Overheated

The Debate About Indiana's RFRA

The controversy over the conflict between religious liberty and the antidiscrimination rights of the LGBT community has grown more heated in the past year. The recent debate over Indiana’s new—and now newly revised—religious freedom law is just the most recent and prominent example. As the Supreme Court prepares to decide on the constitutionality of same-sex marriage, the questions have gotten more numerous, and the battles more fierce. We do not yet know if they are reaching a crescendo, or if the next culture war is just ramping up.

Nor do we know yet what all this means for the law of religious liberty itself. Religious liberty claims, like all constitutional or statutory rights claims, must always be balanced against competing interests, including the powerful state interest in civil rights enforcement. The current debate may conclude with the straightforward finding that equality rights do (or do not) trump claims for religious exemptions, in particular cases or as a general matter. It is possible, however, that something even bigger will happen. Much of the current debate concerns the idea of religious exemptions itself. It is possible that it will end with the public rejection of legal accommodations for religion altogether, in favor of the view that no generally applicable law should ever admit of judicial or legislative exemptions because of burdens on religious belief or practice.

That the debate is playing out so publicly and with such fervor is understandable, even commendable. It speaks to how far our society has come in a short time on the question of the equal dignity of gays and lesbians. For those who have long yearned for such recognition, questioning the quality of this debate may seem like mere carping—like caviling over the proper placement of commas in the Declaration of Independence.

But the quality of this discussion matters. Nothing, I think, will—or should—stop the basic recognition of gay rights, and the heat of the current debate in part reflects this inevitability. But the details are still in flux, especially regarding same-sex marriage, and the current debate will surely affect some of the particular details of our new social settlement. Moreover, this debate raises questions about our very capacity to engage in the kind of thoughtful, careful public discussion that serious issues like this demand.

By that standard, there is good reason to be dispirited. The public furor over Indiana’s religious freedom law, or “RFRA,” was long on heat and short on light. There is a difference between attempting to persuade by careful reasoning and simply trying to play on emotions or rely on rhetorical tropes. Public arguments needn’t observe the rules of the seminar room, of course. But it may be possible to offer a few tips to inoculate readers against some of the more questionable or manipulative arguments.

1) Don’t accept overheated descriptions of the substantive differences between the old federal RFRA and new RFRAs like Indiana’s too readily. The federal Religious Freedom Restoration Act of 1993, which provided for the possibility of religious exemptions from generally applicable laws, was passed by overwhelming majorities in Congress and signed by a liberal president. It was a response to a Supreme Court decision overturning a thirty-year legal regime of constitutionally mandated religious accommodation—a decision that a liberal commentator in the Harvard Law Review called “perhaps the most politically illiberal decision of the term.”

Critics of the Indiana statute argued that any comparison between the two laws was off-base, for two reasons. Indiana’s RFRA made clear that it applied to for-profit businesses, and it applied to private actions in which the government is not a party, such as the now-famous antidiscrimination suit against the New Mexico business that refused to photograph a same-sex commitment ceremony. Any suggestion that the controversy over Indiana’s law was overblown was wrong, they said. (The revised law makes clear, for better or worse, that the state RFRA is not a defense for service refusals involving sexual orientation and other categories.)

There are arguable distinctions between the two laws. But the distinction is not as great as one might assume. Last year’s Hobby Lobby decision held—quite reasonably—that the federal RFRA did reach for-profit businesses. And four different federal appeals courts have held that the federal RFRA can be raised as a defense in suits brought by private parties. Indiana’s law simply made explicit what many judges concluded was implicit in the federal RFRA. The Indiana RFRA is not radically different from the federal RFRA, and neither law is inherently outrageous.

2) Don’t make assumptions about the results of individual disputes. Much of the anger last week had to do with frequent arguments in the press and elsewhere that Indiana’s RFRA would lead to a “parade of horribles.” Indiana’s RFRA or other state RFRAs, the argument went, would permit widespread discrimination against the LGBT community—not just in narrow cases, such as a photographer who serves gays and lesbians generally but is reluctant to lend her artistic talents to a same-sex marriage ceremony, but discrimination against gays and lesbians as a class. Hence the popular phrase, “a license to discriminate.”

But RFRA laws do not grant an unrestrained license to exclude or discriminate. With the exception of some state bills, which were opposed even by champions of religious accommodation and which failed, most RFRAs (including Indiana’s) do not compel any result. What they do require is balancing. Judges must weigh sincere claims of a religious burden against the government’s assertion of a compelling interest in enforcing a law. The court decisions on these issues have, so far, gone against the religious claimants. Courts generally conclude that government enforcement of antidiscrimination laws and policies is a compelling interest. The balancing test would require the government to show that these laws were appropriately applied and did not run roughshod over sincere religious interests. But it would not guarantee any result.

Calling these laws a “license to discriminate” is seriously misleading. The truth is that religious accommodation laws are no more a license to discriminate than a driver’s license amounts to a right to commit vehicular manslaughter. People are entitled to different views about where and how to strike the balance. But it would be unfortunate if readers were so captivated, or shamed, by such phrases that they rejected the very idea of religious accommodation itself.

