When Charles Barclay, Miley Cyrus, Hillary Clinton, and Apple all attack Indiana, you know something big is going down. Many liberals have condemned Indiana’s new religious liberty law as a thinly veiled attack on LGBT rights. Not so fast, says Boston University’s Stephen Prothero. He raises a key question for all of us interested in culture-war issues. Who gets to define what is and what isn’t a religious act?
Indiana’s new Religious Freedom Restoration Act has been reviled as a sneaky way to impose a kind of cultural segregation on gay couples. If a baker does not want to bake a cake for a gay wedding, for example, or if a photographer refuses to shoot the pictures, this law gives them some legal protection to do so.
With these intentions, it certainly seems like an intolerant stab at the rights and dignity of LGBT people.
Yet liberal scholar Stephen Prothero defends the law. He is a supporter of full equality and rights for LGBT citizens, but he thinks conservative religious types have every right to refuse service to religious ceremonies of which they disapprove. Not to refuse service in secular affairs, but to refuse service to religious ceremonies. As he puts it,
There is no excuse for refusing to serve a lesbian couple at a restaurant and to my knowledge no state RFRA has ever been used to justify such discrimination. But if we favor liberty for all Americans (and not just for those who agree with us), we should be wary of using the coercive powers of government to compel our fellow citizens to participate in rites that violate their religious beliefs. We would not force a Jewish baker to make sacramental bread for a Catholic Mass. Why would we force a fundamentalist baker to make a cake for a gay wedding?
Full disclosure: I’m a big fan of Professor Prothero’s work. I’m looking forward to his upcoming book, Why Liberals Win. In this op-ed, Prothero raises a key question that ranges far beyond the narrow issue of Indiana’s RFRA and discrimination against LGBT couples.
Namely, who decides when and if something is a religious act? If a lesbian couple gets married in a secular ceremony, is that a religious act? Or, to be specific, is it fair for a religious person to define such a ceremony as a religious act, even if the people involved don’t see it as one?
Here’s another real-world example: Is the teaching of evolution a religious act, even if the teacher does not see it as such? That is, if such teaching has religious meaning to a religious student, does that make it a religious act? Obviously, public-school teachers have no business committing religious acts in their classrooms. But what if they don’t think it is a religious act? Who decides?
These cumbersome distinctions matter. As Professor Prothero points out, no one wants to force a Jewish baker to do anything to affirm a Catholic ceremony. But traditionally, legally, and historically, it has been acceptable to force a Jewish baker to do things that are perceived as non-religious, such as following health codes or serving customers of all races.
Defining the boundaries of religious activity thus takes on enormous political heft. If your actions are religious to me, even if they do not feel religious to you, who gets to decide?
In the checkered history of America’s public schools, time and again these disputes have been resolved against the claims of religious minorities. As I argue in my upcoming evolution book with philosopher Harvey Siegel, in the nineteenth century Catholic activists were told by Protestant school leaders that their complaints lacked merit, since the Protestant Bible could never be objectionable. Similarly, in the early twentieth century, Native American students had their religions suppressed in government boarding schools, since their religious objections were not seen by school founders as legitimate. In light of this history, shouldn’t religious minority groups, including creationists, be allowed to define for themselves if certain topics count as religious?
So far, conservative religious folks have not had too much luck in arguing in favor of their rights to discriminate. Perhaps most famously, Bob Jones University lost its Supreme Court case against the Internal Revenue Service. BJU had had its racial segregation challenged. BJU insisted its stance was religious. BJU lost.
If Indiana’s law is intended to protect conservatives’ right to discriminate, will it go the way of racial segregation? Do conservatives have the right to define the nature of religion, even if other people disagree? Is it fair for conservatives (or anyone) to insist that something is a religious act, even if the people engaged in that act don’t think so?