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QUICK TAKES – Do the New State “Religious Freedom” Laws Ensure Such Freedoms, or Only A License to Discriminate?

US-Constitution

In this week’s edition of QUICK TAKES on current and newsworthy issues involving religion and theology by POLITICAL THEOLOGY TODAY, we look at the very recent national controversy over legislation passed in both Indiana and Arkansas that purported to be state-based versions of the existing federal Religious Freedom Restoration Act (RFRA).

The questions asked of this week’s contributors are as follows: Why the current and spreading controversy over state-based “religious freedom” laws?  To what degree is the controversy really about religious freedom or about the advocacy and support of rights to gay marriage as well as fears concerning providing a “license to discriminate”?  What does the controversy tell us about the way in which we regard the right, or lack thereof, to exercise religious beliefs in the public arena?  What are the actual implications, based on the consensus of legal opinion, of existing laws? 

QUICK TAKES is a feature managed by PTT Current Affairs Editor Carl Raschke.  If you would like to be part of the “rapid response teams” that responds in this section to news of the week, please send the editor an email along with a brief description of the general topics on which you would like to comment.

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Both Sides Need To Realize The Argument of The Other Side Has Some Merit

If we are to cut through the culture war rhetoric surrounding Indiana’s Religious Freedom Restoration Act, critics on the left must realize that the marriage equality movement has implications for freedom of religion.

For their part, RFRA’s defenders must remember that the right to free exercise is never absolute. And both sides should note that the moral stakes at the heart of this conflict are very different from the moral stakes in other free exercise conflicts.

RFRA’s critics seem reticent to admit that our rapid acceptance of same-sex marriage has implications for the right to free exercise of religion. But those implications are evident. If future anti-discrimination laws require businesses to serve same-sex couples, politically-conservative Christian business owners may be burdened in religious practice.

Advocates of same-sex marriage may ignore this reality or dismiss it by labeling such business owners as bigots. These responses fail to consider how belief and labor factor into Christian experience. Nor do they honor the importance of our collective right to free exercise.

Nor, ultimately, are they politically productive. Critics of RFRA should take the time to listen to Jack Phillips, owner of Masterpiece Cakes in Colorado, as he describes his religious beliefs and labor.  Even those who disagree with Phillips must recognize the implications that marriage equality has for his free exercise.

RFRA’s supporters, at the same time, should remember that the right to free exercise is not absolute. The freedom to practice religion is always weighed against the self’s competing duties and the competing rights of others.  In Minersville v. Gobitis, the Supreme Court ruled in 1940 that Jehovah’s Witnesses were not exempt from saluting the flag, despite their claims that doing so was idolatrous and a violation of their right to free exercise.

Even when that ruling was overturned three years later, the Jehovah’s Witnesses received an exemption on the basis of a claim to free speech, not free exercise of religion. In 1990, the Supreme Court ruled in Employment Division v. Smith that Native Americans who had been fired from their jobs for testing positive for peyote use were not eligible for unemployment benefits.

Their right to free exercise did not protect drug use in religious ceremony. In a legal sense, any conflict between free exercise rights and anti-discrimination rights will be evaluated based on norms of American jurisprudence such as religious neutrality, general applicability, compelling interest, and possible alternatives.

However, in a moral sense RFRA exposes different reasons for religious objections. When conservative Christian bakers and photographers refuse to work with same-sex couples, the moral burden that they claim is significantly lower than the burdens in other cases involving free exercise. In Minersville v. Gobitis, Jehovah’s Witnesses objected to being complicit in idolatry.

One of the major moral factors in last year’s Burwell v. Hobby Lobby case was that the Green family sought exemption from health care law because they objected to being complicit in killing. People continue to debate the merits of that argument, but the point is that the moral objection at the center of Indiana’s RFRA is very different. Any anti-discrimination law requiring bakers or photographers to serve same-sex couples against their religious beliefs would not make them complicit in idolatry or killing. It would make them complicit in love.

Indiana’s RFRA seems to indicate an impasse of competing rights, but the moral conversation surrounding gay marriage is moving swiftly. Emphasizing the essential goodness of all loving relationships rather than conflicting rights accelerates collective acceptance of marriage equality even more. Emphasizing love will make counter-assertions of rights and laws like Indiana’s RFRA increasingly irrelevant, meaningless, and rare.

Daniel A. Morris is a lecturer in the Religion Department at Augustana College (Rock Island, Illinois). His research in Christian ethics and American religious history has appeared in The Journal of Religion, Soundings, and Journal of Religious Ethics. His book, entitled Virtue and Irony in American Democracy: Revisiting Dewey and Niebuhr, is forthcoming with Lexington Books.   

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The Issue Lies Not So Much With The Laws As The Ambiguity of The First Amendment Itself

The controversy surrounding Indiana’s (now recently amended) Religious Freedom Restoration Act (Senate Enrolled Act No. 101) – whether we are for it or against it – has a single genesis.  It is the result of the United States having privileged religion.

True, we may be seeing the effects of this privileging now more than ever based on the current political climate, and a social response to the much anticipated emerging jurisprudence that will likely follow the 2015 session of the United States Supreme Court concerning marriage equality, but the issue was born from the place of privilege we have created for religion.

