Free to discriminate, part 1

Politics World News

This is a two-part blog about the legal right to the free exercise of religion and discrimination, in that order. Prompted by the current fuss over Indiana’s Religious Freedom Restoration Act, part one will look at the situation in Indiana that sparked the current discussion, and part two will step back from the headlines and address the more principled philosophical question about liberty and the right to discriminate.

Lately social media has been abuzz over a law change in the American state of Indiana, the Religious Freedom Restoration Act (RFRA), which, some commentators are saying, is a licence for businesses to discriminate against gay people. Even former Secretary of State Hillary Clinton weighed in, tweeting: “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love. #LGBT” Ever the bastion of anti-conservative (would be) exposé, the Huffington Post ran the headline “Indiana Governor Signs Anti-Gay ‘Religious Freedom’ Bill At Private Ceremony.” See the quotation marks? This is not really about religious freedom, somebody thinks. It is about being anti-gay.

Anti-Gay? Discriminating against people because of who they love? Who would write a piece of legislation targeting gay individuals for discrimination? As it turns out, nobody – as you’ll see when you do the unthinkable and actually read the law that everyone is talking about (I know, what a radical thing to do). Unfortunately, the passing of this law is a missed opportunity for many to look seriously at the issue of liberty’s implications and whether or not they count against the propriety of protecting liberty in the first place, and instead an opportunity for almost competitive dishonesty.

The Bible does not say much about same-sex sexual relationships because the clear presupposition is that this is not what normal, appropriate sexual relationships look like, but every time the biblical writers even mention such behaviour it is to declare it inappropriate.

Before going further, though, I do want to voice my own disappointment at the way some American conservative Christians have commented on this. I became aware of the story firstly because somebody shared a story about it on social media – a story that portrayed the law as primarily being about refusing service to people because they are gay, and the person who shared it declared that this was a good thing and that all states should follow suit. I am a Christian, and I take seriously the biblical teaching on marriage. Marriage is the union of a man and a woman, meant to be for life. The Bible does not say much about same-sex sexual relationships because the clear presupposition is that this is not what normal, appropriate sexual relationships look like, but every time the biblical writers even mention such behaviour it is to declare it inappropriate. Revisionist attempts to say otherwise are indefensible.

If you won’t associate with someone, or won’t serve someone, or won’t love someone because of their sexual orientation, there is something wrong with you and you need to work at being more Christlike.

Can you hear a “but” coming? A hallmark of the Christian life is love. If you won’t associate with someone, or won’t serve someone, or won’t love someone because of their sexual orientation, there is something wrong with you and you need to work at being more Christlike. Now isn’t the place to go into all the reasons for saying this, but it’s true and I want to make it crystal clear that this is where I stand. I’m not sure what bothers me more: The liberals who condemn this law, alleging that it’s wrong because of discrimination against gays, or Christians who praise this law, alleging that it’s right because of discrimination against gays. You’re both wrong but in different ways.

OK, so, to the law. First let’s get the facts of the matter out of the way, because although they matter, the principle at stake is more important. Critics of this law, or at least the ones I have seen (which is only a few, but some of them are high-profile, see the Huffington post and Hillary Clinton) have made the issue of discriminating against gay, lesbian, bisexual or transgender people central, as though that is what this law is about. This is false. Here is the relevant text of the Indiana RFRA:

A governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.

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.

In short, it is a law about the extent to which the government may coerce people to act against their religious beliefs. As a rule (and as we would hope), the government can do no such thing. The exception made by this law is in cases where there is an overriding governmental interest at stake.

As John McCormack at the Weekly Standard pointed out, Indiana is hardly unique in legislating for this presumption of liberty. In fact, there is already federal law like this, signed by Bill Clinton in 1993 (has Hillary forgotten?). it passed unanimously in the house of representatives and easily won the approval of the Senate, with a vote of 97-3. The law effectively establishes that a person by default has the right to freely exercise their religious beliefs – as guaranteed by the US Constitution – and that the only time when the government may cause that person’s free exercise to be “substantially burdened” by law is when doing so furthers a “compelling governmental interest” and that law is the “least restrictive means of furthering that compelling governmental interest.”

Once people realise what an RFRA actually is, it’s hard to see how any decent person’s first response could be to condemn it.

On reflection this seems to be a requirement for any properly free society. Imagine for a moment the dark, dystopian scenario we would have if things were reversed: By default you are prohibited from exercising your religious beliefs and the burden is on you, should you wish to exercise your religious faith in good conscience, to justify doing so to the government’s satisfaction. Once people realise what an RFRA actually is, it’s hard to see how any decent person’s first response could be to condemn it.

