A Framework for Balancing Competing Concerns: RFRAs and Adventists in the Public Square

Indiana’s recent passsage of the Religious Freedom Restoration Act, which provides that a state or local government action may not substantially burden a person’s right to the exercise of religion—particularly, though not exclusively applied to providing services to same-sex couples—has prompted national debate on whether the legislation enshrines unconstitutional discrimination and what rights individuals and businesses still have. In this Spectrum Roundtable, Pastor David Hamstra and Professor Aubyn Fulton discuss the ramifications of the legislation and propose ways forward, particularly for people of faith. -Ed.

How should American Seventh-day Adventists respond to the controversy over Religious Freedom Restoration Acts (RFRAs) and gay marriage? Some would say it should be easily resolved in favor of our fundamental commitment to religious liberty. But Adventists also hold a historic ideal of equal protection under the law, stemming from our abolitionist heritage, which requires us to consider the civil rights of gay people as they relate to non-discrimination.¹

Let me be clear from the start. In this essay I’m proposing a framework through which we can advocate for a just public policy.  For the purposes of this essay, I’m taking gay marriage as a legal given. And most importantly, I’m not suggesting nor prescribing how Adventists should treat gay people on an individual or ecclesial level, which is a critical conversation, but beyond the scope of this essay.

Legal Considerations
As people who value both religious liberty and non-discrimination, Adventists should align with those legal analysts who assert that the media has been caught up in a fear mongering exercise on this issue, abetted by activists on the right and left who claim much more for state RFRAs than the evidence suggests in order to polarize the public onto their side. The famous Bob Jones University case showed that the legal standard that RFRAs apply does not allow even non-profit, religious corporations to skirt anti-discrimination law. And every RFRA challenge to anti-discrimination law has failed. Given the above, I conclude it is unlikely that a state-level RFRA, even one that protects corporations and covers individual lawsuits, would produce an outcome that would allow a business to opt out of a gay wedding.

So given that I think the legal relevance of RFRAs to businesses opting out of gay weddings is largely hypothetical, why should I care what Adventists think about them? Because even though state RFRAs seem unlikely to do what right-wing activists want them to do, by stopping RFRAs left-wing activists create legal environments wherein RFRAs are not available to do what they actually do. That’s a world in which jails force Muslim inmates to shave their beards, Adventists can’t claim employment insurance if they’re fired for not working on Sabbath, and Jehovah’s Witnesses die because their state insurance won’t provide surgery without blood transfusion. The activist left judges these actual abuses as a risk we need to take in order to stop a flawed RFRA that might allow court challenges to anti-discrimination legislation to succeed, even when in the real world such challenges have not succeeded.

Discrimination?
So if American Adventists should be generally in favor of state RFRAs for the reasons I outlined above, does it inevitably follow that we must be in favor of discrimination? I don’t want to live in a world where people have to check their conscience at the door when they enter the world of business. But I also don’t want to live in a world where gay people are systematically denied public accommodations. Nevertheless, I question whether the “pizzeria” outrage is really about discrimination as such.

“Discrimination is treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit.”²

According to that common definition,³ refusing to have a meaningful involvement⁴ in gay weddings based on one’s appraisal of the merits of such weddings while being willing to do business with gay people as a group in any other context is not discrimination. The small bakery owner who says they will do business with gays but cannot have a meaningful involvement in gay weddings for reasons of conscience would presumably have no problem making a wedding cake for a gay person entering into a traditional marriage.⁵ So such a baker cannot be said to be discriminating against gays as a group, unless one argues for an amoral marketplace in which the merits on which a business relationship is appraised cannot include a moral evaluation of the outcome.⁶ But in real-world capitalism that happens all the time, and in other contexts no one has a problem with it.⁷

But going beyond discrimination as such, it reasonable to infer that because gays as a group are protected from discrimination, the law should by extension prohibit moral evaluation of gay marriage from entering into the merits on which a business relationship with a gay person may be appraised. The idea is that allowing small businesses to opt out of meaningful involvement in gay weddings could create spaces in the public square where gay people would not be able to access a sector of the service economy that is necessary for modern life, and that cannot be risked because of the ugly history of discrimination against gays in America.

This line of reasoning is persuasive, all other things being equal. But in the case of small business owners with religious convictions it ignores that freedom of religion is also protected because of the ugly history of state authority being used to coerce the conscience. Not allowing businesses to opt out of meaningful involvement in gay weddings could also create sectors of the economy where people who must conscientiously do so loose their livelihood. Which is worse, having to look elsewhere for wedding supplies, or loosing ones job and possibly ones equity?

Rather than staking out an absolutist position that one freedom or the other must always triumph, Adventists should advocate for compromises that establish a balance between the competing claims of freedom of religion and freedom from discrimination. Allowing narrow protection for small business owners who are unable to be meaningfully involved in gay weddings for reasons of conscience would accomplish the overall goal of ensuring gay people have access to the broad range of services while protecting small business owners from having to choose between their livelihood and their convictions.

