When IN passed its warped version of the Religious Freedom Restoration Act which, unlike the federal RFRA and most state level RFRAs, was designed to target LGBTQ people (vulnerable because IN, like many states, does not include sexual orientation or gender identity and expression in its civil rights code), I predicted a backlash against all RFRAs and against the special protections this country has always given to religious expression, especially the expressions of minority religious views and practices which are often unpopular.
Sadly, I was right. It is with a heavy heart on this Easter morning (in most non-English-speaking nations called Pascha morning) that I take time out from celebrating the central event of my faith in order to defend religious liberty--and to insist that this struggle is both compatible with the struggle for LGBTQ rights and just as vital to a free society--even for those of no religious faith.
I am not a lawyer. I am a person of faith and I was an intern with Americans United for the Separation of Church and State in the early '90s when the struggle for the creation of the federal RFRA was ongoing. I know most of the players in the church/state field.
I described the history of this struggle and how a law designed to protect vulnerable minorities could be misused as a template for laws against other vulnerable minorities in this diary.
Yet, today, a diary outlining a (flawed) case against all RFRAs is in the Community Spotlight. The author, and many others on this site, seem to care little for the very notion of religious liberty. Perhaps they have a Richard Dawkins/Sam Harris-type belief that religious beliefs are not merely mistaken (the old atheism) but harmful to society and need to be stamped out (the new atheism). Some appear to see all protections for religious expression as merely disguises for attacks on the LGBTQ community--and most of the RECENT state RFRAs are just that.
Myprevious diary was an attempt to show the bad situation that the original RFRA was designed to correct, that is the Supreme Court's abandonment (thanks to nutjob Scalia) of the "strict scrutiny" and "compelling reason" tests for restricting the free exercise clause of the First Amendment. These tests were developed especially in the cases Sherbet v. Werner(1963) and Yoder v. Wisconsin (1972). That is, it was ALWAYS realized in U.S. society that Free Exercise clause of the 1st Amendment was not (could not be) absolute. Your religious belief may require human sacrifice, as an easy example, but that will never be a successful defense in a murder trial. The government's interest in protecting the lives of citizens overrides not the religious belief, but that religious practice.
Applying strict scrutiny and compelling interest tests means, however, that this nation so values religious liberty that it only overrides religious practice when necessary to protect some greater value. When a religious belief and practice is widely shared it is usually able to stick up for itself. It is minority religious practices that are threatened when strict scrutiny and compelling interest are set aside. That is what happened in Employment Division v. Smith(1990). A man named Smith was a member of The Native American Church while simultaneously employed as a federal prison guard. The Native American Church mixed together religious practices of several indigenous Native nations/tribes and placed them into a semi-Christian framework. One of their practices is to use the juice of the peyote cactus (a powerful psychedelic drug) as a sacrament. As one might imagine, federal prison guards sign "no drug use" employment contracts--and even if we abandon the failed "war on drugs," I, for one, would think that such a contract would be appropriate. At any rate, Smith took a routine drug test and was found positive for peyote. He was fired, filed for unemployment insurance, but was denied because his contract had a zero tolerance clause. Claiming this infringed upon his religion (which it clearly did) Smith filed suit all the way to the Supreme Court.
Now, I am not a lawyer, but, as I mentioned, I moved in circles of watchdog groups that worked to protect religious liberty. At the time, I knew most of the leading lights of the American Civil Liberties Union, Americans United for Separation of Church and State, the Baptist Joint Committee on Public Affairs (now called the Baptist Joint Committee on Religious Liberty), the Friends' Committee on National Legislation, the Religious Liberty taskforce of Seventh Day Adventists, the editors of Church and State, Report From the Capital, etc. These religious liberty watchdogs were excellent SCOTUS watchers. They knew that the Renquist Court was trying to weaken the No Establishment clause. They were less prepared for it to weaken the Free Exercise clause. The optimists watching the Court thought that Smith might prevail in his claim, especially since his lawyers pointed out that the Catholic Church had been permitted to use real wine in the Mass even during Prohibition. The pessimists, knowing that the word "drug" scared the conservatives on the SCOTUS silly, thought that Smith's claim would fail, but they believed the SCOTUS would say that, after strict scrutiny, the government DID have a compelling interest to make sure federal prison guards were sober on duty, even at the expense of sacramental peyote use. What no one expected was what happened, Scalia and the SCOTUS majority THREW OUT the tests of strict scrutiny and compelling interest. According to Scalia, to pass the Free Exercise clause, a law need only be "facially neutral," (i.e., not targeted at any religious group or practice), to be "non-coercive." If it was and still hurt a religious practice by accident, well that was just too bad. THAT was the stupid standard that RFRA was designed to combat.
