Monday, April 27, 2015
The Chicken or the Egg? Or, Whose Rights Come First?
One of the most-talked about topics in recent weeks is the State of Indiana's Religious Freedom Restoration Act and the reaction to it from across the country. Friends, this is a minefield and we need to proceed very carefully and precisely, lest we let the emotional issues (the mines) blow up in our faces, as we try to focus on the Constitutional issues at hand. It's a tough path to navigate, as emotions inevitably bubble up in these kinds of topics.
Full disclosure: I am Catholic and as we proceed through this blog, I'll be referencing Catholic theology where theology needs to be discussed or illustrated. Not because I think Catholic theology is the "most correct" (though, of course, I do think so, otherwise, why would I be Catholic, right?) but merely because that's the theology I'm most familiar with, having taught Catholic religious education for over a decade. Further disclosure: I have friends and family who are gay, some of whom are married, in accordance with the laws of their states, and I love them all and are quite happy for them.
OK, enough with the disclaimers. What are we talking about here? Earlier this year, the Indiana legislature passed, and the governor signed, a Religious Freedom Restoration Act which was modeled after the federal act of nearly two decades ago. The federal act - largely written in response to the Supreme Court's Employment Division vs Smith case - passed both houses of Congress almost unanimously (no "nay" votes in the House and 97-3 in the Senate) and was signed by President Bill Clinton. So why the big deal about Indiana's act, which on the surface seems merely redundant?
The text of the two acts are nearly identical, but "nearly" is the key word. There are a couple very small, but very important distinctions. But before we get into that, let's review the intent of RFRA-type acts. In a nutshell, these types of laws (both federal and in roughly 20 states) codify the principle that the government may not "substantially burden" a person's religious beliefs or practices unless there is a "compelling government interest" in doing so, and in which case, the remedy must be by the least restrictive means possible in order to achieve that compelling interest. To make an extreme example, if your religion includes human sacrifice, well, naturally, the government may feel compelled to step in and put a stop to the practice, but can only restrict your religious practices to the point of stopping the sacrifices, not shutting down your whole "church".
Now to the differences. The first difference is that the Indiana statute explicitly defines that "persons" who are protected under the statute includes corporations that are closely held by individuals or small groups (i.e., families). While the federal RFRA does not state this specifically, it was held by the Supreme Court to be interpreted that way in the Hobby Lobby case, which we discussed here.
The second small, but important difference is that the Indiana statute applies not only to disputes that arise between an individual and the government, which is a clear First Amendment issue, but also applies to disputes between individual citizens, which is not a First Amendment issue.
The first difference is not the most controversial one, as it has been fairly well settled (at least for now) by the Supreme Court, so let's focus on the second one, which seems to be drawing the most controversy. In the most often-cited argument by opponents of the law, they say that this statute could allow a photographer or a florist, for example, to use their strongly-held religious beliefs to legally refuse to participate in a same-sex wedding, in other words, to discriminate against the couple being married. Certainly, none of us here reading this are in any way in favor of discrimination, but here's where it gets tricky from a Constitutional standpoint. Buckle your seat belts...
The relevant part of the First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The second half of that section is the one under debate. While again, we should not, and must not, condone wanton discrimination, if the government can compel someone to participate in an activity that runs counter to a deeply-held religious belief, does that not violate the "free exercise thereof" part? Each of us does not hold the same religious beliefs, if any at all, and the Supreme Court has repeatedly - and wisely, I think - held that they, the Court, do not possess the competence to decide which religious beliefs are "valid" and which are not. There are those I've encountered who think that the Catholic Church is the tool of Satan (yes, really - I've run into those who have said that verbatim), but I do not deny them the right to think that and to publish that belief, even if I find it offensive and hurtful. That's a private individual's opinion, so, like, whatever, right?
Let's take, as example, the teaching of the Catholic Church on marriage and on homosexuality as an illustration of the difficulty that even devout religious people may have with this issue. Paragraph 1625 of the Catechism of the Catholic Church (that's the official teaching document of the Church) states: "The parties to a marriage covenant are a baptized man and woman, free to contract marriage, who freely express their consent." To the devout Catholic, this is clear and unambiguous. Any other arrangement would be considered disordered (that is, not in order with the teaching of the Church). The Church also teaches (in Paragraph 2357) that homosexual acts are "intrinsically disordered", that is, not in order with nature, that is, not open to procreation, which the Church teaches should not be separated from the unitive aspect of sex, thus the teaching against sex outside of marriage. The Church calls all homosexual people (as with all unmarried people) therefore, to a life of chastity. Many people - perhaps most, even - in American society might disagree with some or all of the above, but it doesn't change the fact that the above is without question a strongly-held position of religious belief for some, and to act in a way that violates these precepts does indeed place a substantial burden on their religious beliefs.
But let me muddy the water a little bit (more) for us long-suffering Catholics (yeah, I know, poor us, right?) to further illustrate how difficult this issue is. The Catechism also says this (Paragraph 2358, in part): "The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination...constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided...." My gosh - what's a poor Catholic to do? So, you can see the problem that even a devout person of faith may encounter in trying to satisfy both one's religious faith and one's faith to the Constitution and the law and even sense of fair play.
Back to Indiana. Again, the difference in the Indiana law versus the federal law is that it protects an individual from action by another individual, not just from government action. If a suit is brought by, let's say, a lesbian couple who wanted to contract a particular baker to make a wedding cake for them, and the baker refused on religious grounds, the law protects the baker. The state has no part in the lawsuit (other than, of course, providing the courtroom and judge, but is not a party to the suit). Opponents of the law will say this codifies discrimination, while supporters say it protects religious freedom - yes, even religious beliefs that may not be popular in contemporary society. Which brings me back to the title of this piece: The Chicken or the Egg? Or, Whose Rights Come First? Or the better question might be this: Whose rights are more important? Can we even decide that?
We, in this country, have a number of great traditions. Freedom of religion is one. We have people of all faiths (or no faith at all) living side-by-side, living and letting live (with the rare, extreme instances of deadly cults, which may trigger the whole "compelling government interest" thing). Look at most cities and towns around the country - there are churches and temples and other houses of worship of all sorts of denominations existing within the same city limits. We may find the beliefs of that "other" church silly or even offensive, but we, as the bumper sticker says, "Coexist".
Another great tradition we have, speaking of coexisting, is acceptance of others. You know, "different people." While we have indeed had shameful periods of less-than-charitable attitudes towards people of different backgrounds and behaviors ("Irish need not apply") and even state-sponsored discrimination (slavery, Jim Crow, Black Codes), we steadily evolve away from those behaviors over time. We tolerate (though perhaps through gritted teeth) even those whose beliefs and behaviors seem abhorrent and backward to us and we afford them protections under the Constitution (KKK, American Nazi Party, Westboro Baptist Church).
This issue is by no means a black-and-white one (sorry for the bad Civil Rights pun), but one that really gets to the heart of the Constitution, the law, individual freedoms and rights and just plain polite behavior. I have a feeling we're nowhere near the safe edge of the minefield yet, but I hope here, in this blog, at least, we've not stepped on any.