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.