In Employment Division v. Smith, the Court held that an American Indian was not exempted from a criminal law prohibiting use of hallucinogenic drugs, even though peyote was used as part of the ritual of the Native American Church. The Court, in a majority decision by Justice Scaglia, found that since the statute in question did not single out American Indians in its ban on hallucinogens, it was not unconstitutional under the First Amendment’s prohibition of restraints on the free exercise of religion.
Noting that the country was founded as a haven for religious dissenters, observers who were bothered by this result successfully petitioned Congress in 1993 to pass legislation known as the Religious Freedom Restoration Act (“RFRA”). The RFRA was intended to allow people like the appellant in Smith to engage in practices required by their religious faith that might otherwise be unlawful absent some compelling state interest that otherwise could not be protected. In 1999 the U.S. Supreme Court interpreted the RFRA to only apply to federal laws (Boerne v. Flores), so a number of states (including Arizona) passed their own version of the Act, intending to protect religious practices found to conflict with state laws by exempting them from such laws’ purview.
This same issue has come up in connection with Obamacare, specifically whether employers will be required to offer contraceptives and abortion under their group health care plans, even though it might conflict with the business owners’ religious convictions.
(This will be addressed by the Supreme Court next summer in a case brought by Hobby Lobby.)
Another concern that has many social conservatives worried arises from incidents where people like a wedding photographer (New Mexico) and a baker of wedding cakes (Oregon) have been subjected to prosecution under state discrimination laws for refusing to provide their services in connection with gay weddings, claiming their religious beliefs preclude their participation in such events, however tangential. This has led seven states to consider adopting their own versions of the RFRA to avoid these situations. They are Oklahoma, Tennessee, Ohio, South Dakota, Mississippi, Idaho, and Kansas.
When the Arizona state legislature recently passed amendments to its version of the RFRA, even though there is no mention of same sex marriage in the original act or the amendments, there was a huge national outcry. The argument was that even clarification of the law (e.g. saying whether the law applied to incorporated businesses, as well as individuals), would unleash a torrent of harsh and punitive legislation (“Jim Crow laws” or “Segregation” against gays) under the guise of religious freedom.
The criticism of the Arizona legislation eventually extended to all parts of the political spectrum, including the last two Republican presidential nominees, and was so widespread and vehement that Arizona governor Jan Brewer, a Republican, vetoed the law on Wednesday, February 26, 2014. The legislation creating Religious Freedom acts in the other states this year never made it out of their legislatures for the same reason.
Once more, Republicans and conservatives are in a no win situation.
If they pass such laws, they will be beat up even more as bigots and fools. Never mind that the original Federal act on which such recent legislation was based was passed unanimously by the House, by 97 to 3 votes in the Senate, and was signed into law by Bill Clinton or that it was co-sponsored by such well known champions of the Religious Right as Chuck Schumer and Ted Kennedy.
The rationale behind caving is that Governor Brewer had no choice given the pressure she was under, not the least from fellow Republicans terrified of the horrendous political fall-out the bill’s passage threatened to bring. The problem, however, with this “Pick your battles!” argument is that if you surrender on enough of the small fights, you eventually paint yourself into a logical and legal corner on the big ones.
What do I mean by this?
I think it’s only a matter of time before the U.S. Supreme Court yields to both such political pressure and the shifts in public opinion, largely manufactured by the purveyors of popular culture. (Did you see this years Grammy’s, with the Moonie-style mass wedding of 33 couples, many of them same-sex? That sure changed my thinking on the subject! What does it matter that no other culture in history has thought to recognize gay marriage, even the ones like Greece and Rome which were much more tolerant of homosexuality than our own. If it was good enough for Macklemore, I’m down with it!)
And without the protection of the principles behind the RFRA, anyone acting on the minority, religious based, view of traditional marriage will be subject to a variety of legal sanctions.
What is to prevent a gay activist from now quietly joining a conservative evangelical church and then demanding to be married in that church by its minister? (You might ask why anyone would want to join a church where they wouldn’t feel welcome. Because the whole debate has been mostly about publicity and political symbolism. Because the campaign for gay marriage is more about removing the social stigma of being gay and forcing people to accept homosexuality and less about extending the actual right to marry, with all the benefits and burdens the institution of marriage conveys, to same sex couples.
What percentage of gay adults are married in the Scandinavian countries where gay marriage has long been permitted? Three percent? Seven percent? How many people in the sizable gay and lesbian communities in New York City and San Francisco have taken advantage of recent changes in New York state and California law to get married? If there was really this pent-up demand that has been created by a cruel and repressive hetero society, why aren’t the figures higher?)
Since a clergyman is an agent of the state—he has to sign the marriage license creating the legal relationship of marriage under state law—isn’t he subject to state regulation? If he refuses to perform a gay marriage isn’t he discriminating against people based on their sexual preference such that he would be subject to civil rights laws? Could his refusal subject himself or his church to civil liability by those damaged by such a refusal? Could such a church put its tax exempt status at risk under policies adopted by the IRS for political reasons? (I know the idea that the IRS acts based on the ideology of whatever party is in power is totally far-fetched but bear with me for the sake of argument.)
The other thing to consider in the current fight over the RFRA is that conservatives and Republicans will still get beat up on this issue even though they give up quietly without a fight.
For example, the Kansas bill did not even make it out of committee but there has been a constant drum beat of editorials, opinion pieces, and letters to the editor about how deeply shaming it is to us as a state that we would even consider such legislation. No mention, of course, of the 18 other states that have passed similar laws with bi-partisan support.
That was then, this is now.
The other infuriating aspect to the debate is the glaring double standard. Society must defer to the religious sensitivity of Indian peyote users, even if that means legislatively overturning a Supreme Court decision by an act of Congress. By contrast, the beliefs of Christian evangelicals in traditional marriage are not only disregarded but are ridiculed for even being raised.
I have paid a considerable price personally for questioning the need for legislation that really was gay-bashing: the petty, mean-spirited, Kansas proposal to prohibit gays from adopting. (See my 8-16-13 post, “Up on Brownback Mountain.”) I want my gay friends and family members to live without fear and harassment. If they choose to enter into a committed, loving relationship with another person, I am more than willing to honor that. All that I ask is that the same tolerance be extended in return.
The right to be left alone in one’s beliefs extends to everyone, from drag queen RuPaul to Phil Robertson of Duck Dynasty.