It seems like the best concept to introduce when attempting to address the hysteria surrounding Religious Freedom Restoration Act that was signed into law in Indiana last week.
Now, with Arkansas passing a similar law today, we need to take time to see through the absurdities and look at what this is really all about.
It's easy to get people to hate a law when it is characterized as "a license to discriminate" (particularly against homosexuals), and boy do people hate it. Companies have already announced they are not coming to Indiana, the NCAA has expressed concern about its continued presence there, a liberal church denomination has decided to change the venue of its upcoming convention to a different state, and now the governor of New York is placing some sort of restriction on travel to Indiana for state employees. #BoycottIndiana has been trending on Twitter for days.
How could anyone stand for such an odious law?
The answer is that no one can and no one will, because the law as it is being portrayed is a myth. It does not exist. It is a straw man.
In a recent post on my personal blog, I expressed concern that the current political/news climate of our country is turning us into a nation of what the Bible calls fools. In the Bible, fools are people who make no attempt at understanding but will angrily air their own opinions. This post is an attempt to help us really understand what is going on here.
What makes the "license-to-discriminate" characterization a straw man?
First, the Indiana law is based on bi-partisan federal law, which was sponsored by prominent liberal Senator Chuck Schumer (D-NY) and signed by President Clinton. It passed 97-3 in the Senate.
Since the time the federal law was passed, many states have passed almost identical legislation to the law in Indiana. There are now 19 (Arkansas will make 20) states that have passed religious freedom restoration act legislation, and ten others have religious freedom protections that have been interpreted by state courts to follow the same standard written in the Indiana law (called "strict scrutiny").
So this Indiana law is nothing new or unprecedented. It has a more than two decades-long history of enforcement and interpretation in the courts.
It is a law for the courts. Here is Section 9 of the actual text of the law:
Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.
What this means is that this law is for when someone is sued or charged with a crime and they believe that they are exempt from a law based on their religious convictions. Then the court is to decide, using the principles set forth in the law, whether this claim of religious exemption is valid. The criteria are (from Section 8 of the law):
A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.So the law is essentially written to protect people from lawsuits or criminal charges for carrying out their religious convictions. It is made to guide the courts in interpreting the Constitutional rights that we all have from the First Amendment. And a person is not protected from lawsuits or charges if the courts rule that there is a compelling government interest that cannot be carried out in a less restrictive way. Historically, people who have claimed religious exemptions have not faired well in court.
Here is how Notre Dame law professor Rick Garnett explains it:
[T]he act is a moderate measure that tracks a well-established federal law and the laws of several dozen other states. Contrary to what some critics have suggested, it does not give anyone a “license to discriminate,” it would not undermine our important civil-rights commitments, and it would not impose excessive burdens on Indiana’s courts. . . .
The act’s standard is applied in many jurisdictions across the land and it has long enjoyed support from across the political spectrum. This standard is not new; we have plenty of evidence about how it works. We know that courts have not applied it to require excessive accommodations or exemptions from anti-discrimination laws and civil-rights protections. Fighting invidious public discrimination is, American courts agree, a public interest of the highest order. Contrary to the concern quoted in the recent Tribune piece, a business owner or medical professional who invoked the act as a “license” to engage in such discrimination would and should lose. The act creates a balancing test, not a blank check.
Actual text of the law
More history on Religious Freedom Restoration Acts
What will not happen... and what might.
It's disingenuous, however, for supporters of this law to say it is not about homosexuality, because the reason these laws are being passed and proposed now, 20+ years after the federal law was passed, is to protect Christian business owners from lawsuits, specifically pertaining to new laws regarding same-sex marriage, sexual orientation and gender identity as protected classes, and health insurance mandates.
The hysteria that surrounds what might come of these laws would be funny if it weren't so dangerous. People are picturing "Straights Only" signs in business windows and a new form of Jim Crow in the states where these laws exist and are passed.