The Federal RFRA is the same piece of legislation that prevents the government from forcing a business to pay for contraception if it would violate the religious convictions of the parties involved.

In principle, it is difficult to see why free exercise ought to be restricted to your actions when you are not in business, but these constitutional rights should evaporate once you and a couple of friends set up a business.

Not only is there already federal law protecting free religious exercise from government interference, but similar law also exists in a number of other states. Eighteen other states have laws like this based on the 1993 federal law, and thirteen other states have protections like the RFRA created via court decisions. Indiana has not done anything unique. While liberal activists were freaking out over Indiana, Arkansas went under the radar and passed its own religious liberty law. RFRA legislation applies to individual persons and to corporations. We know this because RFRA defences have been allowed in court decisions like Equal Employment Opportunity Commission v. The Catholic University of America (1996), Young v. Crystal Evangelical Free Church (1998) and Hankins v. Lyght (2006). In all of these cases, the appeal to free exercise on the grounds of RFRA legislation as successful. In Worldwide Church of God v. Philadelphia Church of God Inc (2000) an RFRA defence was allowed, but it failed because no substantial burden was demonstrated. So in fact RFRA protections do apply to legal entities more widely and not just individual persons. (Hat tip to Josh Blackman at the National Review for pointing this out). True, Churches are different from most corporations (although many of them are in fact corporations) because most corporations are for profit. But in principle, it is difficult to see why free exercise ought to be restricted to your actions when you are not in business, but these constitutional rights should evaporate once you and a couple of friends set up a business. Presumably you are not expected to lose freedom of speech when you become an entrepreneur, so why free exercise of religion?

It is worthy of note that the somewhat over-the-top condemnation of this law in Indiana takes the form of assertions about future possibilities: What people are saying might happen because of this law, a dark, scary picture of mass discrimination against… well, just gay people, apparently. What critics are not able to say, it seems, is that this sort of mass discrimination actually occurred when the same type of law was passed in multiple other states or enshrined in federal legislation. Why not? If laws like this are dangerous and promote inappropriate discrimination, why doesn’t someone simply document it? After all, there are numerous cases of such legislation to pick from. Where are some recent examples this discrimination that you’re telling us will happen? Why doesn’t Mrs Clinton, instead of just saying that businesses in Indiana are about to start discriminating against customers because of their sexual orientation, back up such alarming statements by showing that this is what happened when other states passed this sort of legislation? The answer is relatively simple: Because businesses in those other states have not stopped doing business with people for that sort of reason at all. Not only is the law not about sexual orientation in the first place, but there’s no evidence being used to back up the claim that the law would even affect people because of their sexual orientation – or at least no evidence that the critics seem to think is important enough to cite.

Important to note is the fact that, according to the RFRA , the government can, in principle, burden somebody’s free exercise of religion via law. It is not a blank check to do anything, let alone discriminate (indeed, the legislation does not single out discrimination as a special act of free exercise). Where there is a compelling government interest that, were it to be pursued, would burden a person’s free exercise of religion, they may so burden it, provided they do so in the least restrictive manner. Rather than beating up a dust storm about a perceived (but not real) threat of discriminating against gay people, this should be the focus of concern – or at least of careful watchfulness. Just what counts as a “compelling governmental interest” had better be kept a very, very rare thing if it is going to be treated as something that can trump first generation human rights.

Indiana Governor Mike Pence who signed this legislation offers some comments to those who have been troubled by outraged critics. It bears reading:

I want to make clear to Hoosiers and every American that despite what critics and many in the national media have asserted, the law is not a “license to discriminate,” either in Indiana or elsewhere. In fact, the Religious Freedom Restoration Act reflects federal law, as well as law in 30 states nationwide. Indiana’s legislation is about affording citizens full protection under Indiana law.

I abhor discrimination. I believe in the Golden Rule that you should “do unto others as you would have them do unto you.” If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore. As governor of Indiana, if I were presented a bill that legalized discrimination against any person or group, I would veto it. Indiana’s new law contains no reference to sexual orientation. It simply mirrors federal law that President Bill Clinton signed in 1993.

As Prof. Daniel O. Conkle of Indiana University’s Maurer School of Law, a supporter of gay rights, including same-sex marriage, wrote last week in the Indianapolis Star: “The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a ‘license to discriminate,’ and it should not be mischaracterized or dismissed on that basis.”

If you have any interest in the furore about Indiana, read Mr Pence’s article. I think he is wrong in at least one way. He doesn’t really abhor discrimination. He said so himself. If a restaurant did something he didn’t like, he would discriminate against that restaurant and eat elsewhere. But apart from that, what he says is worth a read.

