Warning: Mostly RFRA

  1. Taking minor issue with the master
  2. Is it time for backlash?
  3. Untethered exceptions
  4. “Selma Envy.” What more is there to say?
  5. When an inner voice whispers assent
  6. Told ya so!


I have cited the Religionlaw blog as a neutral source, and I stand by that. Professor Friedman is a treasure.

He stepped outside his usual role of conduit, as he occasionally does, to offer his own analysis of “Why Is Indiana’s RFRA So Controversial?” without saying the reasons were good or bad. I think his second reason was bad:

Traditionally it was assumed that the federal RFRA would be used by minority religions to fend off broad regulations that might be enacted without a careful weighing of idiosyncratic religious practices that are important to often discrete and insular groups with comparatively small numbers of adherents.  Since Hobby Lobby and the explosion of same-sex marriage cases, it is largely the Christian majority (or a segment of it) that asserts it is the victim of the majoritarian process, seeking exemptions that have a negative impact on minority groups that have broadly been the victims of past governmental discrimination.

My reply in his comment boxes:

I appreciate your dispassionate approach and follow you, well, religiously.

Where I think your analysis of the Zeitgeist may be right, but the Zeitgeist is wrong, is point 2. The umbrella term “Christian” conceals more than it reveals. The “Christian majority” consists of some 40,000 denominations and sects, some with less power than Sikhs and Muslims, whose idiosyncratic interpretations deserve as much protection as any other minority religion because minority religions is what they are.

(West Lafayette, its own city and host to Purdue University, also has a Human Relations Ordinance that applies to sexual orientation, by the way)

In other words, his parenthetical “Christian majority (or a segment of it)” isn’t a very useful analytical construct, for which I fault not him (well, not very much), but the incoherence of those who feel besieged by a powerful majority rather than sometimes annoyingly slighted by quirky minorities.


[I]f there is no attempt to balance religious liberty and civil rights, the cause of gay rights will be associated with coercion, not liberation. Some people have lost their jobs for expressing opposition to gay marriage. There are too many stories like the Oregon bakery that may have to pay a $150,000 fine because it preferred not to bake a wedding cake for a same-sex ceremony. A movement that stands for tolerance does not want to be on the side of a government that compels a photographer who is an evangelical Christian to shoot a same-sex wedding that he would rather avoid.

(David Brooks) And, of course, balancing is exactly what RFRA calls for in innumerable and often unforeseeable cases – most not involving gay rights at all.


Opponents of Indiana’s RFRA seem to think they have two trump cards to prove that it “licenses discrimination.”

First, it expressly applies to disputes where government is not a party. But something like four U.S. Circuit Courts of Appeal have held that federal RFRA applies to disputes where government is not a party while others have held that it does not. Indiana merely decided that its RFRA should so apply.

Of course, when one individual alleges in court or agency that another individual or private business discriminated, the government is involved – via the court or agency hearing the dispute. For several disreputable decades, segregation was enforced in the U.S. by private, racially-restrictive subdivision covenants, until Shelley v. Kraemer:

The United States Supreme Court held “[T]he restrictive racially-based restrictive covenants are not, on their face, invalid under the Fourteenth Amendment.” However, while private parties may voluntarily abide by the terms of a restrictive covenant; they may not seek judicial enforcement of such a covenant because enforcement by the courts would constitute state action. Since such state action would necessarily be discriminatory, the enforcement of a racially-based restrictive covenant in a state court would violate the Equal Protection Clause of the Fourteenth Amendment.

You can’t get to an authoritative resolution of a dispute between individuals without government fingerprints being on it somewhere, so I suggest that extending RFRA to disputes where government is adjudicating, but not a party, is a trifling, immaterial difference when the question is “licensing discrimination.”

Second, the Indiana Legislature rejected a proposed amendment to make RFRA inapplicable to Indiana’s civil rights laws or to Human Relations ordinances of Indiana cities and counties.

That’s true, but

[i]n February, 16 prominent First Amendment scholars, some of whom support same-sex marriage, backed Indiana’s legislation. “General protection for religious liberty is important precisely because it is impossible to legislate in advance for all the ways in which government might burden the free exercise of religion,” they explained.

(Wall Street Journal, emphasis added) The spirit that motivated the proposal to carve out of RFRA application to any statute forbidding discrimination assumes that we know that government could never burden the free exercise of religion by categorically forbidding discrimination, no possible exception. Why not, then, by the same spirit, declare that the law doesn’t extend to laws authorizing prisons to impose rules on prisoners, the Affordable Care Actthe Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act, zoning restrictions, drug laws, or any one of innumerable other laws that somebody thinks should brook no exception?

Why, in other words, should we presume to announce, in advance, in a factual void, that “no claim of religious freedom could ever, in any circumstance, overcome any complaint about discriminatory treatment by a private individual or business”?