There are two reasons these extreme fears will never be realized. First, these laws are not new, and they have never granted someone a claim for a religious exemption for general antidiscrimination laws. While it should be pointed out that sexual orientation and gender identity are not protected classes by law everywhere, courts will never allow a business owner simply to refuse service to a homosexual, simply on that basis. Secondly, these fearful visions are not only legally unimaginable but also commercially untenable. The reaction against Indiana just for passing this law ought to be evidence enough for that. In the age of social media, the backlash against such a business owner would be swift and severe.
But the law may provide protection against what has already happened to business owners like this florist in Washington who are being sued, charged, fined, and given court orders in response to declining to participate in a same-sex wedding.
The fact is that those who oppose these laws know all this. But they want people like this 70-year-old florist to comply or be put out of business. They are intentionally using fear tactics so that people will attack the straw man of "Gay Jim Crow" to keep these types of laws from taking effect.
The Inevitable Conflict
It wasn't long ago that the gay rights movement was about the freedom just to live the way they wanted to live without fear of retribution. They wanted to be "tolerated."
The problem is that no one really wants to be "tolerated." Everyone wants to be embraced and affirmed, which is far different. Now that the movement has gained a critical mass, with all the judicial and political victories they have won and with pop culture, the academic left and the mainstream media in its corner, these activists are ready to throw their weight around. They are not content with tolerance but now demand full cultural affirmation.
The problem is that religion stands in the way. This conflict between LGBTQ... rights and religious freedom is inevitable when the government chooses to sanction behavior that the religious texts of most major religions explicitly name as a moral wrong.
People without religious conviction do not understand religious conviction. It seems to me that their assumption is that we who hold to strong religious belief are either unthinking, wishcasting, or using it as a mask to justify what we want to believe anyway. So when our deeply held beliefs clash with theirs, it is we who should back down since our beliefs are baseless anyway.
You can see this attitude in the aggressive stance that activists are taking against the religious objections to homosexuality. These aggressive tactics are meant to belittle and silence people, without a hint of the "tolerance" that used to be their rallying cry.
The first accusation is that we are the same people who used religious arguments for slavery and Jim Crow. The problem is that the religious arguments for slavery and Jim Crow were always spurious and mostly limited in scope to the region where people were trying to protect these institutions. This post is long enough without going into details about the different arguments made for white supremacy and separation of the races, but all of them took great interpretive leaps from the text using methods that are widely recognized as poor scholarship. The texts they utilized are far from specific and their resulting attitudes are antithetical to the message and hope of Scripture.
On the other hand, homosexuality is expressly forbidden in both the Old and New Testaments. Moses, Jesus, and Paul all agree on the definition of marriage. And while homosexuality is gaining some approval from some denominations in Europe and North America, there is no such move in the majority of the church, including Christians in Asia, Africa, and South America, where the church is most vital and growing.
In fact, when it comes to their methods of biblical interpretation and the limited regional scope of the movements, those who affirm homosexual practice have much more in common with the Southern white supremacists than those of us who stand with most of the world's Christians and all of church history.
Another accusation is that we are on the "wrong side of history." Christians do not view history in the same way humanists do. Humanists think of history in terms of inevitable Darwinian progress. Christians believe and observe that while technology inevitably improves, the human heart does not, and people are easily deceived. Many things that people once thought were good and progressive (eugenics is one recent example) are now seen as great evils. Sexual permissiveness is not a new thing. The pagan world of ancient times was pervasively sexual, and it was destructive to those societies. There is a mountain of evidence that increased sexual "freedom" has been devastatingly destructive in modern times, as well. This is not progress; it is regression.
The Christian view of history is that we are moving toward a day where God's redemptive plan will be complete. On that day, it will not matter whether our contemporaries approved of our beliefs and actions, but it will matter what God thinks. Yes, we actually, sincerely believe we will give an account to God for our lives. And when history turns to eternity, we don't want to be on the "wrong side."
So we are constrained to what the Bible teaches. While we recognize we may get some things wrong and Christians disagree with one another on how to interpret Scripture, we show our devotion to the Lord by doing our best to live by our best understanding.