Students of American history are well versed in why the First Amendment in the Bill of Rights was destined to have express language guarding against government establishment of religion as well as a guarantee of the freedom of religious expression.  However, it is also the First Amendment that has laid the groundwork for the controversy we are witnessing today.

My argument here is not to put in question the First Amendment, but to point out that what the First Amendment does with the religion clauses is to create a special class of expression (or freedom from expression or establishment).  It is not that special class, per se, that has resulted in the social uproar around various Religious Freedom Restoration Acts;.  Rather, it is the discriminatory application of this privilege.

Acts similar to those in Indiana or the one proposed in Arkansas generally restate established case law surrounding the Establishment Clause of the First Amendment. There are several concerns surrounding Indiana’s law (as originally written).  However, the major one is that Indiana has no separate laws that (relevant to this discussion) establish civil rights for individuals based on sexual orientation (as is the case in several other states).

By way of analogy, while we have laws that make it clear that racial discrimination is not permitted – even on the basis of religious belief, we don’t have similar laws (uniformly) for sexual orientation.   Resolving this issue without engaging in major social commentary may not be easy, but it we have the tools available if the government decides to use them. It is well established that businesses are not permitted to discriminate based on race.

It was the case of Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) that stated that when a motel operating intrastate refused to accept black guests, the effect of such discrimination would be to affect interstate commerce, and thus Congress had the power (using its authority found in the Commerce Clause) to prohibit a business from discriminating based on race.  Here, we’re not dealing with a law that Congress has made, but with laws that states have made.

Arguably, the effect of a law such as the (previously un-amended) one in Indiana (where no separate civil rights law exists for sexual orientation) will be one on interstate commerce – as the business community has already suggested.

How is florist turning away a gay couple for service affecting interstate commerce any differently than the motel that refused to admit black guests?   Indeed, we return to the famous line from Heart of Atlanta, “if it’s interstate commerce that feels the pinch, it does not matter how local the operation that applies the squeeze.”

Why has this issue gained so much traction right now? After all, there is a Federal Religious Freedom Restoration Act that has existed for several years, as well as a myriad of other states that have similar laws affirming the Establishment Clause.

Currently the political climate seems to indicate to us that soon marriage equality  will be the law of the land. But let’s keep our eye on the bigger picture – Establishment Clause cases (prior to today) were not generally about marriage equality, nor will they likely be in the future – what we should be acutely aware of is the effect this particular privileging has had on our society, and how we can address this bramble bush of privilege using the simple laws at our fingertips.

Today, discriminatory application of such a law may affect same-sex couples.  However, tomorrow, the issue will likely be different.

B. Brittany Scantland-Lall is a local government attorney in Denver, Colorado.   She teaches business law and ethics at the University of Denver Daniels College of Business, and is currently completing graduate in religious studies at the university with an emphasis on law and religion.

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The Arkansas Law Has Elevated Religious Freedoms Over All Other Freedoms, Rights, and Privileges

Last Thursday Arkansas Governor Asa Hutchinson signed into law the bill known as SB975, which is Arkansas’ version of the Religious Freedom Reformation Act.  However, controversy over religious freedom and anti-LGBTQ discrimination in our state were brought into sharpest relief in the debate over its predecessor bill, known as HB1228 , passed by the Arkansas Legislature early last week but – after a firestorm of protests – was recalled at the request of the Governor and replaced by the more moderate SB975, which essentially mirrors the Federal RFRA.

HB 1228, which the conservative Arkansas Family Council referred to as “the Rolls Royce of religious freedom laws” , elevated the rights of religious freedom to an unprecedented degree, defining “exercise of religion” as any action “motivated by a person’s sincerely held religious beliefs”.  It further defined as “person” as “an individual, association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity.”

As critics noted, the bill seemed to elevate the right to religious freedom above all other rights, privileges, and responsibilities of being a citizen. The extent to which HB1228 was motivated by the desire to protect religious freedom versus legalizing discrimination against the LGBTQ community remains a point of dispute.

In his April 1 press conference asking the legislature to recall HB1228, Governor Hutchinson declared, “This is a bill that in ordinary times would not be controversial. But these are not ordinary times.”  For those concerned for the equal treatment of all people, the push to pass HB1228 was understandably perceived as part of a bigger picture in which, for example, even if same-sex marriage were legalized in Arkansas, county clerks could refuse to issue such licenses, claiming a violation of religious freedom.

Regardless of the intent of HB1228, in conjunction with SB202 the effect could have been an end-run on the legalization of same-sex marriage, effectively denying the legal rights of LGBTQ citizens.

The RFRA that ultimately passed in Arkansas after the recall of HB1228 corrected much of the overreach of the original bill, bringing Arkansas into line with the Federal RFRA. However, the danger of discriminatory application of the law still remains in the absence of specific measures protecting LGBTQ civil rights.

Robert Williamson Jr is Margaret Berry Hutton Odyssey Associate Professor of Religious Studies at Hendrix College in Conway, Ark., and an ordained Presbyterian (PCUSA) minister.

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