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Religious Freedom or Religious Folley?


Religious Freedom or Religious Folley?

            The Editor-in-Chief

The Religious Freedom Restoration Act passed by Congress in the 1990’s is a law that places the burden upon the government to prove that restricting someone’s freedom to practice his or her religion is necessary for the public’s protection. Under that act, a person can fight the government in court if that person believes that the government violated his or her religious rights. When the law was passed in 1993, it was meant to preserve the rights of Native Americans to continue using land that they deemed sacred for religious ceremonies, such as burials, despite government efforts to use such lands for public projects. It also protected the rights of Native Americans to use peyote in some of their rituals, despite peyote being a substance banned from use by the government. Its most relevant provision asserted that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” meaning that a federal law does not need to be aimed at a particular group and can apply to the general population, but if it “substantially burdened a person’s exercise of religion” it can be set aside for that person or group. Only in cases of “compelling government interest” can the RFRA be overruled. However, it only applies to federal laws, which is why twenty states have their own versions of the law.

Now, both Indiana and Arkansas have enacted their versions of the RFRA, causing an unprecedented furor among both LBGT anti-discrimination advocates and many private businesses. Initially, defenders of the new state laws claimed that there was no difference between their states’ laws and the federal law, which had been sponsored by Democrat Chuck Schumer and passed by President Bill Clinton with strong bipartisan support (including support by then-state senator Barack Obama). Opponents within the two states cited the motivation behind the passage of these new state laws, which they claimed was the desire of conservative religious groups to find a legal reason to discriminate against gays and lesbians. They also pointed to the fact that the laws concerned the religious rights of businesses, rather than individuals, as in the federal law, and that they allowed use of the law in defense against lawsuits by private individuals, not just the government, as the federal law stipulates.

Both sides in the debate were being disingenuous. While it is true that conservative religious groups were the main supporters of these new RFRA laws, it is not true that the federal law only applies to the religious freedoms of individuals. The Supreme Court’s Hobby Lobby decision, which was about the federal RFRA made it clear that closely-held private businesses have the same religious rights as individuals with regard to the federal law. The Indiana and Arkansas laws simply reflected that decision. But that did not make the Indiana and Arkansas laws carbon copies of the federal law.  The federal RFRA still cannot be invoked except in the case of a government regulation restricting the religious rights of either a person or a private corporation, while the state laws allowed them to be used against a lawsuit brought by an individual or private group. This remained a difference between the federal and these two states’ RFRA statutes and it is an important one, since it meant that businesses which assert their right to refuse service to someone on the basis of religious freedom need not fear that that person can bring a civil lawsuit against them.

The United States prides itself on being a pluralistic society with regard to religion. Our founding fathers were particularly sensitive to the interference of the government in religious matters. We have no state-sponsored religion and all religions are equally protected under our laws and our constitution. The RFRA is part of the fabric of laws that protect our religious freedom. In France, it is illegal for school girls to wear headscarves to school, because that is a sign of affirmation of the Muslim faith, which many Frenchmen feel creates an unhealthy division within their society. No such law could be passed in the United States. Even if it were argued that having unique clothing styles among different religious groups undermines national solidarity and erodes social capital, the RFRA would not allow such laws as were passed in France to be put in place in the United States. Neither can Jews be forced to remove their kippahs or Amish to shave their beards. So before urging the government to throw out the RFRA, we need to think about the reasons it’s there.

On the other hand, a new wave of “religious freedom” seems to be sweeping across parts of the United States. Indiana and Arkansas passed their own versions of the RFRA, which extended the law in states in which gay, lesbian, bisexual and transgender individuals are not included in anti-discrimination laws—states such as Indiana and Arkansas.  Fourteen other states have had similar legislation introduced to be voted on during the next year. By itself, this is not new and can even be applauded. The Supreme Court ruled that the federal law does not apply to states, so each state must pass its own law in order to have the same protection for religious freedoms ensconced in the federal statute. Twenty states have already done so. But taking a cue from the Supreme Court’s Hobby Lobby decision, Indiana and Arkansas are now including private businesses as well as individuals in terms of the definition of “persons” practicing their religions. In addition, in these two states the new laws allow the state’s RFRA law to be used as a defense in a legal suit by an individual, rather than in a defense against a government entity, which has violated a person’s religious freedom. This last difference, which is found elsewhere only in the Texas RFRA,  further raised peoples’ fears that the law could be used to defend discriminatory practices in business (note that at the time of this writing, Governors of both states were seeking to change the laws to make them less able to be used to discriminate against anyone).