I understand that this is nonsense to unbelievers. They will accuse us of clumsily holding up the Bible as an excuse to believe whatever we want to believe anyway. Because I have faith in God's goodness and wisdom revealed in Scripture, I won't say I wish that the Bible taught anything different from what it does, but I will testify that sometimes I recognize it would sure be a whole lot easier. It would be easier if I could say the Bible condones homosexuality, so I wouldn't have to agonize over this issue. It would be easier if it didn't sadden my heart every time I hear about the death of someone who died without faith in Jesus.
It would be easier, but the faith that has given me hope in this life, the faith that has shown me that all the good things in my life have come from obedience and all my regrets have come from wandering from His guidance, the faith that gives me hope for after this life--all of this is grounded in what is revealed in Scripture. So I have faith that what the Bible says is true, even the parts that are difficult for me to believe or accept. I am constrained to live by what I understand the Bible says.
Religious Freedom or a New Orthodoxy
It's hard to respect a belief that you do not hold, especially if that belief directly contradicts a conviction that is deeply personal to you. In fact, I would argue that it is really impossible to respect that belief. You can recognize that it is sincerely held, you can grant that a person has the right to believe what they want to believe, you can respect the person's dignity as a human being, but if you think someone is just flat wrong, you can't respect that belief. The best you can do is tolerate it.
That's why we have religious freedom as a fundamental right in this country. Most of what we recognize as abuses of religion throughout history really have to do with the absence of religious freedom. Whether it's the Romans throwing the Christians to the lions, or the Inquisition, or the acts of ISIS, what we see are people refusing to allow people to believe and practice something other than what the people exerting power will approve.
And it's not just limited to religious authorities. Some of the worst offenders in history have been secular powers trying to stamp out religious belief, like in the Soviet Union and in China. The point is that when a government wants to enforce a belief on people, the result is tyranny, whether it's economic tyranny (like forcing someone out of business) or physical violence.
People who affirm homosexuality as good and normal and people who have faith in what the Bible teaches on the matter cannot and will not agree on this issue. The best thing they can do is tolerate this difference of conviction and still show kindness to one another, respecting the humanity of each person, even if we can't respect each other's beliefs.
But that's not what's happening. The homosexuals and their allies are using their newfound strength to shout down and shame all opposing viewpoints. They are trying to enforce a new orthodoxy of belief, not just behavior. The issue with these Christian florists and bakers and photographers and such isn't that it is so hard for same-sex couples to find someone to take their money, it's that people are outraged that these Christians hold these beliefs at all. They must be punished for their beliefs, forced to admit (or at least act as if they admit) that they are wrong. They must submit to the new orthodoxy, with the courts and academic left as the new clergy.
So they set up a straw man, an enemy who is easy to hate, where Christians who resist are really only Westboro Baptist hate mongers in disguise, disingenuous bigots who are prooftexting their bias with a single verse from the absurd book of Leviticus, who want to make homosexuals second-class citizens in the name of "religious freedom." Then this straw man is mocked through social media and Internet memes until we all become the reprehensible butt of a bad joke, worthy of all the scorn we receive.
The problem is that religious freedom is the first right given in the Bill of Rights for a reason. It recognizes the God-given right to freedom of conscience. It allows all of us to live according to our convictions and is the right from which all other basic human rights (except the right to life, of course) proceed. It is no light thing to force someone to violate their convictions simply because you don't like or respect them. That's why Christians should be active in protecting Muslim rights in the U.S., instead of so often being on the other side. If the government can trample one group, it can trample another.
Thomas Jefferson and Baptists stood together to create the religious freedom statute in Virginia that became the basis for the First Amendment. They didn't agree on much. But Jefferson wanted the government to be free of denominational politics and tests of orthodoxy, and the Baptists wanted the government to stay out of their church life. So they could agree on religious freedom.
Baptists and other Christians who have historically orthodox views on sexuality and the LGBTQ... community don't agree on much. But we ought to agree that we want to be free to live out our beliefs without fear of government retribution. We ought to be able to agree on religious liberty.
**You might then ask the question, "If you believe that homosexuals should be free to live according to their beliefs, do you support marriage equality?" That's a fair question, but this post is already really long. I may at some point try to address what I believe ought to be the Christian citizen's stance on same-sex marriage in another post.
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