Appeals to free exercise of religion sometimes fail in spite of RFRA legislation, showing that such legislation is not a free pass

Lastly on the facts concerning the law change in Indiana, nothing about this law change means that if a person discriminated against a person and used their religious convictions as a justification, they would win in any legal action. This is the way the law change is being portrayed – as a free pass to discriminate against a gay customer. But in addition to the law not being used that way when applied in other jurisdictions, the law does not offer any such guarantee. As noted earlier, the RFRA does not say that a person’s free exercise of religion may never be burdened. Instead, it may only be burdened where there is a compelling governmental interest. RFRA legislation does not mean that anyone who appeals to their religious convictions and free exercise will always win. Sometimes the court rules in favour of those claiming free exercise, But appeals to free exercise of religion sometimes fail, showing that RFRA legislation is not a free pass (see here or here, and hat tip to John McCormack’s article for those links).

This is a piece of law that expresses a basic feature of any adequately free society.

So much for the facts of the matter, which are beyond dispute. On their own, the facts tell us that the outrage against Indiana is unreasonable. This is a piece of law that expresses a basic feature of any adequately free society, a law that is already federal law and state law in many places, a law that does not allow for – and has not lead to – carte blanche discrimination. As for the type of case that everybody seems to be talking about, namely the refusal of service to somebody because he is gay (based, presumably, on a contorted misunderstanding of the refusal to provide services for a same-sex wedding), there is nothing about this legislation that obviously permits this. Suppose a gay man wants to buy a newspaper from me. It is difficult to see how there is any burden at all to my free religious exercise in my selling him a newspaper (if I am in the business of selling newspapers), and hence no way to invoke protection from being burdened by the state if it forbids such discrimination.

What interests me more than the facts on the ground in Indiana (after all, I am not even American) is the question of principle here. Should we have an unqualified legal right to choose who we do business with, even if that means we will discriminate? Actually the question contains a redundancy. To choose is to discriminate. The question, really, is just this: Should we have an unqualified legal right to choose who we do business with? I’ll look at this in a new blog post soon.

Glenn Peoples

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{ 14 comments… add one }
  • Erroll G. Treslan April 2, 2015, 1:59 am

    Thanks for posting this article Dr. Peoples.

    I think you have keyed in on the problem underlying this controversy. The real issue (which is being largely ignored) is whether sexual orientation should be a prohibited ground of discrimination. It is is many U.S. states and my Canadian province of Ontario.

    Here are the excerpts from the Ontario Human Rights Code:

    Services
    1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

    Accommodation
    2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

    So, in the Province of Ontario, it is just as illegal to refuse to provide services or accommodation to a person because of their sexual orientation as it would be if the reason for the refusal was because they were an amputee or Asian descent.

    As of right now, sexual orientation is not a prohibited ground of discrimination in Indiana. A person why refuses to serve a person on the basis of this characteristic because of religious reasons is in the same position as someone who refuses to serve them because they consider their behavior to be “just gross”. The issue, as I see it, is actually twofold: 1. Should sexual orientation be a prohibited ground of discrimination in Indiana; and 2. If the answer to #1 is yes, should people who voice a religious objection to homosexuality be granted a special exemption to discriminate?

  • Rebekah April 2, 2015, 3:06 am

    Aw, clarity is so very refreshing. I wish more people would seek to be refreshed by it. Thanks and looking forward to Part Two. God bless you.

  • Jojo Alva April 2, 2015, 7:14 am

    Thanks for sifting through all the BS and presenting us with a clear understanding of what the conversation *should* be about. Looking forward to part 2.

  • Glenn April 2, 2015, 8:32 am

    “The real issue (which is being largely ignored) is whether sexual orientation should be a prohibited ground of discrimination.”

    Erroll, that would be the issue if this law change, on the face of it, provided a licence to discrimination against a person because of sexual orientation. But since it doesn’t, I do not agree that this is the real issue. As I said, I think that such discrimination would be quite wrong (the governor who signed this legislation feels likewise), but the legislation is another matter.

    The real issue here is whether or not the free exercise of religious beliefs should be protected, whether or not a “compelling governmental interest” is an adequate reason to burden that free exercise, and what constitutes a compelling governmental interest in the first place. Those are the important things here – not a question about sexual orientation.

    As a side issue: I also think you have the “exception” the wrong way around. We already discriminate for many, many reasons. What you’re talking about is whether or not an exception should be made for sexual orientation (not about whether permission to discriminate on those grounds should be allowed as exceptional – it is the norm, not the exception). However interesting that may be, it is beyond the scope of this blog post.

  • Johnny April 2, 2015, 9:22 am

    “He does abhor discrimination. He said so himself. If a restaurant did something he didn’t like, he would discriminate against that restaurant and eat elsewhere. But apart from that, what he says is worth a read.”

