Indiana Governor
Mike Pence is not the first Republican to
use the First Amendment as a weapon to deny equal rights for some Americans. And Pence won’t be the last conservative caught in the blowback from civil rights groups, corporate leaders and even some Christian churches. That’s because as marriage equality continues to win in the courts of law and public opinion, conservatives are turning the First Amendment's freedom of religion protections into a cudgel to beat back others’ speech and behavior they find offensive.
Governor Pence signed Indiana’s new Religious Freedom’s Restoration Act not only “because I support the freedom of religion for every Hoosier of every faith,” but because “many people of faith feel their religious liberty is under attack by government action.” Pence has plenty of company among the 2016 Republican White House hopefuls. While Senator Ted Cruz (R-TX) has warned, “Religious liberty has never been more under attack,” his Louisiana rival Bobby Jindal declared, “Make no mistake," Jindal said, "The war over religious liberty is the war over free speech and without the first there is no such thing as the second.” But it was front-runner Jeb Bush who gave the game away in expressing his opinion about same-sex marriage:
“I hope that we can show respect for the good people on all sides of the gay and lesbian marriage issue - including couples making lifetime commitments to each other who are seeking greater legal protections and those of us who believe marriage is a sacrament and want to safeguard religious liberty.”
Unfortunately, Bush’s posture, which
one Republican strategist described as “a new way to talk to about same-sex marriage,” is little different than the
religious liberty justifications segregationists used to defend Jim Crow and its bans on interracial marriage. Just as important, the
new wave of GOP legislation to enable discrimination against LGBT Americans is a perversion of the federal Religious Freedom Restoration Act signed into law by Democratic President Bill Clinton.
Ironically, the federal RFRA law was the congressional response to a ruling by Justice Antonin Scalia in the 1990 case of Employment Division v. Smith.
Continue reading more on this story below.
Scalia wrote the majority opinion rejecting the claims of two Native Americans denied unemployment benefits for having ingested peyote in keeping with their religious practices. "To permit this," he proclaimed in Smith, "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
"The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," he wrote, "ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."
It was this result, decried on both sides of the aisle, that Congress sought to address with the
federal Religious Freedom Restoration Act of 1993. But as congressional RFRA architect Jerry Nadler explained, the law was designed to protect the private practice of religious faith from unreasonable government intrusion, not to empower employers to impose their religious beliefs on their workers.
“It was never intended as a sword as opposed to a shield. Once you went into the commercial sector, you couldn’t claim a religious liberty to discriminate against somebody. That never came up. It was completely obvious we weren’t talking about that.”
Completely obvious, that is, to everyone but the majority on the Roberts Court. In last year’s
Hobby Lobby decision, the majority led by Justice Samuel Alito ruled that the federal government could not “substantially burden religious exercise” of a closely held private business unless there is a compelling interest met in the least restrictive means. And when the Supreme Court blessed the religious objections of companies to providing health insurance including birth control coverage, the Justices opened the door for businesses to selectively discriminate against women, gay and lesbian Americans, or pretty much anyone else who somehow shocked their corporate consciences. It’s no wonder Justice Ruth Bader Ginsburg called Alito's opinion a “decision of startling breadth.”
While a total of 20 states now have their own religious freedom statutes (the federal RFRA law does not apply to the states), Mississippi and Indiana are the only one to pass laws in the wake of the Court’s Hobby Lobby ruling. But as Joy Waltemoth documented this week, the Hoosier State hate law is far broader than either the federal law or the scope of the Hobby Lobby precedent. It’s not just that Senate Bill 101 “will apply to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including their implementation or application—regardless of whether they were enacted, adopted, or initiated before, on, or after the law’s effective date of July 1, 2015.” As Jeffrey Pasek explained to Employment Law Journal, “it allows individuals to claim exemptions from neutral government mandates even in cases in which the government is not involved.”
“It would fall to the individual who is being discriminated against to attempt to justify an otherwise neutral law by asserting that the government has a compelling interest in enforcing the law, but nothing in this bill says the government has to get involved in those cases…
Without support of the government, how can any individual job applicant, wedding cake purchaser, or would-be apartment renter be able to uphold the government’s interest? How will such a person be able to compile and present evidence of an actual government interest and not just a theoretical interest? Also, how can a would-be plaintiff in one of these cases establish a less burdensome alternative when the government is the one that would have to choose that alternative and has not been asked for its opinion? In short, this bill goes way beyond the RFRA because it leaves religious objectors in a position where they are much less likely to be challenged and much more likely to prevail.”
Faced with a
backlash from civil rights groups and the business community inside Indiana and out, Governor Pence claimed, “This law is not about discrimination,” but “about protecting religious liberty and giving people full access to the judicial system." His smokescreen is belied not just by
one prominent Indiana restaurant owner boasting that the law will protect anti-gay discrimination he already practices. When a
Georgia legislator added an amendment to that state’s pending RFRA bill that
would not allow claims of religious liberty to be used to circumvent state and local nondiscrimination protections, the legislation stalled.
Of course, a simple way to pierce the bubble of Indiana’s supposed non-discriminatory intent is to put the shoe on the other foot. Imagine the right-wing response when Notre Dame students are refused apartment rentals from an atheist landlord in South Bend. What will happen when the Hammond House of Halal won’t serve a customer wearing a T-shirt proclaiming, “Jerusalem: The Eternal Capital of Israel?” Bryan Fischer of the American Family Association and Tony Perkins of the Family Research Council will be shit out of luck when the very gay and very devout disciples of Christ Church who own Indianapolis’ ultra-chic Maison Soixante Neuf deny them a table. The number of court cases in which some “people of faith” could end up on the short end of the GOP’s notion of religious liberty is almost endless.
What’s happening in Indiana, Arkansas and Georgia is all the more striking given the recent right-wing response to the Charlie Hebdo massacre in Paris. Conservatives brushed off Muslim sensitivities over depictions of the Prophet Muhammad. In "Blasphemy for Me, But Not for Thee," Matthew Continetti defended the "the right to offend" and accused liberals of failing to support it. National Review editor Rich Lowry offered a corollary in "The Crisis of Free Speech," proclaiming that there is no right not to be offended. In so doing, both men have done a great public service by highlighting the shameful hypocrisy of the phony "religious liberty" crusade now being waged by the Republican Party and its religious right allies.
Lowry, whose primary claim to fame was "sitting up straighter" in response to Sarah Palin's "starbursts," put his latest epiphany this way:
Domestically, we should foster a robust culture of free speech that forswears the insidious logic of "your right to free speech ends where my right not to be offended begins."
Unfortunately for Lowry and his fellow travelers, that "insidious logic" is at the very center of the campaign by the
religious freedom frauds of the Republican Party.
Now, Mike Pence and most of the GOP leadership want to cement in law a right for some Americans not be offended by the mere presence of people whose ideas and lovers and families—and very existence—they find uncomfortable or unholy. But the Constitution’s religious liberty is a “negative liberty,” providing protection from the government, not the power to impose on others. The religious freedom enshrined in the First and Fourteenth Amendments and laws like the federal Religious Freedom Restoration Act should act as a shield to protect Americans of all faiths (or no faith) from the heavy hand of government, not to as a sword to slay the wicked.
