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?
Defending liberty? Or spreading hate?
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?
I Love You but You're Going to Hell 
galacticexplorer
/ March 31, 2015I do agree with this in the sense that deciding what is a “religious act” is an important question when framing this debate. However, I think Prothero oversteps a little when he states that an RFRA has never, to his knowledge, been used to defend throwing a lesbian couple out of a restaurant. This may be true, strictly speaking, but he has to recall that most states don’t actually have any legal protection from discrimination for LGBT people. Thus, an RFRA reinforces the discriminatory status-quo. Surveys have shown that LGBT people report discrimination in services, in housing, in lodging, even in medical care, including emergency care. But almost none of these reported incidents end up in the courts. This is not surprising because an LGBT person in most states has little legal recourse to challenge discrimination.
So yes, strictly speaking, the RFRA in Indiana may not be needed to legally defend discrimination in courts, but largely because such discrimination is already legal and thus would not likely be challenged in court in the first place. The RFRA simply reinforces that, and prevents local municipalities from enacting laws that might provide some legal empowerment to LGBT people.
Agellius
/ March 31, 2015The problem a Christian has with participating in a gay wedding is not that it’s religious, but that it constitutes participation in sin.
If a wedding were nothing more than a civil contract between two people to be faithful to one another, live together, share property, inherit from one another should one of them die, etc., then there could be nothing inherently wrong in it. But marriage is most commonly understood to involve, if not procreation, then at least sexual relations as an essential component. Otherwise “being faithful” has no meaning, since that term is understood to mean not having sex with anyone besides your spouse.
If marriage involves sexual relations essentially, then a traditional, orthodox Christian cannot endorse a wedding between two persons of the same sex, and would have a problem of conscience when it comes to participating in such a wedding, just as he would have a problem participating in the wedding of, for example, a polygamist.
Adam Laats
/ March 31, 2015Ah, that is interesting. Participation in gay marriage means, for some, endorsing a sinful sexual relationship, not participation in an impermissable religious ceremony. The problem is not that a gay marriage is a religious ceremony, but rather that it implies behavior that is unacceptable to the religious person. Isn’t the point (roughly) the same, though? Shouldn’t a religious person have the right to decide if behavior is sinful or not? That is, the state or a neighbor should not be able to tell anyone that it is not sinful to drive around on a Saturday, or to eat pork, or beef, or whatever. The fact that any particular behavior does not seem to have religious meaning for some people does not mean that it has no religious meaning for anyone.
Agellius
/ March 31, 2015In my view, there is no reason that an RFRA law would need to allow businesses to refuse to serve gays in situations that don’t involve moral issues, e.g. in restaurants, hotels or housing. As a Christian I would not oppose those kinds of exceptions, as long as the law preserves the right to abstain from participating in something that I believe is a sin. Because for a Christian, a sin is something you simply CANNOT do, even if you have to die to avoid it, which is why many early Christians were martyred rather than, for example, burn incense on a pagan altar. It’s unjust to sanction people for refusing to do something which is absolutely forbidden by their consciences.
galacticexplorer
/ March 31, 2015“…as long as the law preserves the right to abstain from participating in something that I believe is a sin”
But that’s exactly the problem. You want full latitude to decide what constitutes a moral issue, but different people have different moral issues. Some people will decide that renting or providing housing to a gay couple is a moral issue because “they might have immoral sex on my property.” Some people will decide that providing healthcare to a HIV positive gay person is a moral issue because they need to live with the “consequences of their sin” or some such thing. These things happen. Different people will all decide on different levels of discrimination which they consider “moral”. The problem is, you believe that something I am doing in my private life (that has utterly nothing to do with you) is a sin, yet you expect me to deal with the resulting discrimination and harm in order to coddle your personal opinions on my private life. If you think other people’s moral opinions on my private life are more important that my right to be treated as an equal, then why not allow people to discriminate in housing, service, and healthcare? Why draw an arbitrary line at what you consider a “moral issue” while rejecting what I or others consider a moral issue?
For what it’s worth, I do not think that people should be compelled to produce something that explicitly states support for anything that they might disagree with. I feel this falls under freedom of the press. Thus, if a cake-baker does not want to write “gay is good” or “Hitler was right” or whatever other thing they might disagree with on a cake, they should be free not to. Photography may fall into this category as well, although I’d leave it more to practitioners of law to untangle that one. However, stated support is different from simply allowing a person to buy a product or obtain a service that you already supply to other people simply on the basis of their sexuality. Thus, the baker could refuse to write pro-gay messages on the cake, but they should not be free to refuse to sell a cake to a gay person, just like an apartment manager should not be free to turn away a gay couple and a doctor should not be free to tell a gay person to go elsewhere for treatment.
Agellius
/ March 31, 2015GE:
Conscience is a basic human right. I mean, basic, even more so than free speech rights. I’m not going to give an inch on that, and neither will millions of other people. I hope you understand that.
On the other hand, wedding cakes and photos are not basic human rights, but rather, First World luxuries. When an optional luxury conflicts with a basic right, the basic right wins.
If you feel the need to roll over my conscience rights with a bulldozer, can you at least restrict your bulldozing to things that are really important, like healthcare and housing? Why does it have to be all or nothing?
In any case, your fallacy is arguing as though the RFRA guarantees that anyone with the most dubious and tenuous moral objection will automatically win in every case. It does no such thing. As quoted previously, “The [RFRA] doesn’t mandate any particular outcome; it simply provides a test for the courts in those rare instances when a person’s exercise of religion clashes with a law.”