    I think you meant to say he DOESN’T abhor discrimination.

  • Glenn April 2, 2015, 10:21 am

    Correct, Johnny. I corrected it before your comment appeared, which is a bit strange. :/

  • James Gray April 2, 2015, 3:00 pm

    I think when proponents of this legislation are accused of trying to justify “discrimination”, the accusers are using the term “discrimination” to mean something like “the unjust/unfair treatment of people based on a certain criteria,” which I do think is accurate. Overall, I think if a large portion of Americans (in combination with a strong and rich support of certain activists) feel that there’s a legal justification for prohibiting all selectivity in the workplace based on sexual-orientation – then we Christians may have to simply accept that our views won’t be tolerated to the degree that we might end up being penalized, fined, etc. I’m not sure we can persuade people purely on the basis of some sort of secularized jurisprudence to allow this sort of selectivity in some instances. We should face the reality that Western culture is becoming increasingly secular, but we should not let that reality discourage us and stop us from performing our duties as Christians to be witnesses and ambassadors of Christ even if a majority treats our views with contempt.

  • James Gray April 2, 2015, 3:06 pm

    Just to clarify, I mean that I agree with that definition of “discrimination”. I’m not in agreement with its application to conscientious objectors, such as Baronelle Stutzman, for example – since I don’t think what she did was unjust/unfair based on my religious convictions.

  • James Gray April 3, 2015, 2:07 am

    Also, I guess “conscientious objector” was a poor term to use since it really applies to someone opposed to serving in the armed forces based on their conscience. Maybe I should have used, “someone who opposes something on the basis of a religious conviction”.

  • Vince O'Connor April 4, 2015, 6:50 am

    I’d like to note that the Indiana RFRA is substantially different from the Federal RFRA and similar laws in other states in one significant way. The law, SB 101, also includes “corporations” in the list of entities that can sue. In Section 9 of the law, it states that “a person,” in this case meaning an individual, church, limited liability company , etc. (as defined in Section 7), “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.” In other words, while the federal law states that a person can sue the government for a grievance, Indiana makes a point of stating that it doesn’t matter if government is involved. Of the current state RFRA laws, only those in South Carolina and Texas has similar language, but neither state appears to go as far as Indiana. This means that Indiana’s law applies to private disputes between people, or between people and businesses, not just governmental action.

    The context in which the bill was written is also different than the context in which the Federal law was written. In 1989, the U.S. Supreme Court in “Employment Division v. Smith” ruled against two Native American drug-rehab counselors who had taken peyote as part of their religious ceremonies as members of the Native American Church, were fired for doing so, then denied unemployment benefits because their dismissal was considered work-related “misconduct.” The Court upheld allowing the enforcement of general laws as they applied to religious individuals or groups, even when the result is to impose a burden on the practice of their faith. The Religious Freedom Restoration Act of 1993 was written in response to this ruling, and a unanimous House and a nearly unanimous Senate passed the measure, which was then signed by President Clinton. The intent of the law was to protect the exercise of minority religions.

  • Glenn April 4, 2015, 12:33 pm

    “I’d like to note that the Indiana RFRA is substantially different from the Federal RFRA and similar laws in other states in one significant way. The law, SB 101, also includes “corporations” in the list of entities that can sue.”

    Vince, what do you make of the part of this blog entry where I discuss precisely that?

    “The intent of the law was to protect the exercise of minority religions.”

    The law protects precisely the free exercise of religion that is set out in the constitution. Minority religions are not the only ones to whom this applies. And even if the existence of minority religions is what prompted this law, it must be applied with equal force to all religions.

  • David Hillary April 6, 2015, 12:26 am

    On this topic I suggest you should cover the question of whether discrimination based on guilt and evidence of guilt is allowable under the law of Christ, specifically in respect to protecting the accused from punishment / evil / coercion. That is to say, does Jesus prohibit punishment / evil / coercion as an allowable response to guilt and evidence of guilt, by way of a legal process that discriminates between the guilty and the innocent?

    The legal process, conventionally, purports to discriminate between the guilty and the innocent (and those whose guilt is not established with sufficient confidence), permitting evil to be visited on the guilty, and shielding the innocent (and those whose guilt is not established with sufficient confidence) from such evil. Principal text to review being Mat 5:38-48 — this text appears to, in the context of legal process responding to claims of wrongdoing, prohibit punishments and discrimination.

  • Cody May 22, 2015, 1:40 pm

    Are you still planning on doing a “part 2”?

  • Glenn May 22, 2015, 2:47 pm

    I’m planning many things. 🙂 But yes, I am planning a part 2.

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