“Religious freedom” is officially out of style.
I saw this story posted a twice on my facebook feed, once from CNN and once from NPR. Here is NPR’s headline:
Indiana’s ‘Religious Freedom’ Bill Sparks Firestorm Of Controversy
The article begins:
When Indiana’s Republican Gov. Mike Pence signed a bill into law allowing the state’s businesses to refuse to serve same-sex couples based on religious grounds, he knew the move was a controversial one.
A wise friend requested to see the law’s controversial text. Perhaps anticipating the public’s interest in actually reading the laws that it passes, the State of Indiana has made the legislation available through its web site. After a lot of sundry definitions, the thrust of the legislation is:
Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.
b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
That’s it, everybody. That’s the “firestorm of controversy”. It’s another law that says no more than, and no less than, “The government will protect your freedom of religion, except for when it won’t.” That sounds kind of run-of-the-mill to me.
Notice what the law does not say. The law does not say “same-sex”. The law does not say “gay”. [EDITED. See update below.] The law does not say “discriminate”. The law does not say “wedding”. The law does not say “cake”. All the law seems to say, as far as I can tell is, “a governmental entity may not substantially burden a person’s exercise of religion (except for when it can).”
It looks to me like the Indiana legislature has basically re-mixed the First Amendment to the federal Constitution together with some scattered Supreme Court opinions interpreting it. Basically it’s like “The First Amendment (Indiana Remix)”. That’s really all the law is, and guess what: That’s hotly controversial here in 21st Century America. I mean, look what it’s done to poor John Green. Look how mortified he is:
I know, right? Tell me about it. A government exists to protect its citizens, except for when it doesn’t.
The effect of this law will be minimal. The federal Constitution already protects religious freedom, except for when it doesn’t. The only thing I see this law really changing is that it creates a state-law basis for adjudicating violations of religious freedom that might otherwise have gone straight to federal court. Perhaps there are some procedural benefits or burdens that the Indiana state courts would like to extend to or impose upon its citizens. Substantively, I don’t see any change.
[UPDATE 1: This gentleman explains the nuance much better than I did in under three minutes. The effect of the law will be simply to replicate the federal Religious Freedom Restoration Act at the Indiana state level:
See also this very insightful explanation from a law scholar writing for Indy.com.]
The more interesting development is that “religious freedom” has officially gone out of style. I kind of get it. I don’t know from experience, but I can empathize.
“Religious freedom” is all good fun until people start treating others poorly on account of religion. Then it’s no fun anymore.
If people treated me poorly every day of my life and cited “religious freedom” as their impetus, then I imagine I wouldn’t be so enthusiastic about “religious freedom” either. That’s why all these people are protesting. When they see the the words, “religious freedom”, they get defensive, regardless of allegedly benign intentions. Whether the protestors are entitled to everything they’re asking for is another matter, but perhaps you can understand why they’re less than pleased.
If you’ll spend five minutes to read and understand the law, you’ll see what all the fuss is about. The fuss is simply that people don’t like “religious freedom” anymore. They recognize it as bad news for them. Why should that be?
If you appreciate religious freedom, then I think the question is well worth considering: Why does “religious freedom” have such a poor reputation in 21st Century America, and what might be done to improve it? Next time the government promises to protect “religious freedom”, except for when it won’t, I would like see the proposal met with the traditional void of American apathy, rather than such an unbecoming maelstrom of controversy. Wouldn’t you?
[UPDATE 2: Firstly, I had originally listed above, among the things the law does not mention, that “The law does not say ‘businesses’.” This was in error. The law does mention corporations and other business forms under the definition of “people”. Obviously, though, businesses are no more than people working together in a productive enterprise. I personally don’t distinguish the actions of a “business” and the actions of the people who running a business. People do not cease to be people once they engage in a business enterprise.
Secondly, since reading this, I’ve come across several articles, some from learned people, who insist that the law provides business owners with a private defense against discrimination actions. I don’t think it does. I’ve written a separate post to explain my reasoning.]
