Religious Liberty and the Secular, Irrational Elite Collide in Indiana

COMMENTARY: What Indiana’s latest legislation means — and what it doesn’t.

(photo: Shutterstock)

The quotation marks say it all. The Indianapolis Star describes the Indiana Religious Freedom Restoration Act (RFRA), which was recently signed into law by Gov. Mike Pence, as a “religious freedom” bill. Why the quotes?

The reason the scare quotes are there — and the Star is not the only media company that has decided to describe the law in this way — is because of a deep misunderstanding about what this law does and why it is important.

Almost 20 other states have similar laws. They are all modeled on a federal law of the same name, which was passed with overwhelming bipartisan support in Congress and endorsed by such entities like the American Civil Liberties Union. RFRA was signed into law by President Bill Clinton in 1993.

Indeed, it was considered unremarkable at the time that religious freedom would be a widespread, bipartisan concern. The federal RFRA was passed in light of a Supreme Court decision that would not permit religious groups to challenge laws of “general applicability,” even if such laws burdened the practice of their religion.

The federal RFRA was a good example of the traditional consensus about religious belief in the United States. Americans generally believed that people should be given the opportunity to explain to a court that a particular law placed a burden on their religious practice.

RFRA law serves two purposes: First, it gives religious persons an opportunity to have their concerns heard. Second, it forces government to consider broadly worded laws that might have a disparate impact on religious exercise and to think of alternatives to achieve the same policy goals.

And RFRA has worked. In the 22 years since its passage, the federal RFRA and its state counterparts have allowed religious persons to prevail against laws that discriminated against them without furthering a legitimate government objective, including Muslim prisoners, American-Indian tribes and Sikh women. It has not been used — as critics now charge — as an agent of bigotry.

The Indiana RFRA is closely modeled on the federal law. It provides that a religious person or entity can challenge a law on the basis that it “substantially burdens” that person’s or entity’s religious practice. If a court determines that religious exercise is in fact “substantially burdened,” the court may still rule in the government’s favor if the government demonstrates the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling interest.

RFRA, in other words, supplies a classic balancing test of interests. It forces the burdened party to explain its burden, which the court must then balance against the interest the government asserts and the means in which the government seeks to achieve that interest.

Catholics have seen this play out in the cases challenging the contraceptive mandate from the Department of Health and Human Services.

Many courts have found that the government’s interest in promoting its view of health or equality is compelling, but its means — a discriminatory “mandate” with lots of carve-outs and exceptions — was not the least restrictive means of furthering that interest.

Unfortunately, since the passage of the federal RFRA, and the other state laws, the understanding of religious liberty has shrunk and is now being attacked on multiple fronts. And now, the Indiana law has caused what commentator Michael Brendan Dougherty has called a “national freak-out.” 

Which brings us back to those scare quotes. It is a sign that, in the minds of the elite, religious liberty means bigotry and discrimination. Members of this elite are largely secular and simply cannot conceive of religious faith as being anything other than an excuse for bigotry.

The fact that the law itself allows no such thing, or that such laws have not caused an outbreak of religious oppression, does not matter to these opponents. Nor does the fact that RFRA has actually helped the powerless resist government encroachment on their faith.

The disregard for these actual, historical facts in favor of ideological fury that anyone could want to act in accordance with faith — and mean by it no hatred — is perhaps the most worrisome part of this controversy.

The opposition to the Indiana law has been almost exclusively motivated by elite corporations and the media, who have over the last two decades sought to reduce religious freedom to simple “freedom to worship,” that is, to treat “religion” only as what happens in a church, synagogue or other house of worship. Anything that religious people do outside of religious services can be regulated and restricted in the name of a rigid secularism.

How this controversy will affect the Supreme Court as it considers the same-sex “marriage” case is not clear. However, some members of the high court appear to believe that religious liberty is simply one freedom among many and one that can be overcome by some other secular value.

Rather than a balancing test, Chief Justice John Roberts and Co. may decide that there is no reason other than bigotry to assert religious liberty, which is ahistorical and not consistent with how the RFRA laws have worked in practice.

The Founders placed religious freedom in a special category because they knew — and RFRA affirms — that religious belief gives life meaning and that many people and government should not interfere, except in the most clear-cut cases, with people’s exercise of their religious beliefs. Religious persons should be very concerned over the opposition to the Indiana RFRA, for all it means about the future of religious liberty.

 

Gerald J. Russello is the editor of The University Bookman (KirkCenter.org).

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