Balancing Concerns
Unfortunately, in the media storm surrounding RFRAs, competing concerns were often not presented as needing balance. Liberal political rhetoric seeks to identify a group of victims and rally sympathy for them in order to justify handing them power over their oppressors.⁸ This narrow focus results in the right outcome in clear-cut cases of systematic oppression (e.g. Jim Crow), but it is a travesty in cases where competing concerns need to be balanced such that one side doesn’t gain power over the other. Those who tend toward a liberal view of politics need to be aware of this blind-spot and the long history of groups liberals have anointed as victims (and those claiming to act in their name and associated with their cause) going on to abuse the power handed to them.

Right and left wing activists know the media are sympathetic to victim narratives and play to that bias. I hear gay people talk about being marginalized by gay bashers and Christian nationalists. I hear people who hold a traditional sexual ethic talk about being marginalized by media elites and the “new atheists.” Each side is trying to paint the other as the oppressor and claim the power of victimhood.

So what happens when we’ve heard everyone’s story of oppression and need to make a decision, but we don’t agree on whether one side should get power transferred to them? Do we simply choose sides and battle it out until might makes right?

The belief that we can right all the wrongs of the world by an exclusive focus on transferring power to victims is nothing but an attempt to accomplish by force⁹ what only Christ can accomplish by love.¹⁰ I’m not saying empowering the oppressed is a bad idea; rather, it’s generally a good idea. But it’s not the only consideration if we want a just allocation of power. Other concerns need to be balanced with empowering the oppressed, and in the case of RFRAs and gay marriage those include individual liberty and traditional institutions.

We need individual liberty because power transfers to victims historically have resulted tyranny, a state in which an individual’s status depends on their usefulness to the goals of the state. Against the liberal tendency toward tyranny, libertarians champion concern for individual liberty by empowering the individual through the protection of human rights.

We need traditional institutions because power transfers to victims have also resulted in totalitarianism, a state in which values must be expressed by the state or not at all. Against the liberal tendency toward totalitarianism, conservatives champion concern for traditional institutions, which reduce the need for the application of the force of law and provide opportunities for people can express their highest values apart from the state.

It goes without saying for a liberal audience that exclusive concern for traditional institutions and individual liberty will result in oppression if not properly balanced with a concern for the marginalized.¹¹ So the pertinence of these (and potentially other)¹² concerns to power allocation enacted by a law must each be weighed against the others in order to arrive at a relatively just distribution of power.¹³

Until such time as Jesus comes and restores absolute justice, we can only approximate it by balancing competing concerns. And balancing freedom from discrimination with freedom of religion isn’t going to happen if we only focus on taking power from privileged Christian oppressors and handing it to marginalized gay victims. A narrow exemption for small-business owners to conscientiously opt out of meaningful involvement in gay weddings is a sensible way to accomplish the liberal goal of freedom from discrimination while curbing the totalitarian excess of coercing some religious small business owners to act against their values when appraising the merits of their business relationships and the tyrannical excess of empowering gays at the expense of small business owners’ human right to freedom of religion.

The Death of Religious Liberty
Freedom from meaningful involvement in that which one cannot in good conscience involve oneself is not freedom of speech, association, or freedom from discrimination. It is freedom of religion. What I find most troublesome about the online discussions about RFRAs I’ve participated in is that religious liberty is subsumed under freedom of speech, association, and freedom from discrimination, such that if religious liberty does not serve those other goals, it cannot be justified.¹⁴ That tells me that for a lot of smart people my age, religious liberty has accomplished everything it needed to in our society and is effectively dead.

That’s sad, because by requiring the state to acknowledge the prior claims of transcendent pursuits on its citizens and society, freedom of religion protects us more than any other human right from the totalitarian impulse to dictate the meaning of our individual lives and collective pursuits in accordance with the state’s conception of greater good. And that’s the principle—people pursue higher goals than the state—upon which all other liberties depend.

It seems we have come to this place because, by denying the transcendent, secularism has propagated itself amongst our society’s elites as a system of universal values that doesn’t have to play by the rules that those religions which acknowledge the transcendent have to play by. Thus, the practices of traditional, non-secular religions are seen as able to be tolerated only to the extent that they don’t conflict with the universal values of secularism. When in fact, secularism is a particular worldview, has a religious provenance, and functions as a godless religion.¹⁵ It can make no more claim to universal values than can any other religion, and therefore cannot function as a public standard by which to judge the consciences of traditionally religious people or relegate beliefs and practices of traditional religions that conflict with secular values.

