After Indiana Gov. Mike Pence signed a state religious liberty bill last Thursday, liberals lined up to ravage this "anti-gay" legislation as a "license to discriminate." Indianapolis-based Angie's List said it was shelving a headquarters expansion plan that would have brought the state a thousand jobs. Hillary Clinton and Apple's Tim Cook objected. Even singer Miley Cyrus weighed in, writing that "the only place that has more idiots than Instagram is in politics."
I support gay marriage. I support anti-discrimination laws protecting lesbian, gay, bisexual, and transgender (LGBT) citizens. But I also support religious liberty. These commitments sometimes conflict. But it is a sad day when there is so little support for the liberties of U.S. citizens, especially among liberals who should be their staunchest defenders.
Religious liberty took a big hit in a 1990 Supreme Court decision that went against American Indians fired after they ingested a hallucinogen in a Native American Church ritual. A law can prohibit any form of worship, Justice Antonin Scalia argued for the majority, as long as it is "neutral (and) generally applicable."
Outraged over this reasoning, which would have outlawed using wine at the Catholic Mass during Prohibition, Congress responded (nearly unanimously) in 1993 with the Religious Freedom Restoration Act (RFRA). Signed by President Clinton, this act instructed the judiciary to return to its prior approach, in which burdens on individual religious liberty would be unlawful unless the government could show that the burden was necessary to achieve a "compelling government interest" and that the law doing so employed the "least restrictive means."
After the Supreme Court ruled in 1997 that the RFRA applied only to the federal government, states responded with mini-RFRAs requiring this "compelling government interest" test in their religious liberty cases. Of these, Indiana's RFRA is the 20th.
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?
For as long as I can remember, the culture wars have been poisoning our politics, turning Democrats and Republicans into mortal enemies and transforming arenas that used to be blithely bipartisan into battlegrounds between good and evil. Now our battles over "family values" are threatening to kill religious liberty. And liberals do not much seem to care.
In a recent speech at Boston University, University of Virginia law professor Douglas Laycock observed that America's sexual revolution seems to be going the way of the French Revolution, in which religion and liberty cannot coexist. Today pro-choice and gay rights groups increasingly view conservative Christians as bigots hell bent on imposing their primitive beliefs on others.
Rather than viewing today's culture wars as battles between light and darkness, Laycock sees them as principled disagreements. What one side views as "grave evils," the other side views as "fundamental human rights." What is needed if we want to preserve liberty in both religion and sexuality is a grand bargain in which the left would agree not to impose its secular morality on religious individuals while the right would agree not to impose its religious rules on society at large.
Any takers? Is it really necessary to pin a scarlet letter on those who believe the Bible prohibits gay marriage? Or might we learn to be satisfied with preserving liberty for ourselves without imposing our ideals (on sex or religion) on others?
Admittedly, there are problems with Indiana's RFRA. For example, it extends religious liberty protections to corporations. But few liberals are up in arms about that. The left sees this law as a blank check to discriminate. But RFRAs are not blank checks. They simply offer religious minorities a day in court, and only rarely do these cases concern gay rights. Recently the Supreme Court employed the RFRA test to allow a Muslim prisoner to wear a beard and in Pennsylvania that same test was used to allow churches to feed the homeless in city parks.
Almost all of my liberal friends disagree with me on this. That is their right. But in my view the Old Order Amish have an equally fundamental right to drive their horse-drawn buggies on Indiana roads. So do Muslim students in Indianapolis public schools who want to be released from class in order to celebrate their Eid al-Adha festival.
Let's not let culture warriors, on either side, sacrifice our freedoms on the altar of the culture wars.
