Excited protests against Indiana’s recently passed religious freedom law have highlighted both America’s growing support for same-sex marriage and our apparent incapacity to entertain more than one idea at a time.
The law in question is a version of the 1993 federal Religious Freedom and Restoration Act (RFRA) signed by then-President Clinton. Nineteen states have versions of the law and another 11 have interpreted their state constitutions as already providing these protections. Without diving into the weeds, RFRA aims to protect religious freedom against government action that abridges deeply held convictions.
Indiana’s law isn’t exactly the same as the federal version — or of some other state laws — and it isn’t clear whether these distinctions constitute a difference justifying the current level of outrage. They include extending protection to corporations as well as individuals; expanding protections against government actions that are “likely” to be substantially burdensome; and, perhaps most problematic, allowing claims of religious-freedom infringement even if the government isn’t involved.
Nevertheless, after a difficult week of criticism and protests aimed at Indiana, Gov. Mike Pence announced Tuesday that he would push his state’s Assembly to pass legislation stating that the new law does not give businesses a right to deny services to anyone.
This may be exactly so, but it wouldn’t necessarily preclude individuals or corporations from denying services to same-sex couples and then defending themselves on religious principle.
Based on what Pence said, it would merely make clear that the state doesn’t authorize or condone such refusal of services or any other discriminatory action.
But discrimination remains a personal choice, which can be defended in individual cases under RFRA. Does anyone really object to this option? Isn’t it fair to allow religious people a framework for seeking recourse through the courts?
Refusing services because of a religious belief doesn’t lend solace to those who are seeking complete equality without exception. (For the record, I am solidly in this camp, but I do have compassion for those whose religious convictions make compromise impossible.)
As Clinton said at the time of the federal law’s passage, freedom of religion is “perhaps the most precious of all American liberties.” Though the First Amendment was intended to protect citizens from religious persecution and the imposition of a state religion, inferentially, it also has protected religious believers from being forced by government fiat to renounce their belief in attendance to some government action.
The most familiar recent case involved a baker who didn’t want to make a wedding cake for a gay couple. The question is whether he has the right, owing to his religious beliefs, to refuse to bake the cake. If you think this is silly, consider that RFRA first came about to protect the rights of Native Americans to consume peyote in religious ceremonies.
The theoretical abuses on both sides can be endlessly entertaining. Should we also allow the slaughter of pets as sacrifices to someone’s God? Even Abraham believed that God required he slay his own son. Abraham almost did, too, before God intervened, satisfied that Abraham sufficiently feared him, whereupon a ram materialized on his own very worst day.
But we’re not talking about silly or extreme exceptions.
If even a few Christians, Jews or Muslims understand marriage to be the sacred union of man and woman in the eyes of God, activists seeking a fresh definition shouldn’t expect an immediate surrender. This doesn’t justify the refusal of a wedding cake, the baking of which hardly qualifies as an endorsement, but nor does it justify charges of bigotry, as is often said of religious people struggling with profound social restructuring.
This isn’t an excuse for what is, in fact, discrimination by any other name. It is an attempt at compassion sorely missing from most discussions of this and other laws that try to carve out a tiny space for people whose religious beliefs are being put asunder. As gay activist and conservative author Andrew Sullivan wrote last year, “we should give them [religious believers] space.”
Such as by, say, going to another bakery?
The market ultimately may settle these matters before the courts do. Pence’s latest move was prompted by corporate pressure as well as a few state boycotts on state-funded travel to the Hoosier state.
As Indiana moves to clarify its intent, the perception of discrimination will persist until RFRA laws are eliminated. This is the goal of many activists. But discrimination is a two-way street and tolerance should apply equally to sexual orientation as well as to religious belief.
There’s plenty of cake to go around.
Kathleen Parker’s email address is kathleenparker@washpost.com.
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