Since Easter may have turned some people’s minds to
chocolate religion, perhaps it’s worth taking just one more look at the vexed question of the right to discriminate on religious grounds, topical again in the United States with the religious freedom legislation passed last week in Indiana.
The initial version of the law met with a storm of controversy, leading Republican governor Mike Pence to support the addition of amendments to “clarify” it. The official conservative movement, however, including virtually all the likely candidates for the Republican presidential nomination, continues to endorse the law and the principle of protecting religiously-motivated bigotry.
It’s easy to imagine a law protecting freedom of association in general that incidentally provided protection to fundamentalists who didn’t want to serve gay people. Listening to some self-styled libertarians [link added], you might almost think that’s what the Indiana legislature had done. But it’s not: as with a similar measure last year in Arizona, licensing discrimination for religious reasons is central to the law, not incidental.
And conservatives in reality don’t defend the law by invoking freedom of association. They point to a different freedom, freedom of religion, and a 1993 federal law, the Religious Freedom Restoration Act, that already contains (they say) much the same provisions as the Indiana law. (In 1997 the Supreme Court held that the federal law did not apply to the states, creating a need for separate state legislation.)
The claim that the Indiana law doesn’t go much beyond federal law looks as if it might be a bit disingenuous. But rather than wading through the detail of the legal provisions, I want to set out why I think the 1993 law is such a bad precedent to rely on in the first place.
The Religious Freedom Restoration Act wasn’t about the denial of service to gays, or anyone else. Congress acted in response to the 1990 Supreme Court decision in Employment Division v. Smith, concerning the claim by two members of a Native American church in Oregon that their religion warranted their use of peyote, a banned hallucinogenic drug (they weren’t actually prosecuted for drug use, but they were denied unemployment benefits after losing their jobs for it).
Faced with this sort of a claim, there seem to be three possible responses.
1. Because the law against drug use treats everyone equally and isn’t directed specifically against religious observance, it’s not a violation of the right to free exercise of religion, so believers are out of luck.
2. Because the government has no compelling interest in prohibiting ceremonial drug use, to do so is an unreasonable infringement of religious freedom. So genuine religious belief is a good defence; secular potheads, however, are out of luck.
3. Because prohibiting drug use in this case would breach the free exercise of religion clause, the drug laws in general are invalid, because believers and non-believers have to be treated the same way.
The first response, which is basically what the Supreme Court said, certainly makes sense. But in a country as religious as the United States, treating believers with such disdain was not a politically attractive route. That, to my mind, pushes one towards the third response. If a law amounts to an unreasonable restriction on people’s ability to practice their religion, then it’s a bad law and should be overturned.
What can’t be justified, however, is the move to the second position: that the law should stay in place, and be enforced against everyone else, just not against religious believers. That means privileging religious reasons above all other reasons, which surely amounts to an establishment of religion – as prohibited by the First Amendment, the very thing that started all the trouble in the first place. But that, of course, is exactly what Congress did, seconded by many states, now including Indiana.
As other commentators have pointed out, the political context has changed a lot in the two decades since the near-unanimous passage of the Religious Freedom Restoration Act. No-one worries much now about ceremonial drug use by Native Americans, if indeed they ever did. Instead the outstanding landmark in the culture wars is the collapse of resistance to same-sex marriage, now legal across more than 70% of the country.
In place of a bipartisan if muddled effort to safeguard religious freedom, there’s now a last-ditch effort by conservatives to stake out a protected sphere for anti-gay bigotry. But as Indiana shows, even that is meeting stiff resistance.
Perhaps it will take another 20 years before freedom of association is allowed to take centre stage.