Are there still liberals willing to speak up for religious freedom? I don’t know whether the religious freedom bill passed and signed in Indiana last week—and now reportedly up for revision—is a good measure. I do know that, however one precisely balances out the pros and cons of the bill, it does involve religious freedom.
That was not the perspective of the front-page story in Saturday’s New York Times, which framed the bill as one more tactic for discriminating against gay couples. Conservatives opposed to same-sex marriage were “invoking ‘religious freedom’ as their last line of defense.”
No doubt some conservatives would invoke anything short of global warning as a last-line defense against same-sex marriage. But is it really beyond imagining that many conservatives and non-conservatives, too, might be genuinely agitated about religious freedom for its own sake? Certainly beyond imagining by Hillary Clinton, who was quick to tweet, “Sad this new Indiana law can happen in America today.” Beyond imagining by all the technology, business, and sports and entertainment eminences now bullying Indiana with boycotts, not that these folks ever cared much (or knew much) about religious freedom in the first place.
The Times news story devoted almost two thirds of its coverage to these critics, far more than to any supporters or to Indiana’s governor. It did spare two paragraphs for a quote from Douglas Laycock, one of the nation’s foremost church-state scholars. “The hysteria over this law is so unjustified,” he said, rejecting the anti-gay sentiments being attributed to it.
I’ve been following and admiring Professor Laycock’s views on religious freedom controversies for years (his mixed evaluation of the Catholic bishops’ venture into these waters can be found in the June 15, 2012 issue of Commonweal); I have no idea whether to classify him as liberal or conservative. Unfortunately, his full explanation of what the Indiana law actually says and is likely to do appears in the conservative Weekly Standard. The Times account could waste only one paragraph on such details.
That story was carefully worded, nonetheless. The opening sentence stated that the Indiana law “could make it easier” to refuse services to gay couples on religious grounds and later explained that the law “opens the door” to such refusals. It cited others warning that the law was an “invitation” to discrimination or “a threat of abetting” it.
Those are all possibilities, it seems to me, although not necessarily likelihoods. They are the kinds of possibilities that we confront in the case of all our rights. Freedom of speech and press “makes it easier” to destroy reputations, debase public discourse, deform democracy, and feed violent psychopaths online. Insistence on search warrants, reading people their rights, and a host of other criminal and court procedures can “open the door” to crimes going undetected or the guilty going unpunished. Social benefits of all sorts, from health and safety regulations to income assistance, are inevitably “invitations” to cheating, gaming the system, or otherwise “abetting” unfair conduct. (That’s what libertarians are forever lamenting.) We do our best to foresee and forestall the possible risks but not by denying the rights in the first place.
The Times followed up its new story with a more informative “news analysis” of the Indiana law under the more-than-modestly editorial headline, “Eroding Freedom In the Name Of Freedom.” Then an actual editorial summed up its argument with the headline, “Religion as a Cover for Bigotry.” (Constitutional scholars who defend the Indiana statute but also support same-sex marriage may be surprised to discover that they are unwitting bigots.) Again, the idea that there might be more at stake than bigotry proved beyond the imagination.
The whole point of freedom of religion is that it protects an extraordinary gamut of differing, frequently conflicting cosmologies, spiritual disciplines, and moral codes. They may include refusing to fight in defense of the nation, rejecting certain foodstuffs or medical treatments, discouraging young people from secondary or higher education, honoring celibacy or condemning a variety of sexual practices, sacrificing animals, drinking alcohol, or ingesting hallucinogens for ritual purposes, prescribing certain head coverings or hairstyles despite school or occupational rules, insisting on distinct roles for men and women, withdrawing from friends and family for lives of silence and seclusion, marching in prayer through neighborhoods on holy days, preaching on street corners or otherwise trying to convert others to these persuasions.
A great many of these beliefs and practices I disagree with. Some I deplore. Religious freedom means I live with the fundamentalists who describe the pope as anti-Christ and my kind as hell-bound—and with the black nationalist sects who consider me a white devil. Religious freedom means that I don’t have to send my children to the state schools if I choose not to nor does my Darwin-phobic neighbor. It also means state schools or state events or state laws should not force people to participate in religious rituals or practices contrary to their consciences.
Religious freedom means that I may very well want to question, critique, refute, moderate or otherwise alter religious beliefs and practices that I find irrational or unhealthy or dehumanizing or, yes, bigoted; but knowing how deeply rooted and sincerely held these convictions are, and how much about the universe remains in fact mysterious, and how much about my own perceptions of reality could in fact be mistaken, and how much religions do in fact evolve over time, I accommodate myself in the meantime to peaceful coexistence and thoughtful engagement. In particular I refuse to coerce religiously sincere people into personal actions that violate their conscience. And I refuse to dismiss their resistance to such coercion as nothing but bigotry.
Do I have to point out that there are limits to what can be tolerated on religious grounds? Protection of minors. Freedom from harassment or discrimination. Public health, safety, and order. All these and more come into play. It is one of the glories of the American legal system that so much thought and energy has been expended on drawing careful lines here, even if the results are never beyond revision. One expression of that effort was the principle that when a generally applicable law was claimed to create a substantial burden on someone’s religion, the government had to show that it had a compelling interest in doing so and was using the least burdensome means. That may sound forbidding, but in reality courts have almost always found upholding anti-discrimination laws—to take the front-burner issue at hand—to be a compelling government interest.
The Indiana law is one instantiation of that principle. So are the Religious Freedom Restoration Acts passed overwhelmingly by the federal government and nineteen other states. The Indiana RFRA may be a flawed version. Perhaps it should be revised, as state officials have said. I strongly favor dropping its inclusion of companies and corporations. Perhaps there are better means to the same end. That end is evidently broader than the current controversy over same-sex marriage. But insofar as that is the current triggering issue, Indiana’s RFRA could be complemented with a statewide statute barring discrimination on grounds of sexual orientation or gender.
Still, if the issue is whether rights of same-sex couples seeking to marry comes into conflict with the rights of people who claim that their religious freedom is being “substantially burdened” by personal involvement in same-sex marriage, then let the question be debated and the legislation framed with as much sensitivity to acknowledging, harmonizing, and balancing the rights on both sides rather than dismissing one set of concerns out of hand.
All my life liberals took the lead in defending and enlarging freedom of religion. Now they seem to have shrunk into silence, indifference, or, worse, disparagement. Contrary examples anyone?
