Liberals against Religious Liberty in Indiana

National Review Online

Monday, March 30, 2015

Indiana has adopted a state-level version of the federal Religious Freedom Restoration Act (RFRA), thereby imposing a “strict scrutiny” legal standard when the state government or local powers pass laws that interfere with the free exercise of religion. For this, Governor Mike Pence and Indiana’s legislators have been denounced as gay-hating monsters, a claim that was never made about President Bill Clinton, who signed the federal RFRA, or about the people and powers of such liberal states as Connecticut, which is one of the 20 states with a RFRA. Another dozen or so states have constitutional provisions similar to those in RFRA.

Indiana’s law is controversial for two possible reasons. The first is political: Democrats, unhappily laboring under the largest Republican congressional majority since before the New Deal, are looking to pick fights over issues such as gay rights, abortion, and environmental regulation, believing that this will help their fund-raising and invigorate their demoralized partisans. The second reason might be more substantive: Indiana’s law, like some other state RFRAs (but unlike the federal statute, which has been interpreted in different ways by different courts), expressly states that it allows religious practice to be raised as a defense not only when the government is a party to the controversy but also in litigation undertaken by private parties under state law — including laws that prohibit discrimination against homosexuals. Which is to say, this is another skirmish in the endless battle of the Big Gay Wedding Cake.

Critics say that Indiana’s RFRA amounts to a license to discriminate; it isn’t — far from being a blanket grant of immunity, it simply allows religious liberties to be raised as a defense in lawsuits. That religious liberties may be offered as a defense is not a guarantee that this defense will be accepted by a court.

The RFRA story is tangled. The original impetus for the federal law was a Supreme Court decision holding that American Indians need not be granted exemptions to drug laws so that they may use peyote in religious rituals, a fact that surely must be a comfort to the senior senator from Massachusetts. The federal RFRA aimed to restore the constitutional standard that the Court jettisoned in that case. At first, the federal law applied both to the federal government and to state and local governments, but it was later restricted to federal applications when the Supreme Court found that Congress had overstepped its constitutional authority in preempting state and local governments. As a result of that decision, many states adopted their own versions of RFRA.

RFRA enjoyed wide bipartisan support until the Hobby Lobby case reminded Democrats that they care a great deal more about Obamacare and contraceptive subsidies than they do about the religious liberties of people who hold views that inconvenience the Democrats’ political platform.

RFRA, in both the federal and the Indiana versions, is a piece of law aimed at allowing for the emergence of social compromise. RFRA reasoning does not give religious persons or institutions the power to simply ignore laws that conflict with their consciences; rather, it compels the government to demonstrate a compelling government interest when it burdens religious expression, and to accomplish any substantial burdening of religious liberty in the least invasive manner. Both of those requirements — compelling government interest, least burdensome means — are open to a considerable degree of interpretation, which is of course by design: That is what allows a modus vivendi to emerge.

Gay-rights activism is, just at the moment, very much oriented toward preventing the emergence of any social compromise on the matter of homosexual marriage, which is why tradition-minded florists and bakers, generally conservative Christians, are being targeted for prosecution as enemies of civil rights. In terms of government interest, homosexual couples planning wedding receptions in Connecticut are a good deal less compelling than were black Americans who were effectively circumscribed from public life — political, social, and economic — under the machinery of oppression constructed by Democrats after the Civil War. Among other things, the market provides same-sex couples plenty of other options. But gay-rights activists insist that the situations are morally and politically identical. That this view is rightly received with some skepticism by the general public — including much of the public inclined to support gay marriage and similar issues — is why the increasingly fanatical homosexual activists reject the notion that religious liberty might even be raised as an issue in the case of a wedding planner who does not wish to be involved in the blessing of a homosexual union. Their goal is a coercive coast-to-coast regime with no room for social compromise at all.

Gay Americans in Pennsylvania and Florida do not seem to have been very much burdened by those states’ RFRA statutes, nor by similar constitutional provisions in such bastions of reaction as Massachusetts and Minnesota. But individuals such as Jack Phillips of the Masterpiece Cakeshop in Colorado have been made into outlaws because their religious scruples compel them to forgo the custom of clients planning same-sex weddings. There is no guarantee that Indiana’s RFRA will prevent that sort of heavy-handed coercion in the Hoosier State, but it creates the opportunity for coming to a sensible arrangement that respects the dignity of all parties involved. And that, needless to say, is why the people who perversely call themselves liberals oppose it.