Governors in both Indiana and Arkansas, aware of the backlash their proposed laws created across the nation and within their own states’ business communities, demanded that anti-discrimination guarantees be added to their RFRA statutes. While this is not “too little, too late,” as some have claimed, that the governors had to defy their own state legislatures to force such alterations in their laws is an indictment  against the mindset of conservative religious groups.

Although discrimination against a person on the basis of his or her religion was one of the main reasons anti-discrimination laws were developed in the United States, with the gradual liberalization of attitudes toward race and sexuality, some religiously minded people have come to feel that having to accept legitimization of practices to which they feel their religious beliefs are opposed, has become a violation of their religious freedom. This has included, at first, such things as integration of the races, then interracial marriage and now contraception, abortion, and same sex marriage.

Given that there are some people who disapprove of same sex marriage, or of the use of contraception or of abortion on the basis of their religious beliefs, it certainly seems valid that no one, either the government or their fellow citizens, has the right to force them to accept such practices for themselves (it is not clear what this could even mean with regard to same sex marriage). But what about in the public sphere? Does their religious freedom extend to how we treat people in our business dealings? According to the Supreme Court it does.

But isn’t observing one’s religion a personal behavior? Even if it involves observing holidays not observed by the majority of citizens, or restricting one’s eating habits, or dressing  or speaking in a certain way (some Quakers still say “thee” and “thy”), these behaviors seem more personal than refusing to serve someone else, or providing her some types of healthcare. When does observing one’s religion slide over into imposing that religion’s  values upon someone else? Sure, there are always other places to work, or to buy wedding cakes or flowers, but that argument begs the question. And the question is—when does observing one’s religious beliefs in one’s business practices become discrimination?

In the case of the Hobby Lobby decision, although it is clearly an instance in which personal religious beliefs are being allowed to determine how a business owner treats his or her employees, there appears to be no case for claiming discrimination. Not providing contraception in a health care plan applies equally to everyone and is not a decision made on the basis of characteristics of the employee (except perhaps that it applies to women not to men, but then that’s true of lots of medical services. Medicare does not pay for medications to treat erectile dysfunction, but that’s not discriminatory against men even though the rule applies to men only.) But in the case of providing services to someone whose personal behaviors violate one’s religious beliefs, e.g. gays or lesbians, this certainly appears to be discriminatory because the same services are being provided to others.

So something is wrong. In what sense can providing a service to someone else—a service that one feels perfectly fine providing to others—compromise one’s religious rights? In what sense can refusing to provide that service to someone on the basis of his or her sexual orientation not be discrimination pure and simple? In fact it is discrimination and no one’s religious rights are being compromised by providing such services. The real reason for enacting such a law as Indiana first enacted and Arkansas almost enacted, was to send a message about conservative religious groups’ disapproval of gay, lesbian and bisexual behavior, including marriage. That’s a message that was already quite apparent. What these groups wanted to add was punishment to those in the LBGT community who want to be open about their sexual preferences and practices. The message now was “If you’re LBGT and you want to live in our community, you are going to live uncomfortably.” In other words, you’re not welcome here.

Is this the kind of message that religion teaches us to send to our fellow Americans?

References (2)

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  • Response
    That definitely would seem valid of which nobody, both the costa rica government or even the man residents, has the to pressure these phones acknowledge such techniques intended for by themselves. The particular Indiana as well as Illinois legislation simply resembled of which decision.
  • Response
    Religious freedom is the most important topic of the twenty first century. In some countries it is under threat sponsored by government restrictions. In USA religious freedom is protected by act and people willingness of tolerance.

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