The test provided is that someone’s exercise of religion may only burdened by the government when (1) it is in furtherance of a compelling governmental interest; and (2) it is the least restrictive means of furthering that compelling governmental interest.
I may be crazy, but I doubt that the courts are going to have any problem concluding that ensuring access to housing or healthcare to gays and lesbians is a compelling government interest.
However, I admit it’s more doubtful that ensuring easy access to wedding cakes and photos would be construed as a compelling government interest, so we may be in for some First World Hardship there.
galacticexplorer
/ March 31, 2015I guess you are crazy, because the government is already perfectly fine with allowing discrimination against gays and lesbians in matters of housing and healthcare. Most states have no law to protect us from any form of discrimination… the RFRA just reinforces that status quo, particularly if individual municipalities attempt to make some form of civil rights progress that you so desperately want to prevent. I hope you enjoy not fearing for your job and not fearing being evicted from your home if people find out who you’re married to because not all of us have that luxury, thanks to people like you!
Also, don’t say “we” are in for some First World hardship. You’re not the one having to limit your options for school and work for simply existing. You are free to have your conscience… just you and your hyper-religious ilk insist that your “conscience” implies you get to discriminate against me. What I do in my free time is none of yours or anyone else’s business. If I ask for the same service that everyone else receives, I should not be turned away.
Also, I am aware that millions of people are bigoted and won’t budge an inch. Trust me, I know. That’s the reality I live with and have to fear every single day. That’s why my family refuses to speak to me after I “strayed from the path”. That’s why I’ve been told by employers “people like you need not apply.” That’s why I’ve had to wonder if it’s safe to announce my wedding to my co-worker friends, even as they happily chatted about their husbands and wives without fear, or if I’ll be out of a job. That’s why it took so much time for my (now) wife to even feel safe holding my hand in public. I miss the days when none of that was an issue and I lived in happy, Christian luxury like you do where I didn’t have to deal with any of this because Christians, unlike gays and lesbians, actually get protection in this country.
But millions of people are also changing their minds about this and leaving you and people like you in the past. Enjoy your discrimination privileges while they last because it won’t be forever.
And to Laats, sorry for going off on a rage on your blog. I’ll bow out now before this turns uglier.
Agellius
/ April 1, 2015GE:
You write, “I hope you enjoy not fearing for your job and not fearing being evicted from your home if people find out who you’re married to because not all of us have that luxury, thanks to people like you!”
No, I only have to fear for my job if people find out what I think of gay marriage. (Why do you think I blog anonymously?)
Look, I already said that “In my view, there is no reason that an RFRA law would need to allow businesses to refuse to serve gays in situations that don’t involve moral issues, e.g. in restaurants, hotels or housing.” So I’m not sure on what grounds you include me in people who favor denying access to housing and healthcare for gays and lesbians. I get the feeling that you’re really just mad at me for not agreeing with you in every particular.
“Most states have no law to protect us from any form of discrimination… the RFRA just reinforces that status quo…”
Have you read the actual law? I assure you that it says what I said it says. Or do you think that the government should be allowed to violate individual conscience rights WITHOUT a compelling government interest? You might want to think about what that would mean if the shoe were on the other foot.
“What I do in my free time is none of yours or anyone else’s business.”
Except of course when I’m asked to participate in it, right?
“And to Laats, sorry for going off on a rage on your blog. I’ll bow out now before this turns uglier.”
Can you be truly sorry in advance for something that you go ahead and do anyway? ; )
Agellius
/ March 31, 2015“The problem is not that a gay marriage is a religious ceremony, but rather that it implies behavior that is unacceptable to the religious person.”
Not that it’s “unnacceptable to the religious person” (which makes it sound like a personal prejudice), but that it’s wrong according to his religion, which in most cases he believes has been revealed by God. It’s wrong to participate in something that is wrong. It’s not only wrong to steal, it’s also wrong to help someone steal, or to make money from theft even if you’re not the one doing the stealing.
I agree that the principle is roughly the same, that it’s not for you to decide what my conscience, informed by my religion, forbids or should forbid. Nevertheless, as in the case of conscientious objection to war, there may be dubious cases where someone claims his religion forbids something when it really doesn’t, or adopts a belief on an ad hoc basis to excuse himself from complying with some requirement. I would not necessarily object to the court adjudicating the legitimacy of such claims on an individual basis. As Rich Lowry writes today, “The law doesn’t mandate any particular outcome; it simply provides a test for the courts in those rare instances when a person’s exercise of religion clashes with a law.” (http://www.nationalreview.com/article/416196/defense-indiana-rich-lowry )
Opposition to the Indiana law, however, does seem to have an ad hoc basis rather than one of principle. As Lowry also writes today, “The religious-freedom laws once were associated with minorities that progressives could embrace or tolerate — Native Americans who smoke peyote as part of religious ceremonies, Amish who drive their buggies on the roads, and the like. That was fine. It is the specter of Christian small-business people — say, a baker or a florist — using the laws to protect themselves from punishment for opting out of gay-wedding ceremonies that drives progressives mad.” Such laws at one time were uncontroversial, as evidence by the fact that the federal RFRA passed almost unanimously. It’s only now that gay marriage is the cause celebre that it suddenly becomes a horrible idea.