Even as an atheist, I strongly support the preservation of religious freedom from most kinds of state intrusion.
You should be able to wear your religious head covering of choice, even in driver’s license photos. Prisons should provide kosher or halal meals and allow prisoners to keep their beards. Native American tribes that use peyote in their traditional religious ceremonies should be exempted from the laws against that substance. Thankfully, this norm is generally and increasingly used to settle these questions.
One major problem with the Indiana Religious Freedom Restoration Act, however, is that it also includes disputes that are exclusively between private parties. Section 9 reads, in part:
A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.
This means that it will not only give heft to plaintiffs who seek to overturn state actions that substantially burden religion. It will also apply to civil actions between private citizens — including companies — giving a potential fig leaf defense to obviously noxious and discriminatory behavior.
The cliche example floating around is the bakeshop being forced to make a wedding cake for gay couples despite religious objections to the wedding itself. There are far, far more substantial issues in play than dessert, but even if we keep it at the level of the admittedly less-than-life-or-death, it’s easy to see the problems here.
Imagine a Christian bakeshop that refused to bake a cake for a Jewish or Muslim wedding. Imagine that’s it’s someone who sincerely objects to interracial marriage, on religious grounds — and yes, while this was far more common half a century ago, I’m sorry to report that these people still exist.
While racial animus is less accepted today, it’s still sincerely held by many and religiously grounded for some. Just because that’s passé and anti-gay sentiment is still held by a substantial portion of the population, is the legal and moral question any different? Is the discriminatory potential — and, let’s be frank, intention — clear yet?
Imagine bakeries with “No Interracial Couples” signs in their windows, or even an implicit policy to that effect. Offended yet? Even though this might be motivated by sincere religious belief? Would you object to a law that tells the victims of such discrimination that state courts are likely closed to them?1)The obvious intent and far more likely outcome of this law is to gut local ordinances that provide LGBTQ protections. Yet it would at least re-open the question of racial and religious discrimination in the context of any applicable state laws. Religiously-motivated racial, ethnic, religious, and gender discrimination might be permitted by state law, at least in some contexts, and we wouldn’t know until the courts sorted it out. In less life-or-death contexts, such as refusing to bake a cake for a Jewish wedding, some judges might find the state interest to be insufficiently compelling. Do you want to tell that couple, “It’s federal court or bust.”? I sure don’t. My broader point, however, is obviously that this provides an analogy, bringing the battles of the mid-20th Century to bear on today’s civil rights battle. Good, that means you’re a decent human being.
Now, let’s get out of the bakeshop, because this will likely grant a hall pass for discrimination in far more serious contexts.
There is no federal protection for LGBTQ folks and no statewide protection in Indiana. Even in the towns where there are protections, however, this bill essentially guts those — a transparent intent behind the bill.
Thus, imagine hoteliers turning away LGBTQ couples. In the context of racial discrimination, this was decided 51 years ago, but it’s now an open question in Indiana.
Imagine realtors refusing to work with people whose lifestyles they find morally objectionable. Imagine bankers turning down loan applicants and even would-be account holders. Imagine teachers refusing to meet with parents in same-sex relationships.
All of these might now be legally sanctioned as long as they are motivated by religious (rather than secular) animus.
These acts of discrimination need not even be grounded in religious tenets that are central to one’s faith. The act clarifies:
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.
Talk about a free pass. Any exercise of religion counts, even if it’s as transparently silly as a Pastafarian head covering — but, you know, used for discriminatory rather than parodic effect.
This means that, except where state or federal law provides otherwise, even the thinnest veneer of religious objection will excuse wanton, explicit discrimination. It also means that these religious fig leaves will also force a plaintiff and/or the state to re-establish how compelling the state interest is in all the laws that ban discrimination.
No wonder thirty legal scholars signed a letter opposing the bill (pdf). They warn that the law will
likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting, in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.
In other words, this bill will wreak havoc on the legal order in the state of Indiana, and the stakes are heck of a lot bigger than wedding cakes.
The only good news about this bill is the backlash it has engendered. Indiana is getting pushback from athletes, celebrities, and CEOs — but also sports organizations like the Pacers, the NCAA, and even NASCAR. NASCAR!
Despite this backlash, however, the Arkansas legislature has just put a very similar bill on the desk of Governor Asa Hutchinson. We will soon know whether the pull of the reactionary right outweighs the voices for equity, to say nothing of the rapidly growing chorus of opponents in the business world.
Arkansas-based Walmart — which may make more money from both homophobes and from LGBTQ people than any other company in the country — has weighed in against that state’s bill. If it passes, though, I wonder if they’ll try to find a way to argue that their religion forbids collective bargaining.
Footnotes [ + ]
|1.||↑||The obvious intent and far more likely outcome of this law is to gut local ordinances that provide LGBTQ protections. Yet it would at least re-open the question of racial and religious discrimination in the context of any applicable state laws. Religiously-motivated racial, ethnic, religious, and gender discrimination might be permitted by state law, at least in some contexts, and we wouldn’t know until the courts sorted it out. In less life-or-death contexts, such as refusing to bake a cake for a Jewish wedding, some judges might find the state interest to be insufficiently compelling. Do you want to tell that couple, “It’s federal court or bust.”? I sure don’t. My broader point, however, is obviously that this provides an analogy, bringing the battles of the mid-20th Century to bear on today’s civil rights battle.|