes as being tribute to Caesar, yet numerous Canadians would undoubtedly believe that Prime Minister Harper acting like a Caesar is not too far of a jump in logic. 🙂 However on a more serious note, how does the idea like Lu 20:25 fit into Christian obligations to their earthly governments?

    On the thought about “erotic liberty”, seeing this issue has been around for a number of years. In retrospect I shouldn’t be surprised that this drive for the freedom of sexual liberty, has led to legislation that legitimizes the public itch for making their sexual behavior seem morally right.

  4. Howdy, Norbert, and I can only speak for myself and my own understanding of the Hobby Lobby case, but if it had been a matter of a tax, then Hobby Lobby (as I understand it) would have complied. Our taxes go to all sorts of heathenish things, and we “render unto Caesar.” That part of the healthcare plan as it existed up to then, however, was not a tax, where the government takes the money, but a requirement by government for the employer to pay for such coverage more directly. Had it been a simple tax that the government collected and used for whatever purpose it wanted, such as to pay for abortions, then there would not have been an issue. However, passing a direct tax would have been a harder sell to the American public, especially for a bill that passed with less-than-majority public support as it was. Rather than a tax, they chose to make the law press employers into paying for such things directly.

    So, in this case, Luke 20:25 didn’t seem to come into play. Had the government simply been confiscating money in taxation and using that for whatever it desired, including funding employee abortions, the question would have been moot. Instead, the government was, in effect, forcing Hobby Lobby to pay for such things directly, which they refused to do as a violation of conscience. And, personally, I think I see the difference. If my brother were a meth addict and the government used my tax money to effectively extend and worsen his addiction, I would be irritated, but I would continue to “render unto Caesar.” However, if they told me directly to go purchase meth and give it to him, myself, I would have to draw a line of conscience there, I believe.

    And that was why it failed a RFRA test, if I recall. The government may decide that providing funded abortions to all females in the country is a compelling state interest (I would disagree, but for argument’s sake…), but forcing the company, itself, to pay for that coverage directly is not the least restrictive means for achieving that end. Direct taxation and having the government pay for that coverage, itself, would have achieved the same end while not being the same sort of burden on the religious conscience of the company’s owners.

    My government does terrible things with my tax money, as did Rome with its citizens’ money, I am sure. But to ask me to participate more directly in those terrible things risks crossing a line from “render unto Caesar” to “we ought to obey God rather than men.” I believe that line is what Hobby Lobby owners felt was at issue.

  5. Loni

    I don’t understand the need for any RFRA legislation. If the 1st amendment is binding on both the federal AND state gov’ts, then it seems redundant at both levels of gov’t. (My understanding is that the Bill of Rights was originally aimed only at the federal gov’t, but now the states are bound by it as well.) The Indiana law with it’s “compelling state interest” and “least restrictive means” is an infringement on our 1st amendment rights, not a recap. To me the whole RFRA legislation smacks of a parent saying, “And, I MEAN it!” to their kid after repeating the same command over and over with no follow through. If our courts ignore the 1st amendment, this will be a less-than-useless protection of our religious rights.

  6. Thanks, Loni, and I appreciate your thoughts. I can definitely understand where you are coming from.

    At the same time, when you look at how RFRA laws have actually been used, in terms of real cases, they do seem to make sense, at least to me. Our culture is such a mix of different religions that it is very conceivable societal interests may conflict with the religions of some. How does one balance all the interests in such conflicts? RFRA laws are one way to do that. It specifies the burden of proof the government must meet before it can burden someone else’s religious beliefs. Looking at some cases where RFRA laws have come into play, it also seems to protect people of actual religions from those who seek to use the First Amendment to protect their activities under the mere guise of religion. For instance, I know of one case in which some marijuana users declared that the belonged to a (made up) religion in which they (essentially) worshiped weed. As I read it (uneducated in the arcane ways the law as I am) RFRA provided the legal structure by which it could be shown that they were not actually religious beliefs that were being burdened, so the government’s laws were shown not to truly effect free exercise religion in their case.

    That we need to balance societal needs versus individual religious beliefs could be illustrated by any number of imaginary scenarios. For example, imagine a religious cult that worshipped a god that required human sacrifice; as a society, we’d all be OK with the fact that our laws that prohibit murder would be a “substantial burden” on that group’s sincerely held religious beliefs and we would expect our government to continue to “burden” their beliefs for the sake of the rest of us in society. We wouldn’t want the First Amendment interpreted in such a way that it allowed such a cult to do that, but how is the court to judge without legislation giving it guidance? Without such legislation, it just comes down to each judge’s personal preference and interpretation, and I don’t think anyone wants that. RFRA laws take it further out of personal judgment and into specific means of making a determination.

    Yet, while the imaginary scenarios may seem outlandish, in real life there are times when society’s laws do come into conflict with the religious beliefs of others, and the manner in which the First Amendment is acted on needs a defined structure. RFRA laws, in that sense, could be interpreted as simply trying to do things “decently and in order,” specifying to the powers that be (note: not the Power that Is), “If you want to claim that your law, ordinance, whatever is a special case that requires ignoring an individual’s religious beliefs, you are going to have to prove it, and here is what burdens of proof you are going to have to meet…”

    Actually, concerning your last comment, as I understand it (again, faulty memory may be at play), part of why RFRA had its start in 1993 was that the courts had watered down the impact of the First Amendment in application, so Congress stepped in to clarify just how strong the burden should be on the government in such cases. Admittedly, if the courts are going to ignore the First Amendment, you’re right: There isn’t much that can be done. But courts can’t truly ignore the First Amendment; they have to pay lip service to it, at least, even if they violate the spirit of it. RFRA laws add a bit more teeth, since they are seen as a constitutional exercise of legitimate legislative authority, and the courts must consider them, as well. Given that religious liberty seems to have seen greater protections since their enactment than less, they seem to be doing their job at shoring up, in a practical way, just how to apply the First Amendment in tricky circumstances.

    Sorry to go on so long! Just appreciated your comment and wanted to add to it. Thanks for stopping by!

  7. Loni

    Yes, I understand it is probably helpful in these days where common sense seems to be in short supply and activist judges are distorting the constitution, which they view as a living document, and where the president waves a magic want to create or dissolve laws. I think it used to be understood, widely, that our rights extended only so far as the intersection with the rights of others. Now, the term “rights” is being redefined to mean the right to be provided for, the right not to be offended and the right to force someone else to bake them a cake or provide flower arrangements (essentially forcing people to endorse [not just tolerate] their beliefs/practices). If we have the freedom of association, we should be free to discriminate whom we rub shoulders with AND do business with, whether they be red heads, Asians, fatsoes or Blacks, etc., regardless of how obnoxious that is.

    My friend and I used to joke about where all these new ideas, unheard of for approx. 200 years, about our constitution were coming from. She said two pages must have been stuck together…

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