Category Archives: Religious Liberty

RFRA, Language, WorldViews

A couple of days ago, a group of Indiana Pastors gathered at the Statehouse to deliver a long letter accusing the Governor and legislators of “betrayal” for amending RFRA to include a modicum of civil rights protections for LGBT Hoosiers.

I encourage readers to click through and read the letter in its entirety, because it is a (rather chilling) window into a world in which words like “liberty” mean something very different from their meaning in the world I inhabit.

This “fixed” RFRA legislation has opened the door to a trampling of our liberties….You received godly counsel from strong and knowledgeable leaders from across our nation who encouraged you to stand strong and to veto this legislation. You failed. In doing so, you betrayed the trust of millions of Hoosiers who elected you to protect the liberties we hold dear….

You state that you are committed to an Indiana where religious rights and individual rights coexist in harmony. While this sounds wonderful, we all know that the demands of the LGBT lobby make this untenable with those who profess faith in Christ and faithfulness to the Scriptures. It was clear from the press conference that the next “discussion” will involve the creation of sexual orientation and gender identity as a special protected class in Indiana. Leadership from the gay community told all who were listening that this will become a reality in Indiana….

God’s Word is very clear about the proper expression of human sexuality, and homosexuality is one of a variety of sexual behaviors God expressly condemns. For Christians, therefore, sexual sins can never be treated as civil rights.

There is much, much more.

Let me be clear: drawing a line between the right of people to the free exercise of their belief systems–no matter how foreign or even repugnant those beliefs may be to other Americans–and the civil rights of their fellow citizens is not simple, nor is the placement of that line uncontested. The Pastors’ letter highlights a consistent and probably unavoidable tension in an America that values both liberty and equality.

That said, the letter vividly demonstrates the worldview of would-be theocrats who believe they speak for God– who believe they have the right to demand laws that privilege their beliefs and impose them on everyone else, and who believe that failure to occupy that privileged legal position victimizes them.

This is the worldview of the Taliban.

As Long As We’re Talking About Religious Liberty…

Can we at least examine whose religion deserves to be “protected” by giving businesses an exemption from otherwise applicable civil rights laws?

Despite the ignominious fate of RFRA (the so-called “Religious Freedom Restoration Act”) in Indiana, other states–most notably Louisiana–are moving to enact similar measures. Louisiana’s increasingly bizarre Governor, Bobby Jindal, insists that he won’t be dissuaded by crass business interests from “protecting religious liberty.”

The rhetoric around this issue would have us believe that measures like RFRA are needed to protect a monolithic and undifferentiated Christianity from the vast secular army bent on its destruction. So we see Mike Huckabee warning that the “criminalization of Christianity” is imminent, while Shawn Hannity recently proclaimed that the “three most persecuted groups in America today are Christians, the wealthy, and white males.”

I don’t know what planet Huckabee and Hannity live on, and there is no point in debating people who’ve clearly been drinking the kool-aid. But as a non-Christian, I do want to stick up for the numerous thoughtful and actually “Christian” Christians who are getting a bad name from these culture warriors who claim to speak for them.

As Political Animal recently reported,

Next time you hear somebody talk about “Christians” being opposed to same-sex marriage, or being “persecuted” for their refusal to acknowledge same-sex marriages, you might want to direct them to fresh data from the Public Religion Research Institute about the different attitudes of different denominational categories of religious folk on this subject (h/t Sarah Posner).

PRRI shows that while white evangelical Protestants do indeed oppose same-sex marriage by a 28/66 margin, white mainline Protestants support it by a significantly larger margin (62/30) than the general public (54/38). And if you want to believe us mainliners are a dying breed, there’s U.S. Catholics, who despite their church’s teaching support marriage equality by 60/30.

There are also plenty of Christian churches that support reproductive choice.

I personally know a lot of Christians who read their bibles for clues on how to be better, kinder people, rather than for evidence of their moral superiority and their right to tell everyone else how to live.

In fact, the only “embattled” Christians I’m aware of are the theocrats who find it intolerable to live under a system that accords heretics and nonbelievers an equal place at the civic table.

People like Jindal, Huckabee and Hannity look a lot more like the Taliban than like the good Christians I know.

Corporations and the First Amendment

We live in an era when everything–every case decided by the Courts, every law passed by Congress or a state legislature, every encounter between police and citizens–generates frightening headlines, hysterical tweets, and multiple emails from activist organizations exhorting recipients to take action (usually involving signing a petition and sending money).

So it’s easy to become jaded, to attribute the decibel level to partisanship, or a lack of perspective or analysis. I know I increasingly find myself thinking “just chill out. This isn’t the end of the world. Get a grip.”

Some things, however, prove to be every bit as worrisome as the scolds and screamers predicted. A grim assessment from a recent Harvard study suggests that the consequences of Citizens United and the line of cases leading up to it have been even more damaging than we were warned at the time.

Some of the study’s key findings include

While the First Amendment was intended to protect individual freedom of religion, speech and assembly, as well as a free press, corporations have begun to displace individuals as its direct beneficiaries. This “shift from individual to business First Amendment cases is recent but accelerating.”

Over time the high court has shown an increasing willingness to rule in favor of corporate interests, as a result “reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”…

The ability for corporations to obtain relief from the courts gives them incentive to “place bets not on new technologies or marketing strategies, but on legal and political ‘innovation’” to protect markets they have and exclude new entrants. This also has the effect of causing regulatory agencies to reduce their efforts, because enforcing existing laws becomes increasingly difficult….

