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Is this really freedom?                                                                                    

Posted at: Apr/24/2015 : Posted by: mel

Related Category: Society, Watching America,

Indiana’s governor, Mike Pence, and the state lawmakers who approved their own version of the Religious Freedom Restoration Act (RFRA) in April 2015 say that they are shocked, shocked, shocked at the uproar, divisiveness and potential economic pain that the new law is bringing to their state. I’d rather they would just be honest and acknowledge that in the great balancing act that is the American public sphere, they want religious freedom to trump civil rights.

Reading a law is not easy and I am not a lawyer, but research is critical to an intelligent analysis or arguement. Contrary to what its supporters say, a careful review of Indiana Senate Bill 101 shows that it is not just like the 1993 federal law of the same name that its supporters keep referring to. Nor is it just like the laws passed by 19 other states with similar branding.

Nor can Governor Pence’s assertions that the law is not meant to discriminate stand up to scrutiny. Of course, history has shown that law makers regularly support legislation that they have not read and do not really understand. Nevertheless, it is difficult at this point to know exactly what Pence believes, since he has flip-flopped or fudged his stance with nearly every public appearance. If it’s not meant to allow certain people or corporations the right to withhold services to other people with whom they faithfully disagree — that is, to “discriminate” with whom they do business — then why have the law at all?

Many publically devout Christians have found themselves at odds with this law. The fundamental Christian message has been one of unconditional love and tolerance for others, but this law and its movement are not about tolerance or acceptance. Companies that sell goods and services to the public are learning that support for discrimination, or even passive acceptance of discriminatory practices threatens their bottom line.

It’s worth reviewing why Congress passed and President Clinton signed the original RFRA in 1993. The federal law was written to protect religious minorities, allowing them to practice their faith as long as it did not interfere with a “compelling government interest.” The law was written in response to a case where a Native American in Oregon was fired for failing a drug test after ingesting peyote, a hallucinogenic drug used for a religious ritual. The first test of the law was a case involving a Muslim man in prison who was allowed to keep a short beard even if though it violated jailhouse rules. The 1993 federal RFRA emphasizes that acts of faith that caused no harm to other people would now be legally protected.

Since 1993, various state and local versions of the Religious Freedom Restoration Act have been morphed into tools for a Christian fundamentalist majority to shield themselves from the expanding rights of minorities and, in particular, those who are able to benefit from marriage equality. It is easy to appreciate that people with good intentions would want to break a law if they believe that to follow it would run afoul of their faith. Nevertheless, if doing so harms the public good by limiting another citizen’s access to basic right and services, then they need to accept the consequences. Demanding that government protect their defiance with a specialized law is not the right response.

Governor Pence’s protestations to the contrary, this new law is not just an Indiana version of the federal statute; it differs in two key ways. First, as Garrett Epps noted in The Atlantic, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA law doesn’t contain language extending religious rights to a business, and none of the state versions do, except South Carolina’s which is also under scrutiny.
Second, and of greater distinction is that the Indiana law includes language that essentially allows a business the right to defend itself against a private lawsuit by another person rather than only against legal actions brought by government. All the other state laws excluding Texas do not contain this unique provision.

In other words, assuming the current law takes effect in Indiana, businesses in the state could use it as a defense against civil rights suits brought by individuals.

Where small businesses are leaning in one direction; bigger businesses are clearly leaning in a different direction. With the legal possibility for open discrimination against same-sex couples, the threat of boycotts and other retaliation was swift from groups as diverse as the National Collegiate Athletic Association, the Indiana Pacers, Walmart, Eli Lilly, Apple and even the Marriott International hotel chain.

Marriott International was founded by J.W. Marriott, a dedicated Mormon, and is now run by his son Bill, also a Mormon who fully accepts his church's teachings about traditional marriage. Yet in June 2014, Marriott International initiated a "#Love Travels" marketing campaign, aimed at attracting lesbian, gay, bisexual and transgender travelers with an assurance of "the company's commitment to make everyone feel comfortable about who they are." When Bill Marriott was asked about the discrepancy between his religious rejection of same-sex marriage and his marketing overtures to same-sex honeymooners, Marriott pointed to the Bible's injunction of unconditional love, but added "beyond that, I am very careful about separating my personal faith and beliefs from how we run our business."