(All this is apart from the root fact that RFRA absolutely, categorically, 100% gives nobody anything more than their day in court to prove that the free exercise of their religion is substantially burdened in the service of a state interest that is less than compelling or is compelling but served too broadly.)


Hans Fiene, who usually produces “Lutheran Satire,” a YouTube channel, stepped masterfully into a different kind of satire: Gay Marriage Isn’t About Justice, It’s About Selma Envy:

Why do so many young adults paint absurd caricatures of Christians who request government protection of their religious freedoms, arguing their true goal is to ban gay men from sitting at the local lunch counter? Why do they spread falsehoods about legislation, insisting that bills like the one recently signed by Indiana Gov. Mike Pence will unleash a Republican-led Jim Crow revival aimed at the LGBT community? Why do so many people, Gen Xers and younger, invent a monster of anti-gay bigotry and keep screaming the monster is real despite a mountain of contrary facts standing before them?

The answer is “social studies.” My generation engages in straw men, misinformation, and lies because, in every year of social studies class, we studied the civil-rights movement not as history, but as hagiography. We didn’t just learn what events happened on American soil, we were encouraged to mimic the segregation-defeating holy ones and merit for ourselves a place alongside them in glory. Combining that admonition with our general aversion to hard work, we concluded that the only thing necessary to be as righteous as the saints who fought racial injustice was to decry an injustice that no one else was. And we became so desperate to find that injustice, we lost our minds in the process.

I think he’s right. I’ve said for years that I kind of miss the cold war, because the U.S. is such a soulless place per se that it needs some opposing evil to create the illusion that It Lives! It Lives! I thought (and still think) that our Middle East bellicosity (consequences be damned!) is part of how we nationally try to feel alive. But it’s hard to deny that the revival of righteous anger at moral monsters (that would be people like me) is maybe even more fun.

But watch for the unintended consequences here, too, idiots.


Speaking of losing our minds (that would be the minds of those who don’t agree with me):

[T]here’s no place other than the post-Christian West where gays and lesbians are affirmed as gays and lesbians. The moral law is written on the Gentile’s heart, as St. Paul puts it. As a consequence, all of us—including gays and lesbians themselves—have a sense that there’s something right about traditional sexual morality. It’s very painful when an internal voice whispers assent….

The New York Times recently published an op-ed illustrating the existential vulnerability felt by homosexuals. Jean Mills and Carol Eichelberger of Tuscaloosa allow that their neighbors treat them well. There are no separate water fountains. They don’t have to sit in the back of the bus. They were never threatened, never spat upon. On the contrary, they report living amid kind and courteous neighbors. But the 2006 election in Alabama featured an amendment to define marriage as the union of a man and a woman. They felt discriminated against by the fact that a local church publicly encouraged its members to vote for the amendment. “It was a personal, painful reminder that we were not to be thought of or treated as equals.”

Mills and Eichelberger’s experience is typical. I doubt that a fair-minded researcher could find clear statistical evidence of significant discrimination against gays and lesbians in employment, housing, and other areas targeted in Beyond Marriage Equality. A 2012 survey sponsored by Prudential found that gay and lesbian households reported much higher income ($61,500 as compared with the national average of $50,000), lower debt, and higher rates of employment than did the rest of the population. These aren’t exactly signs of systematic discrimination.

And yet we don’t need to be convinced that young people with homosexual desires who grow up in conservative Christian churches can feel an acute existential despair. Or that quite confident homosexual adults with professional careers and high social standing are stung when their sexual lives are described as unnatural and sinful. For this reason, the Selma Analogy resonates.

The relative lack of real discrimination combined with a powerful sense of urgency means that Beyond Marriage Equality is very likely to be followed up by Beyond ­Nondiscrimination. We will be required to affirm and endorse. We will be obligated to drown out, with a chorus of affirmation, the voice of conscience that makes gays and lesbians so existentially vulnerable. The goal, then, will be to stamp out “homophobia.” This means a campaign against a “culture of homophobia.” Which means a culture war against Christianity, Judaism, Islam, and every other religion and traditional morality.

(R.R. Reno, First Things, The Gay Movement (emphasis added) – pay wall)


I seldom get to say “I told you so!” quite so soon or loudly, but on 2/22/15 I quoted Chai Feldblum:

I believe granting liberty to gay people advances a compelling government interest, that such an interest cannot be adequately advanced if “pockets of resistance” to a societal statement of equality are permitted to flourish, and hence that a law that permits no individual exceptions based on religious beliefs will be the least restrictive means of achieving the goal of liberty for gay people.

That’s exactly what RFRA opponents feared; that without “permit[ting] no individual exceptions based on religious belief” would allow “pockets of resistance” to survive. That was the point of the amendment they wanted but the legislature rejected.

* * * * *

“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.

One thought on “Warning: Mostly RFRA

  1. Re RFRA: “Riff raff” keeps coming to mind. This is the way Christians and more esoteric religious groups now can expect to he treated, I ‘spose. Keep that rabble in their place.

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