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Religious Freedom Restoration Acts Attempt to Legitimate Descrimination

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. This article is a response to David Hamstra's "A Framework for Balancing Competing Concerns: RFRAs and Adventists in the Public Square." -Ed.

I appreciate David Hamstra’s attempt to provide a reasoned and balanced analysis of the problems posed by recent state laws like Indiana’s SB 101 (so-called “Religious Freedom Restoration Acts” or RFRAs). Unfortunately, the reasonable tone belies several misleading characterizations and unacknowledged assumptions. SB 101 is an attempt to legitimate discrimination by business operators against a particular group of people for religious reasons, and to radically re-define how the free exercise clause of the first amendment has been understood for more than two centuries. Whether this establishment of a particular set of religious values is a good or bad thing is worthy of debate, but it should not be concealed beneath a faux argument about balancing equal and competing rights, or protecting freedom of religion.

The crux of the argument made by most RFRA advocates, including Mr. Hamstra, is that recent developments in the law and the popular culture have eroded the first amendment protections to the free exercise of religion, thus these need to be reinforced. Once legally reinforced, state courts will be entrusted to find the proper balance whenever the newly enhanced religious right bumps up against an equal protection right asserted by an individual. Without comment, or acknowledgement advocates like Mr. Hamstra write, as if everyone obviously agrees, that when a baker sells a cake to be consumed at a gay wedding it is a “meaningful involvement in gay weddings” that clearly infringes on the free exercise of religion. The problem is not that I disagree with Mr. Hamstra (though of course I do, and strongly) – the problem is that the conclusion he is so quietly assuming here is *the* main point in contention (can selling a wedding cake by a for-profit business enterprise be legitimately understood as part of the exercise of religion). In the old days we used to call this begging the question.

What is disingenuous in the argument is pretending that the so-called RFRA debate sparked in Indiana is about how to balance competing rights (to free exercise of religion on the one hand and equal protection under the law on the other). This is simply not true. The debate is about whether the traditional American right to the individual free exercise of religion (both in the private and the public spheres) should for the first time be radically transformed by giving it to corporations and other for-profit enterprises. The fact that the true nature of the debate is concealed by so many of its advocates is a clue that a majority of Americans would oppose such a radical change.

The definition and scope of the free exercise clause to the first amendment has been vigorously debated for more than a century, and is still not quite settled. Currently, a conservative Christian baker’s claim that selling a cake that will be served at a reception celebrating a gay wedding is a threat to his free exercise of religion is not consistent with operative Supreme Court rulings. Indeed, the reason Indiana needed to pass SB 101 is that the federal version of RFRA specifically only protects individuals from being forced to engage in behavior like this (the baker obviously could not be forced to attend the gay wedding or the reception, nor could the baker’s church be forced to host those ceremonies, nor could the baker’s pastor be forced to officiate at those ceremonies). SB 101 was not needed, even a little bit, to continue those individual free exercise protections. Furthermore, our sensitive baker could not be forced to remove signs from his place of business expressing his opposition to gay marriage, or his support for his particular interpretations of relevant Biblical passages. Our baker could march in protests against marriage equality, campaign against candidates that support marriage equality, and contribute money to organizations trying to end marriage equality. The only reason SB 101 was needed was to make a profound expansion of the zone of the claim of religious privilege, extending the protection to for-profit business enterprises, not just to individuals. I believe such an expansion is unconstitutional, immoral and damaging; but that is part of a debate that we are now engaged in, and we shall see how it comes out. But it is dishonest to pretend that this is not what the current debate is actually about.

Mr. Hofstra suggests that SB 101 is not discriminatory because it protects businesses’ right to deny service to people who engage in particular kinds of behavior (gay weddings), but not to people based on their membership in a particular group (gay people). But this is sophistry. The behavior in question is the wedding; the group membership in question is homosexual. The baker is free to say that he does not make wedding cakes of any kind, but it is discrimination pure and simple if he says he makes wedding cakes for straight people who are getting married, but not for LGBT people who are getting married. The equivalent argument would be if a white racist who ran a lunch counter back in the day claimed that denying service to black customers was not discrimination because he was not targeting black people (group membership) but black people eating (a particular activity).

One of the more serious weaknesses in the arguments of RFRA advocates is their studied avoidance of the damage and harm done to LGBT people by discriminatory business practices. Even when free exercise is properly restricted to its traditional, individual context, the harm done by any claimed religious exercise must be considered and carefully weighed. The absence of this consideration is particularly notable in Mr. Hofstra’s article, since it claims to be primarily interested in balancing competing claims, which always required a consideration of harm. Assuming that such harm is limited merely to the trivial inconvenience of having to drive a few blocks to the next bakery is insulting, given the context of a long history of legal and social oppression suffered by LGBT people, resulting, for example, in increased risk for suicide and other forms of self-harm. The implication that LGBT people are simply free to go to a gay-friendly baker invokes ugly and shameful echoes of earlier claims of “separate but equal” as an acceptable solution to attempts to deny equal protection to particular groups of Americans. Obviously I am not claiming that anyone is going to want to suicide because they have to go down the block to a different baker. I am claiming that reinforcing the message that LGBT people are second class citizens whose right to equal protection under the law is unrecognized can contribute to a wide range of damaging consequences, including those that increase the risk of suicide.

Another problem with Mr. Hofstra’s essay is its assumption of a disinterested attitude regarding any specific outcome – as if the argument for SB 101 is above the fray of any of the competing ideological camps. On the contrary, the record is clear that SB 101 was specifically drafted to try to end or at least curtail gay marriage in Indiana. The politicians who voted for or signed SB 101 are on record as opposing gay marriage, and of looking for ways to interfere with it. The Indiana governor invited officials from conservative religious advocacy groups that had long tried to find a way to ban gay marriage to the bill’s private signing ceremony. Attempts to portray SB 101 as an ideologically neutral attempt to find a fair balance between competing rights to the contrary, it is clear that SB 101 was conceived and executed as an attempt to stage an end run around the sting of advances for marriage equality and LGBT rights in this country over the last decade or so.

The obvious strategy being adopted by RFRA advocates is to change the debate from “do LGBT Americans deserve equal protection under the law?” to “do American’s deserve to be able to exercise their religion freely and without undue interference?” Changing the subject is an old and often successful political strategy, and I don’t begrudge those who want to restrict the rights of LGBT people the attempt – especially since over the last decade the tide of public opinion has change so dramatically in the direction of “yes” to the first question. Moreover, I am a very strong proponent of religious liberty, and would take a second place to nobody in defending real free exercise of religion. But when a religious group seeks government sanction to impose its particular religious views on public commerce, that is not an exercise of the first amendment right to freedom of religion, it is in fact the opposite – an attempt to covertly establish one particular set of religious values in the public square. The same argument could easily be used to justify denial of equal protection in the for-profit exchange of goods and services to people engaged in interracial marriages, or to Jews by Christians, Muslims by Jews, Catholics by Adventists, or Adventists by Apostate Protestants. Adventists more than anyone else should be alarmed by this.

Aubyn Fulton, PhD, is Professor of Psychology with an emphasis on Clinical Psychology at Pacific Union College.

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