By Kristina Arriaga
Thursday, April 23, 2015
Here we go again. North Carolina is considering a version
of the Religious Freedom Restoration Act—the same kind of legislation that
recently caused quite a stir in Indiana. Within hours of signing that bill,
there were accusations of discrimination and threats of economic boycotts
against the state. Pizzeria owners who shared their opinion about the ongoing
public debate were threatened and had to go into hiding.
I was vividly reminded of my own family’s experience with
the complexities of freedom. For the first several years of our exile from Cuba
in Puerto Rico, when my father got home, the first thing he would do was close
the kitchen window as he said: “Just in case.”
The “just in case” meant he did not want our neighbors,
whose townhouse was a mere ten feet away, to hear anything we said at home. It
was a habit he had acquired before he left Cuba as he watched his neighbors
and, eventually, his own brother, get arrested for things said at dinnertime.
As we all grew accustomed to freedom, we opened that one
window—boisterously opining on the ongoing sexual revolution, politics, and religion.
Every Sunday, extended family crowded the kitchen as we drank from the fountain
of freedom of expression, sometimes until someone was offended or threw a
plate. Or both.
Private Business Is Private Business—Right?
We believed that what we said at the kitchen table or how
we conducted our lives was not a matter for government regulation. Until
recently. A bill with wide public support in Indiana suddenly became the target
of a nationwide campaign by activists and the media. In a complete upside-down
spin, the bill to protect religious people from discrimination was attacked as
bigoted. Before the media storm was over, a “fix” was pushed through under the
banner of tolerance. The “fix” actually clipped the wings of freedom of
expression and association the law had been intended to support.
Adding to the uproar were the actions of organizations
such as the American Civil Liberties Union. Known in the past to defend freedom
of speech, even when the speech was repulsive—as in the Nazi party marching
through a suburb populated by Holocaust survivors—in this case the ACLU
advocated restricting freedom. Bizarrely, they even expressed support for the
idea that a gay photographer should be forced to photograph an event at the
famously homophobic Westboro Baptist Church.
Much of the uninformed reaction rose from the
hypotheticals raised: the gay man who walks into a restaurant and the
restaurant refuses to serve him in the name of religion. The hypotheticals were
as repulsive as they were powerful. The image raised in the American psyche was
that of an embarrassing Jim Crow past.
But these imagined scenarios and the hysteria that
followed do not serve freedom. Facts do. Since the passage of the federal
version of RFRA, there has not been one single case when an exemption to an
anti-discrimination law was granted under RFRA. Not one.
Protecting Free Speech and Association Promotes a
Peaceful Society
Opponents will argue that with the advent of same-sex
marriage, times have changed. But Professor Douglas Laycock, a supporter of
same-sex marriage, provides a powerful response: sexual and religious
minorities “make essentially parallel and mutually reinforcing claims against
the larger society.” Namely, “[t]hey claim that some aspects of human identity
are so fundamental that they should be left to each individual, free of all
nonessential regulation, even when manifested in conduct.”
When those claims conflict—such as when a Christian baker
is asked to provide a cake for a same-sex wedding—we must balance competing
interests. We must weigh the harm inflicted on the same-sex couple (the
inconvenience of finding services elsewhere, and the insult to their dignity)
against the harm inflicted on the religious person (violating their deep
religious commitments). That is why RFRA does not automatically side with one
or the other. Instead it gives both claims a day in court.
In America, it is precisely our belief in freedom of
speech, association, and religion that allows us to live in peace and with
mutual respect even when standing shoulder to shoulder with people who may have
offensive views and who disagree on matters that go to the core of who we are.
So, while I brace myself for the media storm that may
follow the introduction of more legislation in North Carolina, I am also
optimistic. I have great faith in the American people. In mid-April, the
National Constitution Center held Freedom Day—a la Earth Day. Liberals,
libertarians and conservatives met and debated religious liberty. There was a
lot of disagreement, but there were a few kumbaya moments where we all agreed.
After all, why can’t we agree? Americans support
religious liberty and are repulsed by the idea of government coercion. I
believe we can cast aside what separates us. After all, in the heart of every
American—of every political persuasion—is the desire to live in a country where
one should never have to close the kitchen window “just in case.”
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