While intolerance has been growing in other regions of the world, the United States has prided itself in being a leader at cultural acceptance and tolerance. Moving from bigotry, to “Jim Crowe” laws, to the civil rights movement have not been easy steps; but each has moved towards the notion that being different is not wrong. Whether, gypsies, Jews, or other minorities; these groups were often forced to live and do business only within a confined community. If a public business is actually allowed to legally discriminate on who they provide services to, are we recreating or validating the notion of ghettos through commercial segregation?

The right to religious freedom and protections is not the same as civil rights. When Hobby Lobby appeared before the Supreme Court in 2014 they argued that it was the religious right of the owners to choose not to pay for certain employee medical benefits that conflicted with their beliefs. Since the employees were not restricted from purchasing these benefits independently the court agreed. The same owners did not ask that they be allowed to screen and choose who they did business with and who they did not.

Whereas more than two decades ago, a bipartisan coalition of liberal and conservative faith leaders forged the federal RFRA, now many of the state laws are being pushed by groups that have clear religiously conservative agendas and are worried about the swift legalization of same-sex marriage.

Critical to the Indiana situation is their concurrent lack of laws that prohibit discrimination in employment, housing, education and public accommodations on the basis of a person’s sexual orientation or gender identity. This would mean that a Gay couple being denied a service would not have an anti-discrimination law as a counter argument in court. In this scenario for Indiana, businesses could use the RFRA to trump civil rights or discrimination suits. Even before the controversial Indiana law was passed, if a restaurant in Indiana denied service to a gay couple, the couple might be able to sue, but not for discrimination.

As 2015 unfolds, we are clearly at a tipping point where gay and lesbian Americans are gaining full rights and protections of citizenship. Obviously, to LGBT activists, there are many more obstacles to overcome, but the pace of change and acceptance has been astonishing. Just as pointed is the objection to these changes from the religious right. As one person I spoke with said; “The bible calls it an abomination. Those are not my words, those are God’s words.” In the end, this is a debate between those who follow biblical admonitions and those who defend the protections offered by civil rights law.

As a nation we have faced this quandary before. Slavery was initially defended through its biblical origins. Polygamy was also defended initially. In 1879 a Mormon husband argued that it was his right and religious duty to be married to multiple wives and should be protected by the First Amendment. In an 1879 court decision, Chief Justice Morrison R. Waite wrote: “Can a man excuse his practices… because of his religious belief? To permit this would be to make the professed doctrines of religious beliefs superior to the law of the land.” If someone wanted to return to some ancient religious practice that included human sacrifice, where would the line be drawn?

As with any new law there are both unusual test cases and unintended consequences. One of the first test cases being hatched comes from Bill Levin. Mr. Levin is the founder of The First Church Of Cannabis and wants to argue in court that the law should protect his right to smoke pot. While not human sacrifice, this situation would pit religious freedom against local civil and criminal law.

Faith and beliefs, be it religion or atheism cannot and should not be imposed by force. The extreme implementation of this would be the behavior by some Muslim extremist with their “convert or die” philosophy. In America the founding fathers settled the question of what trumps what, religious conviction or civil rights, and they came down on the side of the civil rights. Those who cannot abide by these rules are free to find, or form another country based on the superiority of faith over civics.

For Indiana, the short term fix is to create a non-discrimination provision or law providing a defense against the abuse or excesses of their new Religious Freedom Restoration Act. This would at least mean we could test if Civil Rights still triumphs Religious Freedom in court. In the meantime, maybe it is better to let the “Bible Belt” secede than have these never ending culture wars.

Whether religiously based or not, Indiana needs to figure out if they are willing to legalize discrimination.

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