Archive for March, 2015

What a difference twenty years makes.

In 1990 the Supreme Court of the United States overturned its earlier rulings — most notably Sherbert v. Verner [1] and Wisconsin v. Yoder [2] — which stated that the government could not, even by enforcement of “neutral laws of general applicability,” substantially burden a person’s practice of religion, unless such a burden were necessary to protect a compelling state interest. The Court’s abandonment of the Sherbert-Yoder doctrine generated such general outrage that an overwhelming bipartisan majority, led by then-Rep. Chuck Schumer (D-NY), introduced and passed the Religious Freedom Restoration Act (RFRA). The law, which is the Sherbert-Yoder test in statutory form, passed by a unanimous vote of the House of Representatives, and a 97-3 vote of the Senate. President Clinton signed it in 1993.

Since then many states have adopted their own versions of RFRA, pretty much all of which adopt the same Sherbert-Yoder test. Recently, Indiana followed suit. But the reaction has been far from the general acclaim that greeted the original RFRA’s passage. Nor has it involved shrugs or mild disapproval. Quite the contrary: major news organizations, sports organizations, a substantial number of large businesses, and even entire cities have signed on to “boycott Indiana.” Apparently all Indianans must suffer for their legislators’ willingness to pass legislation that protects a broad range of religious beliefs and practices, and targets no one for discrimination.

You read that last bit correctly: targets no one for discrimination. You will search the Indiana law for such words as “homosexual,” “sexual orientation,” “same-sex weddings,” or “same-sex marriage” in vain.

“Ah,” say the boycotters, “but the timing suggests the discriminatory intent.”

To which the proper reply is: The text of the enacted law is plain and unambiguous. The enacted text is all that binds a court. And the Sherbert-Yoder test embedded in the law has a long history of application by both federal and state courts, in cases that have nothing to do with gay marriage. The same test may be used — and has been used — to protect Orthodox Jews and Seventh-Day Adventists from employment discrimination flowing from their refusal to work Saturdays, to protect Muslims from being compelled to shave their beards, and to protect the right of members of the Native American Church to ingest peyote in that church’s rites. Even if the collective intent of a majority of the Indiana legislators were “discriminatory,” that intent does not appear on the face of the law. No court is bound to read discriminatory intent into it.

The collective hysteria over the law, though, comes from the fact that it may protect small businesses — particularly those businesses that provide services for weddings — from discrimination lawsuits and state action for refusing to service same-sex weddings. Note that word may. It’s no sure thing that a court interpreting the Indiana RFRA would hold even that requiring, say, a photographer to photograph a same-sex wedding “substantially burdens” that photographer’s free exercise of religion. But from the LGBT viewpoint [3] that’s about the worst possible result: a gay couple has to find another photographer, and the photographer whose religious scruples led her to decline the gay couple’s money would remain free to earn an honest living by her art. Meanwhile, the proffered doomsday scenarios — that the law would permit “No Gays Allowed” signs in restaurants, or ER doctors to refuse to treat gay and lesbian patients with impunity — aren’t within two thousand miles of the ballpark of possibilities. The suggestion that they are is a lie told by lying liars, signifying shameless dishonesty. No court has applied the Sherbert-Yoder test, the federal RFRA, or any of the similar state laws to reach such a result. The Indiana courts will not go boldly where no court has gone before.

But, as in so many instances, this is an instance where the reaction is a bigger story than the law. The reaction to the Indiana law’s passage is quite obviously a bigger story than the law itself. The LGBT movement has gotten a lot of mileage out of its victim status and painting any opposition as bullying after the fashion of Bull Connor. Historically, the analogy may have been apt; there was a time that “stay in the closet or suffer the consequences” was a real fear. I have lots of respect for LGBT people who lived through those hard times. I can sympathize with their injuries, which ought never to have been inflicted. But those times are with us no longer. When you have the power of most major news networks, the entertainment industry, the major sports organizations, a growing majority of politicians, and a whole bunch of rich multinational corporations to throw around, you don’t get to play Rosa Parks standing up to Jim Crow on the Montgomery bus anymore. The roles actually on offer are: gracious winner, or Sauron with the Ring.

“Boycott Indiana,” alas, is an example of choosing the latter.

[1] 374 U.S. 398 (1963).

[2] 406 U.S. 205 (1972).

[3] This is only a convenient shorthand; I am aware that there isn’t one “LGBT viewpoint.” I am also aware that more than a few LGBT (and “ally”) writers have expressed distaste for the notion of small businesses being bullied into providing services for same-sex weddings, and have no problem with RFRA as enacted in Indiana or anywhere else.


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