The New IntolerancePosted: March 31, 2015
Indiana isn’t targeting gays. Liberals are targeting religion
In the increasingly bitter battle between religious liberty and the liberal political agenda, religion is losing. Witness the media and political wrath raining down upon Indiana because the state dared to pass an allegedly anti-gay Religious Freedom Restoration Act. The question fair-minded Americans should ask before casting the first stone is who is really being intolerant.
The Indiana law is a version of the federal Religious Freedom Restoration Act (RFRA) that passed 97-3 in the Senate and that Bill Clinton signed in 1993. Both the federal and Indiana laws require courts to administer a balancing test when reviewing cases that implicate the free exercise of religion.
“The paradox is that even as America has become more tolerant of gays, many activists and liberals have become ever-more intolerant of anyone who might hold more traditional cultural or religious views.”
To wit: Individuals must show that their religious liberty has been “substantially burdened,” and the government must demonstrate its actions represent the least restrictive means to achieve a “compelling” state interest. Indiana’s law adds a provision that offers a potential religious defense in private disputes, but then four federal appellate circuits have also interpreted the federal statute to apply to private disputes.
“Part of the new liberal intolerance is rooted in the identity politics that dominates today’s Democratic Party. That’s the only way to explain the born-again opportunism of Hillary Clinton, who tweeted: ‘Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love.'”
The federal RFRA followed the Supreme Court’s Employment Division v. Smith ruling in 1990 that abandoned its 30-year precedent of reviewing religious liberty cases under strict scrutiny. Congress responded with RFRA, which merely reasserted longstanding First Amendment protections.
“By that standard, Mrs. Clinton discriminated against gays because she opposed gay marriage until March 2013. But now she wants to be seen as leading the new culture war against the intolerant right whose views she recently held.”
In 1997 the Supreme Court limited RFRA’s scope to federal actions. So 19 states including such cultural backwaters as Connecticut, Rhode Island and Illinois followed with copy-cat legislation, and Indiana is the 20th. Courts in 11 states have extended equally vigorous protections.
Indiana was an outlier before the new law because neither its laws nor courts unambiguously protected religious liberty. Amish horse-drawn buggies could be required to abide by local traffic regulations. Churches could be prohibited from feeding the homeless under local sanitation codes. The state Attorney General even ruled Indiana Wesleyan University, a Christian college which hires on the basis of religion, ineligible for state workforce training grants.
In February, 16 prominent First Amendment scholars, some of whom support same-sex marriage, backed Indiana’s legislation. “General protection for religious liberty is important precisely because it is impossible to legislate in advance for all the ways in which government might burden the free exercise of religion,” they explained.
That hasn’t stopped the cultural great and good from claiming Indiana added the religious defense in private disputes as a way to target gays. If this is Indiana’s purpose, and there’s no evidence it is, this is unlikely to work….(read more)
- Liberals against Religious Liberty in Indiana (stream.org)
- The True Facts About Religious Freedom Laws (dailysignal.com)
- Indiana Law: Bill Clinton, Ted Kennedy and the law it was modeled after. (theminorityreportblog.com)
- Remember when Bill Clinton signed the Religious Freedom Restoration Act in 1993? (fireandreamitchell.com)
- Liberals do a 180 on religious freedom bills now that they are being used to protect conservatives (rare.us)
- Professor: Indiana religious freedom law doesn’t legalize discrimination (thecollegefix.com)
- State Religious Freedom Restoration Acts (‘RFRAs’): What Are They And Why Are They Needed? (libertyalliance.com)
- Artificial lemons (patheos.com)