American public discourse tends to be very bipolar and “zero sum.” Policies are either right or wrong, good or bad. A right accorded to X must mean diminished rights for Y.

In the real world, however, the goal of policy is more often than not to achieve an appropriate balance between or among competing interests, all of whom are entitled to have their rights respected. Most Americans would agree that businesses have the right to participate in the marketplace of ideas, and that the law should respect the fiction of corporate “personhood” in the contexts for which that personhood was originally created.

It is when Court decisions and legislative actions create troubling imbalances of power, we risk substantial damage to our social ecosystem. Cases like Citizens United and Hobby Lobby have upset that balance, empowering corporations while disempowering individual citizens.

“These findings present a challenge to the view, articulated by the majority and concurrences in Citizens United and Hobby Lobby, that corporations and other business entities should be understood ‘simply’ as aggregations or associations of individuals, and so should not be distinguished from them for purposes of First Amendment analysis,” the author writes in his conclusion, continuing: “The corporate takeover of the First Amendment represents a pure redistribution of power over law with no efficiency gain — ‘rent seeking’ in economic jargon. That power is taken from ordinary individuals with identities and interests as voters, owners and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.”

Sometimes, the decibels are appropriate.

Cakes, Pork Chops and SB 101

Okay, this is sufficiently annoying that it justifies an “extra” post.

Defenders of SB 101 keep talking about the baker’s right to refuse to bake a cake with a swastika or the Muslim or Kosher butcher who the law “protects” from having to handle pork.

Excuse my french, but this is bull****.

If I go into a menswear shop and ask for a dress, am I being discriminated against when I’m informed the store doesn’t sell women’s clothes? Of course not.

Civil rights protections don’t require the baker who doesn’t bake swastika cakes, or the butcher who never sells pork to do so. Civil rights laws do keep the baker from refusing to sell the cakes he does make to “certain people” (And yes, that means that he has to sell the cakes he does make to the skinhead who comes into his shop, provided the skinhead is behaving himself and has money with which to make the purchase.)

The kosher butcher doesn’t have to carry pork, but he does have to sell his kosher chickens and beef to Muslim or Christian or even anti-Semitic customers, again, so long as those customers can pay and are abiding by the generally applicable rules of the shop.

Clear?

 

Sending a Message–Updated

Back in 2000, I wrote a column for the Indiana Word about the use of legislation to “send a message.” Following passage of the so-called “Religious Freedom” bill, it seemed appropriate to revisit the points raised.

After all, hateful Hoosiers who want to discriminate against their LGBT neighbors can already do so with impunity–Indiana’s civil rights laws do not protect gay citizens. Same-sex marriages may be legal in Indiana, but gay Hoosiers can still be denied services, refused employment and/or fired just for being gay. So to the extent that SB 101 is aimed at permitting discrimination against members of the gay community, it’s totally unnecessary. Unless, of course, our lawmakers want to “send a message.”

As I pointed out back in 2000:

With all due respect to all the folks who want to use the General Assembly instead of Western Union, such an approach to lawmaking is wrongheaded and dangerous for a number of reasons.

1.) It trivializes the law. When the legislature passed measures to criminalize private sexual behavior, for example, no one seriously believed that the local constable was going to come into every bedroom to check for violations. Such measures were justified because they “sent a message.” And indeed they do, which brings us to the next problem. See Paragraph 2.

2.) Such laws send different messages to different people. Before they were struck down, sodomy laws “sent a message” to gays that they are second-class citizens. Laws making women submit to multiple “counseling sessions” or vaginal probes in order to obtain abortions signal legislative contempt for women, not respect for life. See Paragraph 3.

3.) They promote pandering. When lawmakers know perfectly well that they are engaging in a meaningless gesture, the urge to satisfy extremist constituencies can easily be justified; after all, where’s the harm?  Indiana, like many states, passed the Defense of Marriage Act to “send a message” that satisfied the Christian Right; lawmakers defended their actions to rational folks by pointing out, quite correctly, that the law hurt no one, because at the time there was no gay marriage to refuse to recognize. It was a model example of “Law as an Empty Gesture.” Of course, to gay citizens, it sent a different message. See paragraph two.

4.) “Messages” inconsistent with Constitutional values distort the balance of power in our legal system. When this original column was written, in 2000, lawmakers had just authorized posting the Ten Commandments in public buildings. Of course, that was patently unconstitutional, and lawmakers knew it. When I asked a State Representative why he and others were voting for a measure they knew would be struck down, his answer was candid: “We all have to go back and justify ourselves to the voters in Mayberry. Let the Courts take the heat.”

When lawmakers engage in this sort of unethical game playing, it feeds hostility to the judicial system, which must protect individual rights by voiding such improper and cynical measures. That hostility further erodes respect for law, and that brings us full circle. See Paragraph 1.

In the case of SB 101, we might add another likely consequence: although the measure doesn’t change Indiana laws that apply to gay folks, it may well encourage “religious” refusals to serve or employ Muslims or blacks or other Hoosiers who currently are protected under the state civil rights laws. It will almost certainly spawn expensive litigation. And it seems likely to cost Indianapolis (whose citizens by and large opposed the measure) several conventions and the economic benefits that those conventions bring.

Because the General Assembly did, indeed, “send a message.” And a lot of people received it.