Indiana’s RFRA Act .... what is the real issue?
It should come as no surprise to us of the present age that religion
plays a key role in political life. Recently the State of Indiana enacted its
Religious Freedom Restoration Act that parallels Federal legislation and
statutes of many other states of the Union.
Unfortunately, some
American citizens or interests are keen on exposing the so-called
discrimination or potential discrimination that this kind of legislation may
perpetrate against fellow citizens who are part of the sexual orientation and
gender identity movement.
Powerful influences including elements of the media, the
NCAA, and large corporations that publicly support the political, social, and
cultural initiatives of this movement have been adding their objections to this
new legislation which reflects what has been the law for some time in other
jurisdictions. Could it be that there is something in the text of the Indiana law that
is different? I do not think that is the real issue. The real issue resides in
the text itself and what the text is supposed to protect, which I shall address
in a moment.
The opponents of the new Indiana law are now pressuring the
legislators and the governor, who supports the legislation, for clarifications.
But
are clarifications needed? This is where a careful examination and
interpretation of the text are in order. After all, words and their meanings
are important to the law as are the entire texts. In my discussion today, I am
relying on Indiana Senate Bill No. 568 introduced on January 20 of this year
and enacted this past week. The text is HERE: Download
SB0568.01.INTR.
The substance of the legislation is contained in Section 6 that
provides that state action or the action of an individual based on state
action cannot “substantially burden a person’s right to the exercise of
religion, even if the burden results from a law or policy of general
applicability.” The same section further provides that a burden to the
right of religious free exercise may be lawful and trump the right of religious
freedom
if the burden is “essential to further a compelling governmental interest” and
is “the least restrictive means of furthering the compelling governmental
interest.” This language essentially tracks Supreme Court jurisprudence, albeit
at times confusing, on the nature of religious liberty.
The first five sections of the legislation contain the definitions
applicable to the intent and purpose of the new law. I find two of the
definitions crucial to meeting the general opposition to the state RFRA that
opponents of the bill are voicing. Section 3 defines the phrase “the exercise
of religion.” The definition can be fairly distilled as the practice or
observance of a person’s [defined in Section 4] ability to act or to refuse to
act in a manner that is substantially motivated by the person’s sincerely held
religious belief. Inherent in this protected right is the defense of
the person who is acting or refusing to act on the grounds of that person’s
religion. This protected right does not impose on the non-believer or someone who
adheres to some other faith. It protects the claimant who is exercising
a Constitutional and now an Indiana statutory right. It does not interfere with the
legal rights of others who may disagree with the religious tenets in issue.
To understand this point further, it is useful to look at the
second important definition to which I alluded a moment ago, and this
definition concerns the “compelling governmental interest” that can derogate the
protected right of religious freedom under specified circumstances. A
“compelling governmental interest” is defined as “a governmental interest of the highest magnitude that cannot otherwise be achieved without
burdening the exercise of religion.” I have emphasized two passages with
italics.
While the first italicized phrase might profit from a definition, I do
not think that a definition essential to the protection of all legitimate
interests at stake. The phrase “the highest magnitude” suggests a crucial
legal, perhaps even constitutional, principle that is essential to the
integrity and survival of the Republic, the State of Indiana, and the
commonweal/common good.
Opponents to the
legislation appear to ignore this element of the text when they argue that the
Indiana law “could make it easier for religious conservatives [the legislation
does not use the term “conservative” anywhere] to refuse service to gay
couples.” What might these services be? The denial of some services to
anyone might actually be a lawful act of discrimination rather than an unlawful
act of discrimination.
For example, an innkeeper might discriminate against a
would-be customer if the innkeeper refuses to serve alcohol to someone who is
already intoxicated or underage. This refusal could be compelled not only by
law but also by a person’s sincerely held religious belief that the intoxicated
or underage person should not be served. Might the proprietor of a bed
and breakfast refuse to accommodate a single person? Unless the single person
is rowdy, a known fugitive from justice, travelling with an animal, etc., it
would be difficult for the proprietor to refuse accommodation on the grounds of
religious freedom as the law is designed to protect. But what if it is a couple
of persons? Does it matter if they are of the same-sex or opposite-sex? Could
the proprietor rely on the provisions of this law to deny accommodation to
either couple and not trigger the compelling governmental interest standard of
the highest magnitude? It would seem that the right of religious freedom (or
conscience which is not directly addressed by the statute’s language) as
enshrined by the law would protect the proprietor who knows that the
opposite-sex-couple is not married. Why should the same-sex-couple be treated
differently by forcing the proprietor to provide them with a room with a large
bed? (Perhaps the circumstances would be different if this couple were Queequeg
and Ismael from Melville’s Moby Dick, but I digress.) Is
there a compelling governmental interest of the highest magnitude that is at
stake? Would it matter if the proprietor of the business relying on the
religious liberty protection operates a bakery and objects to an opposite-sex-couple
who want a cake to celebrate their living together out of wedlock or a same-sex-couple
who order a cake to celebrate their commitment or union under state law?
The point here is
this: must a person seeking the protection of this law conform his, her, or
its religious conscience and thereby sacrifice his, her, or its religious faith
to the sin of someone who desires to have his, her, or its action declared a
compelling governmental interest of the highest magnitude that cannot otherwise
be achieved without burdening the religious person’s free exercise? It strikes
me that, given the context of those objecting to this law, this is precisely
the objective that they are seeking. They are pursuing the goal because they see
no sin or sin is inconsequential; it is irrelevant to them that they are asking
another person to cooperate and participate in their sin. This
circumstance parallels what medical providers are now facing from their
licensing authorities when they are forced to refer a patient to a medical
provider who will provide the service they cannot provide due to their
sincerely held religious belief or conscience.
As I keep going over the text of the new Indiana law and
consider the objections raised by its opponents, I see strong parallels to what
Henry VIII did in England from 1533-35. Both the king and the opponents of the Indiana law
will not tolerate anyone who disagrees with their objective from escaping.
All must conform to the goals of the law’s opponents, and sincerely
held religious beliefs will be no defense. We know what happened during
and after 1535 in England. Is this same thing really required under the rubric
of a compelling governmental interest of the highest magnitude today? If so, then sin wins once again and
virtue is at forfeit.
No comments:
Post a Comment