The problem is not RFRA, it is the Renquist and Roberts' SCOTUSes. It has a majoritarian mindset that does not care if vulnerable minorities are harmed. It has shown this in case after case in many areas. Individual rights are trumped by businesses. In the campaign finance case, Citizens United v. United States, the Court ruled that corporations are businesses entitled to free speech and that money is speech, so one cannot restrict how much money a business donates to a campaign! In Burwell v. Hobby Lobby, Inc. (2014), the SCOTUS misused the federal RFRA to claim that an employer's religious beliefs about birth control should decide whether that medical prescription should be covered by employer-based health insurance. Ridiculous. Since when do employers' religious beliefs dictate the consciences of employees? If my employer is a member of the Church of Christ, Scientist or other group that believes only in faith healing, do they get to deny me conventional medical coverage at all, despite the ACA and despite MY religious beliefs? If my employer is a Jehovah's Witness, can I be denied a blood transfusion? After Hobby Lobby, I am not sure--and am definitely worried.
And now IN, AR and others tried to use a state level RFRA with extra language about businesses that was clearly written in light of Burwell v. Hobby Lobby, to allow discrimination against LGBTQ people (and, perhaps, to restrict the reproductive freedoms of women). But the problem is not the original RFRA as some would argue.
The problem is that neither the federal government nor many states have civil rights codes that include sexual orientation and gender identity and expression as protected classes, along with race, sex, religion, national origin, age, and disability. Democrats and progressives need to work hard to get those protections put in place.
But we don't need to be abolishing all RFRAs as some are arguing. Think what that would mean. Without strict scrutiny and compelling interest then any law which accidentally infringes on religious practice is okay. There has been a strong push recently by many in the medical community to do away with male circumcision. There may be sound medical reasoning for such a law--but do we really want a law that forbids Jews and Muslims from circumcising their sons?
Do we want school dress codes that forbid the Hajib or the wearing of crosses or the kipoh? What about requiring legal oaths for Friends/Quakers, Mennonites, or the Amish? Some on this site have urged mandatory voting laws, but do we want to compel the Amish (whose view of church/state separation forbids political participation) to vote? I am a Christian pacifist. If we return to a military draft (there was some move toward this at the beginning of the Iraq invasion until the military itself pushed back), will those who share my objections to war be compelled into uniform (or prison) because the law was "facially neutral" and did not target us? What about employers forcing Jews to work on the Sabbath? Muslim girls being forced to swim in mixed-sex gym classes in public schools? Lawyers, please correct me if I am wrong, but I think all of these would be possible under the weakened "noncoercion" interpretation of the 1st Amendment given in Employment Division v. Smith.
I have a daughter who identifies as bi-sexual and a gay nephew. I want to protect LGBTQ folk from discrimination. Many of those I want to protect are also persons of faith. But, barring a SCOTUS that would overturn Employment Division v. Smith, I am not willing to abolish all RFRAs as a means of doing so.
Maybe some on this site think all religion is harmful and needs to be abolished. I cannot agree and am glad you didn't write the 1st Amendment to the U.S. Constitution. My passion for social and economic justice, for ecological care and global peacemaking are all deeply intertwined with my faith. That others have other motivations for similar goals is perfectly okay with me. But if it becomes a Daily Kos consensus that the struggle for LGBTQ rights entails a weaker defense of religious liberty, then I must part company.
We can and must struggle for both together. We live in a pluralistic society. As POTUS Obama says (and whatever my criticisms of some of his actions, I LOVE that he gets this!), our diversity in this country is a STRENGTH, not a weakness. But pluralism always involves tensions. Claims compete. Viewpoints and practices clash. Negotiating these clashes is tricky. But I say that a strong commitment to religious liberty must be a part of that negotiating of counter claims.
If we pit gay rights against religious liberty, then we demand that religious gay people choose between differing parts of their identity. That is wrong.
We can and MUST do better.