3) “Reactions” or “responses” to changing facts and laws aren’t inherently suspect. Another popular move is to treat one’s opponents’ motives as so suspect that they require opposing anything that side does. Same-sex marriage opponents’ warnings that their adversaries are moving stealthily toward the end of religious freedom, or of religion altogether, rely on this sort of argument. On the other side, opponents of new state RFRAs depict them as the work of bigots seeking a “sword” against same-sex marriage, or as covertly using religion to advance libertarian opposition to all antidiscrimination laws. The notion that some new legal argument or movement is “strategic,” or a “response” to facts on the ground, is treated as somehow disqualifying those arguments from being taken seriously at all.

This is an odd argument. If there is anything everyone can agree on, it’s that the times are a-changin’. Public opinion on LGBT rights and same-sex marriage has changed dramatically in the past decade. The legal regime surrounding it, including its effect on religious freedom, is still evolving. That individuals and groups are “reacting” to these changes is neither surprising nor inherently suspect. Both sides’ views are changing: sometimes softening, sometimes hardening, sometimes realizing that new facts present new threats to LGBT rights or to religious freedom, and thus demand new legal claims and political arguments. That is normal.

Some politicians have indeed pushed for new RFRAs to play to their political base. Some of those politicians, and some of their followers, may well be bigoted, interested not in narrow conscientious exemptions but in striking any blow they can against same-sex marriage. Hot political issues always attract opportunists and strategists. But not every RFRA supporter is an opportunist, and not all strategy is wrong. (Those with longer memories might recall that the decision to put same-sex marriage at the head of the LGBT litigation agenda was itself a strategic choice. That did not make it insincere.)

But I would also like to make a case for another way of understanding the current push for state RFRAs and the religious exemptions they bring. Some sincere religious individuals and groups have no interest in refusing service to gays and lesbians as a class. But they do believe that certain activities would require their personal participation in the public celebration of marriages to which they conscientiously object. It is this, and only this, that concerns them. If they now want state laws that limit such requirements, that should not be viewed as some cynical reactionary “move.” There would have been little point in pushing for such laws ten years ago, when the issue was barely on the radar screen. Moreover, they were assured that same-sex marriage would not alter others’ religious practices and thus should be none of their business. Now they are discovering that this is literally untrue. The scope of law itself—the definition of “public accommodations,” the reach of antidiscrimination law, the degree to which the government may conscript private employers into subsidizing contraceptive care rather than providing that care itself, as it should for any important public good like healthcare—has grown and, they fear, threatens whatever space existed for their consciences outside the walls of a church itself. Just as some LGBT supporters fear that RFRA supporters are actually hostile to gays and lesbians altogether, these religious individuals fear that some supporters of LGBT rights are actually hostile to religion in general. We may decide that equality concerns must trump such objections, on a case-by-case (I hope) or categorical basis. But there is no reason to scoff at these individuals, to paint them as reactionary, or to assume they are concealing dark motives. Whatever the motives of those politicians who are trying to win votes may be, there are surely sincere and even decent objectors in the ranks. Our public discussion ought to take them seriously.

More could be said. I personally favor the legal recognition of same-sex marriages, the expansion of LGBT antidiscrimination laws—and the passage of state religious freedom laws that would allow courts to consider, on a case-by-case basis, sincere claims for religious exemptions. I am unsure how far those exemptions should reach, but I think they should extend beyond wholly private actions in the basement of one’s own home or the nave of one’s church. Public accommodations laws and the interests they represent are important, but their scope should not be absolute. The regime I favor is a zero-sum game. It will not satisfy every side every time. But that is the nature of every conflict between liberty and equality. Anyone who paints things as if there is no conflict at all—by putting scare-quotes around “religious liberty,” for instance, as if to suggest that any claim that involves religious exemptions is not really a religious liberty claim—is not being honest.

Those who would draw the line differently aren’t bad or unreasonable. These issues are and should be the subject of good-faith discussion and argument—of genuine negotiation, in our culture and our legislatures. RFRAs should be a part of that discussion, not ruled out altogether. The discussion must involve equal respect, a serious effort to understand the perspectives of the other side without assuming their bad faith, and the possibility of less than total victory.

It is difficult for any one legal system to fully recognize both LGBT rights, broadly understood, and religious freedom—also broadly understood. No; it is impossible. It is important nevertheless that we try—and that, when the contest produces winners and losers, we are candid about it, rather than try to pretend that there was no real conflict to begin with because one side was wholly unreasonable. We should have high expectations about what our public discourse looks like, do our best to hold ourselves to those expectations, and treat with caution anyone whose arguments fall short. Contrary to the old saying, not all is fair in love or war. This is a culture war about love: the right to love one’s partner, and one’s God. The stakes are high. But even this war has rules.

Published in the May 1, 2015 issue: 

Paul Horwitz is a law professor and First Amendment expert at the University of Alabama

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