RFRA offends the right people

It looks as if passage of a Religious Freedom Restoration Act in Indiana is almost assured now.

A fairly sleek federal prototype has been turned into a convoluted multi-page state version. That’s just what happens, I guess, when a pretty simple concept (the free exercise of religion is important, it’s threatened, and it’s not identical to the right of free speech) gets sullied by collateral attacks (notably, the national news stories, involving same-sex “marriage,” that occasioned Indiana RFRA’s introduction). Those collateral attacks have been effective enough in our polarized political culture that opponents now just call the bill things like the “religious discrimination act.”

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Like a dog returning to its vomit, our local newspaper amplifies that idiocy. Humility has never been among its editorial virtues. It savagely defended a sexual predator because – well, he’d been the poster boy for our gay rights ordinance, so he couldn’t possible be a predator, could he? It’s wrong to “discriminate,” so what could possibly go wrong if we take a guy who’s attracted to guys and put him in an an unsupervised power position over troubled adolescent (not pre-pubescent) guys? The people who thought something was fishy about that were Not Our Kind of People, either.

But Wisconsin officials found our poster boy in flagrante delicto, and a search turned up secret selfie videos proving conclusively that the Indiana charges had been true all along.

So the newspaper had to come clean and admit that it had been horribly, tragically, arrogantly wrong and that 28 cheese-heads paid the price.

Ha ha ha! Had you going, didn’t I? No, of course it didn’t come clean! The newspaper took a subdued, passive-voice approach. “Mistakes were made,” you know. “We all were taken in.” That sort of thing.

No, we weren’t all taken in. The Wrong Kind Of People thought the troubled adolescent boys who accused this criminal of sodomizing them were telling a plausible story that merited investigation. Only ideological blindness kept the newspaper from seen that they were right: the charges might be true or might be false but they weren’t off-the-wall.

You can buy your ink by the barrel, but it’s hard to spill enough of it to cover up that kind of error in judgment.

Just so now. RFRA supporters are Not Their Kind of People. End of subject. Bring out the ridicule and the accusations. Pour on the ink!

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Now might be a good time to recall why we needed, , and still need, RFRA.  The answer is not “so fundamentalist creeps can discriminate against our dear GL brothers and sisters.” Read the two preceding links. And remember that Federal RFRA does not apply to Indiana. That inapplicability is a federalism principle, applied by the Supreme Court after Federal RFRA was adopted (and rightly so, I must admit).

I’ve spent some time on this issue, and I’m not talking about blogging time, which without some background is just mouthing off – like writing newspaper editorials. I’ve come to realize that Antonin Scalia’s rationale in Employment Division v. Smith wasn’t quite so sweeping as I (and just about everyone else) first thought. At the Federal level especially, few laws impinging on religious freedom are passed without some exception lobbied for by the Chamber of Commerce (e.g., does not apply to employers with fewer than 15 employees) or the AFL-CIO or someone powerful. When Congress builds in such exceptions, they make the law no longer “neutral” and “of general application,” so religious conscience exceptions will ride in on the coattails of the other exceptions.

That suits me just fine. But it requires lawsuits and courts, just as some lawsuits and courts will probably be needed to adjudicate Indiana RFRA claims:

  • Is the religious claim sincere?
  • Is the burden on free exercise material?
  • Is the government interest for the burden compelling? (Here’s where I think courts are suspiciously deferential.)
  • It the burden as narrowly tailored as possible to serving the compelling interest? (This is where other exceptions to the law prove that a little lenity for religion, too, would be in order.)

The only reason that’s a problem, in the eyes of the press, is that the press values religious freedom outside the Church building so very, very little. Oh: and we don’t have any notorious cases yet in Indiana of religious freedom being materially burdened for trifling, trendy causes.

That “not a problem in Indiana” argument sure was a winner on imposition of same-sex marriage, wasn’t it?

It also remains true that, in many cases, the concerns of religious people can be protected as freedom of expression or freedom from compelled expression, as when a photographer declined to photograph the Alan Sears family for an ADF Christmas Card because the photographer disapproved of ADF:

I oppose the goals and objectives of your organization and have no interest in working on its behalf.

How did religious freedom warrior Sears respond?

“We’re talking about human dignity. It violates someone’s dignity to require them to create images that violate their core beliefs,” Mr. Sears said. “I think I’m a pretty nice guy, and my family are kind folks, but to require this woman to portray me in a loving, family-centered way that is contrary to her views and her conscience, I think it would be an act of violence against her dignity.”

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I’m frankly hard-pressed to come up with an example of a situation in which I – if I was a baker, photographer, florist or bandleader (wonder why nobody has dragged a band before a Human Relations Commission for declining to play at a same-sex “wedding” reception?) – would decline to serve a gay or lesbian individual at all (I’ve served many in my real profession). It appears that I’m not alone on that, as most of the craftsmen in the cases now working through the courts regularly served gays and lesbians, but drew the line and doing custom flowers, photos or cakes for a ceremonial union (as I’d be a poor choice to lead a charge for same-sex marriage in the courts).

I’m even hard-pressed to come up with an example of a situation in which I would decline to help celebrate a same-sex “wedding” for religious reasons that weren’t equally (or even more) refusals to express a sentiment I could not express with integrity.

But same-sex unions isn’t the whole point of RFRA, as witnessed by the historic Supreme Court case that led to its adoption. So I’m happy that we’re going to get an Indiana RFRA, and to be a sore winner instead of a sore loser for a change.

The victory may be brief, though, as those who hate religious freedom already are doubtless at work on strategies to get a federal judge to strike down Indiana RFRA because we’re mean. “Just look at the newspaper coverage at the time: the motivation for Indiana RFRA was to let fundamentalist creeps discriminate against our dear GL brothers and sisters,” right?

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“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.