However, among secularists, religious liberty has come to mean allowing traditional religions wide latitude with respect to beliefs and practices that have no bearing on public life, while using the coercive force of law to nudge them toward secular values where they conflict with secular conceptions of liberty. As more and more Americans report that traditional religion makes little difference in their daily life, I fear we may be headed toward a new totalitarianism wherein those who have no sense of the transcendent are left with the state as the most powerful vehicle through which to enact their highest values. I predict they will seek increasing levels of freedom from traditional religion, while not granting traditional religious a corresponding freedom from secularism. Because society cannot function without shared values, this will in effect mean imposing the values of secularism on the public square as a de facto but unacknowledged religion.

I propose Adventists should be advancing the kinds of “public reason” based arguments I have employed above, not only because they align with our political theology but also because they bolster a notion of the common good. We have tended to take for granted the extent to which the American version of religious liberty depended on a mutual “Do unto others …” reciprocity with groups whose highest values differ from our own.

Secular liberals can be asked, You may not see yourself as doing to religious people what they once did to you, but if and when religion makes a comeback, do you want it to turn to your example of how the oppressed can impose their values on the powerful to justify theocracy? And in return we must be willing to take a strong moral and political stand for freedom from discrimination for oppressed groups, even if we disagree with the moral decisions of many of their members. If we only stand for the concerns of those we morally agree with, our religious liberty activism will be quickly seen as a fig leaf and dismissed for the naked self-interest it will have become.

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1.  “We hold that all people, regardless of their sexual orientation, are loved by God. We do not condone singling out any group for scorn and derision, let alone abuse.” Seventh-day Adventist Church, “Same Sex Unions”, 2012.
    
2. Wikipedia, “Discrimination”, accessed April 15, 2015.
    
3. This is a common sense, dictionary definition, not a legal definition. Our church has religious liberty lawyers who are trained in proposing legal definitions based on the values we want to express, and we need to give them the leeway to do so.
    
4. I purposefully use a somewhat vague term as, again, I am not proposing a legal standard, but rather am arguing for a framework in which to propose such standards. Nevertheless, as I see it at the least “meaningful involvement” ought to exclude involvement one or more steps removed from the actual outcome to which one objects (e.g. objecting to selling flowers to a hotel that might host a gay wedding).
    
5. Yes, it does happen.
    
6. At this point, some will ask whether this would allow for religious objections to meaningful involvement in inter-racial marriages. Everything I say here also applies to a hypothetical Jewish small-business owner who, for religious reasons, refuses to cater a wedding of an ethnic Jew to an ethnic non-Jew because of religious teachings of Judaism on that kind of interracial marriage. Those who oppose any interracial marriage, who have a high-hurdle to clear to demonstrate that it is a matter of conscience and not simply blanket discrimination.
    
7. For example, on the TV-show, Shark Tank, It’s quite common for investors to decline a business relationship because of a values conflict, even while acknowledging that it might be good investment. They’ll say things like, I don’t believe in astrology; I think people already spend too much on their pets; or, this goes against what I stand for. They evaluate the outcome of what otherwise would be a profitable business relationship, find that it conflicts with their values, and reject it on moral grounds. Bands also do this when they refuse to license their music to be played at rallies for politicians whose views they disagree with.
    
8. In this section I am indebted to and building on the work of Arnold Kling in his short e-book “The Three Languages of Politics.”
    
9. What is the law, except the regulation of force?
    
10. This excerpt from the writings of René Girard brilliantly exposes this dynamic.
     
11. Typically liberals frame the oppressor/oppression dynamic in terms of groups. Whereas the libertarians frame it in terms of individuals, such that a transfer of power to an otherwise powerful individual who is a member of an already powerful group could be justified if their human rights were being infringed in some other way. And for conservatives, transferring more power to an already powerful traditional institution can be justified if it requires more power in order to benefit society. If left unchecked, these power transfers to powerful persons or institutions result in oppression of the powerless through the libertarian tendency toward plutocracy and the conservative tendency toward authoritarianism, respectively.
     
12. The three concerns I deal with are not an exhaustive list, and I’m sure others could be added such as care for the environment, which doesn’t always align with empowering the oppressed, individual liberty or traditional institutions.
     
13. These are not absolute categories, but rather tendencies that make us susceptible to certain rhetorical styles.
     
14. The argument that wedding photographers and bakers should not be forced to make creative works that conflict with their values is based on freedom of speech. The argument that wedding service providers should not be forced to attend a gay wedding is based on freedom of association. The argument that wedding service providers should not be driven from society for beliefs they cannot change is a freedom from discrimination argument.
     
15. The CBC Ideas series, “The Myth of the Secular,” ought to be required listening for those interested in religious liberty.
     
16. Public reason is a level of discourse that appeals to assumptions and values that a people from a broad range of religious and political backgrounds can accept.

Read Aubyn Fulton’s response here: “Religious Freedom Restoration Acts Attempt to Legitimate Descrimination.”

Born and raised in Minnesota, David Hamstra is the pastor of the Fort McMurray Seventh-day Adventist Church in Alberta, Canada.