Religious Liberty a right put out to vote

M A Y 4 , 2 0 1 5 the National Review

Nothing better illustrates the sheer irrationality of the national furor over the better illustrates religious-freedom law passed by Indiana than the absence of a national furor over the religious-freedom law passed by Arkansas the following week.

Indiana passed a religious-freedom law that critics said amounted to free rein for discrimination against gays. Under pressure from liberals, the media, and businesses, the Republican legislature amended the law to quiet the critics. The Republican governor, Mike Pence, signed the amendment.

Arkansas got some of the same negative attention when its Republican legislature passed a religious-freedom bill that was also decried as anti-gay. Its Republican governor, Asa Hutchinson, refused to sign the bill until it was changed.

Supporters of both the Indiana law and the Arkansas bill said that they were merely creating state equivalents of the Religious Freedom Restoration Act that had been enacted at the federal level, to bipartisan acclaim, in 1993.  That law said that the federal government could impose a substantial burden on the exercise of religion only in furtherance of compelling interest, and only by the least burdensome means possible. Otherwise courts would give people with religious objections to obeying exemptions from it.

There have always been some people who think that, as a matter of principle, everyone should have to follow all laws, with no exemptions based on religion. But the law has long allowed for such exemptions. For most of the three decades prior to the Religious Freedom Restoration Act, the Supreme Court had held such exemptions to be required byte First Amendment. Before the courts got involved, legislators had codified exemptions piecemeal.

This tradition remains sufficiently strong that few of the partisans in the battles over the Indiana law and the Arkansas bill attacked exemptions in principle.  Instead, the critics mostly said that the state legislation went beyond the federal law in two troubling ways. It gave religious rights to businesses,  not  just  to  persons;  and  it applied to litigation in which the government  was  not  a  party.  

The federal Dictionary Act defines “persons” to include corporations except when otherwise specified, and the Religious Freedom Restoration Act does not say otherwise. Legislative debates in the 1990s showed both liberal and conservative legislators to understand the law to apply to businesses. In last year’s Hobby Lobby decision, the Supreme Court held the law to apply to businesses, or at least closely held businesses, and only two of the liberal justices dissented.  Most circuit courts have also ruled that the federal law applies to private litigation. The Obama-Holder Justice Department reads the law that way, too.

If the law is to allow religious exemptions, it makes sense to allow it in these contexts. The principle is identical. Kosher  deli  should  be  able  to  ask  in court  for  a  religious  exemption  to  food-preparation regulation that conflicts with its owner’s or owners’ faith. The reasonable questions to ask in such situation are: Is this regulation necessary to advance an important governmental purpose, and is it the least burdensome way to do it?

Whether the people asking for the exemption are seeking to make a profit should be irrelevant to the inquiry. And because the point of the law is to guard against government infringements of religious liberty, it should not matter whether the government is actually apart to litigation that involves it’s in -arrangement. Everyone understands this point when it comes to other freedoms. Imagine that a government authorized private lawsuits against newspapers for publishing content critical of the ruling party. We would not say that the government was respecting the freedom of the press, and we would not say this even if the government itself refrained from prosecuting any critics.  Nor would it matter if the affected media outlets were for-profit corporations.

Tim Cook, the CEO of Apple and himself openly gay, wrote an op-ed claiming that the Indiana law created a license to discriminate. Nonreligious-freedom law has been read that way. There are almost no cases in which anyone has even asked a court to grant him a general right not to hire black people, or serve gay people, for religious reasons.  There have been cases in which more specific exemptions from nondiscrimination laws were sought. A photographer in New Mexico, for example, did not wish to provide services for a same-sex wedding because of religious convictions. Even such narrowly drawn claims, which have generally been made by people who said that they would happily provide services in contexts other than weddings, have tended to lose in court.

The  combined  pressure  of  people who did not want wedding photographers to be able to bring such a claim to court, and people who thought the law went much farther than it actually did,  was  too  much  for  Indiana  Re -publicans. In the guise of “clarifying “their religious-freedom law, they amended it so that it could not be used to win exemptions from nondiscrimination laws.

Legislating under pressure, much of it misinformed, created some anomalies. Indiana does not prohibit discrimination on the basis of sexual orientation, although some Indiana communities do. In those places, a florist with a religious objection to same-sex marriage will probably have to swallow that objection. Everywhere else in the state, a company has the legal right not to serve gays at all, whether or not its owners have any religious motives.

Arkansas had a better outcome. Its revised version of the bill, which Governor Hutchinson signed, omitted any reference to businesses or private litigation.  Instead it included a provision telling the courts to interpret the law in away “consistent with the Religious Freedom Restoration Act of 1993,” that is, the federal law. That should mean that it is interpreted to protect businesses from private litigation. It was an ingenious solution. It disarmed the critics’ main weapon: the claim that conservatives in Indiana and Arkansas were going dangerously beyond the federal law.

 But the new Arkansas law seems to accomplish exactly what the critics said they op -posed. If it’s a kind of legislative hate crime to let businesses invoke religious rights in private litigation, the law should have been a new provocation rather than, as it seems to have been, an end to the national shout fest.

That denouement suggests that the controversy had very little to do with the actual substance of any legislative proposals. Both states ended with greater statutory protections for religious liberty than they had previously had on the books. Indiana weakened its law but did not repeal it, and the weakening amendment will not affect many possible cases. (It would be irrelevant to a case involving the ceremonial use of peyote, for example.)

It is possible, then, to put an optimistic conservative gloss on the debate. It is also worth noting that Republicans were more supportive of religious-liberty legislation during it than they were during a flare-up over very similar legislation in Arizona in early 2014. A Republican governor vetoed that legislation after both of the state’s Republican senators and the 2012 Republican presidential nominee, Mitt Romney, denounced it. This time the Republican presidential hopefuls uniformly defended the law, if at varying speeds.

Yet the debate was also a setback for religious liberty. It is often said that rights should not be put up for a vote. Governments will protect rights, however, only if those who wield governmental power are committed to them. It depends, in our system, on votes by legislators, by judges, and ultimately by citizens.

Polling on these religious-liberty controversies is murky. The failures of religious-liberty claimants in cases involving same-sex marriage, coupled with the absence of any effective protest against those failures, is a sign that the public commitment to religious freedom is not as strong as it should be. And the confused debate over religious-freedom legislation is assign that the strength of that commitment is headed further downward.

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