The Crossroads at a Crossroads
The State of Indiana recently passed a new law, called the Religious Freedom Restoration Act, which is similar to laws in other states. These laws are commonly abbreviated RFRA (pronounced riff-ra) and are not unusual in American life. The difference is that Indiana’s law, as we understand it, takes the language a bit further by pushing religious freedom decisions into the sphere of the marketplace, and there is no state law that bars discrimination based on religion, race, or sexual orientation. Most people believe the Indiana RFRA law is designed to discriminate against gay people.
Jamie’s View
If I understand the Indiana law correctly, and I may not because I am not a lawyer, it means that a person can refuse to serve someone because of the individual’s religious convictions. This means that a Muslim greeting card owner has the right to not sell me a box of birthday cards because I eat bacon. Likewise it means that a Pentecostal purist who owns a butcher shop can refuse to sell meat to someone who drinks wine. It means a Baptist who owns the sandwich shop can refuse to serve the ham and cheese sandwich to the Episcopalian who practices infant baptism.
You see where this falls apart? If we allow the person who is working in the public sphere of commerce and trade to use religious persuasion as an excuse to not serve someone, then we are de facto creating a world where anyone can refuse to serve anyone else. It is the ultimate, perhaps, slippery slope toward social chaos.
At face value, the Indiana RFRA law makes no sense, destroys community relationships, rejects Jesus’ call to serve the whole world, and only adds fuel to the fires of misunderstanding between Evangelicals and secular world.
More troubling, perhaps, is the wrapping of the issue of homosexuality with religious liberty. Religious liberty actually should move in the other direction. Liberty means people are free to choose how to live their personal life without the public judgment and oppression of society. The Indiana RFRA law does exactly that—it takes personal choices and opens them up to public scrutiny. I understand that people are against gay marriage, that it is unsettling, and I’m not really a big fan of it either, but even more, I cannot support discrimination. I have said and written many times before that the burden of freedom means people should be able to live their lives as they choose, and I have the freedom to say and teach what I think about it, but I don’t have the right to restrict others in their pursuit of life, liberty, the pursuit of happiness, and buying a cake. The Indiana law is discrimination and has absolutely nothing to do with religious freedom.
Once upon a time it was Baptists who championed individual choice, liberty, and freedom.
David’s View
As a nation, we begin by declaring that “all men are created equal.” We now practically read it “all men are created equal, except negroes.” When the Know-Nothings get control, it will read “all men are created equal, except negroes, and foreigners, and Catholics.” When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty-to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.—Abraham Lincoln
I have been keeping my eye on this recently, primarily because Arkansas is getting ready to pass such a bill (and they will). Essentially, Jamie and I see eye to eye on this issue, as we do with many others (after all, this is not a debate blog, but one exploring historical Baptist perspectives). The Indiana bill suggests that a “person” can avoid engaging in behaviors or commerce with others, if that behavior or commerce would substantially violate their own religious freedom. In short, I don’t like this trend at all, on either political or religious grounds. Here are a few of my concerns.
1) Unfortunately, Section 7 of Chapter 9 of the bill defines a “person” as one of the following: “(1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.”
Thus, an organization, no matter how complex, is also considered a “person” for the purposes of this legislation. This is not the first time this problem has come up. The United States Supreme Court ruled recently that, regarding campaign finance reform, organizations (corporations) are equivalent to persons, and money is equivalent to free speech. Thus, corporations giving obscene sums of money to political candidates are simply exercising their right to free speech in supporting the candidates with whom they agree. Yet, those same corporations are giving the same obscene amount to each candidate on the ballot even when those candidates express opposing views on the issues relevant to the corporation. This is not protecting the exercise of free speech, but protecting their ability to buy access by giving corrupting amounts of money to whomever might win the office. This is the same issue I have with this bill. Businesses and corporations are not individuals or private enterprises. They are profiting from doing business in the public sphere. Thus, they have a responsibility to the public good. Undoubtedly, the “public” will include those whose lifestyles and practices I might find personally offensive, and in a free society, we cannot discriminate which of the public we will serve. I thought we had already dealt with this issue when we got rid of signs such as these:
2) While I might disagree or even take offense at someone’s lifestyle, I fail to see how selling them a product, serving them a piece of pizza, or having them as a student in my class would be a violation of religious freedom. This level of social intercourse does not require that I adopt their lifestyle or approve of it—and this is where the problem lies. We have equated “tolerance” and “approval.” In a free society, people have a right to “be” who they are as long as they are not infringing on the rights of others to “be” who they are. If I do business with someone whose lifestyle I might disagree with, this does not infringe on my right to be what I have already chosen to be—a businessman. If we are to remain a free society, we are required to tolerate those who make difference choices (yes, even those one might believe are morally reprehensible), but we do not require that others approve of those choices. Too many among us seem to believe that being civil and tolerant is indicative of moral approval, and those are two conceptually distinct ideas. It’s very telling that when the Baptists were being persecuted in Virginia for preaching without a license by a religious majority who were offended by their theology and lifestyle, it was Thomas Jefferson who joined with them. This unlikely partnership resulted in The Virginia Statutes on Religious Freedom. Why was this an unlikely partnership? Because Thomas Jefferson could not have disagreed more with them regarding the substance of their religious choices, yet he was willing to fight for their right to choose and discuss their beliefs in the public square.
3) As a Christian (and a Baptist), I cannot see how associating with those whose lifestyles I might disagree would violate my religious freedom or make me any less of a faithful believer. First, normal, social commerce with someone whose lifestyle is contrary to my Christian beliefs is not indicative of my joining that lifestyle any more than it indicates they have converted to Christianity. I serve a Messiah who was chided for continually associating with tax-gatherers and sinners. This same Messiah prayed on behalf of those who were unjustly executing him. Second, if I were a Muslim waiter and afraid that serving bacon to a patron would violate my religious freedom, that is a choice that should have been made when I decided to accept a job at a restaurant that served pork products.
As a result, not only do I find this type of legislating troubling from a political perspective, I find it morally outrageous as a follower of Jesus Christ.
The Underground Baptist 
Since my friend Jamie is not a lawyer, and since I am (as he knows too well), I’ll step in for a few remarks here. Hello to Professor Caddell too. Pleased to meet you and learn of this thing you have going here with Pastor Greenbean. You both have me beat in Baptist history, by the way, but I’m just going to be lawyerly now.
This passage I quoted from you, Jamie, is actually an incorrect summary of the RFRA laws, including Indiana’s. The key mistake here is in saying that the law grants anyone the right to refuse service. The law does not. What the law does is say that government may not restrict religious freedom without a compelling governmental interest and without furthering that interest by the least restrictive means. The two prongs of that test (interest and means) are crucial. For starters, though, from the private person’s perspective, no one is free to act in violation or possible violation of law: what they are now “freed” to do is to use RFRA as a defense or claim in order to get relief from a court granting them whatever freedom they may wish.
A lot of folk have been making predictions. In fact, this whole brouhaha is about hypothetical evils rather than anything that has actually happened ever. Although I think predictions have been done in a fairly mendacious way by the press and by activists, let me offer my own prediction. No one would ever prevail under RFRA to deny a homosexual couple service at a restaurant, or, to use your example, to deny an Episcopalian a ham-and-cheese at a sandwich shop. Why? you ask. Because going all the way back to the common law that long preceded the Civil Rights Act and a whole lot of other American legislation, the right to be served by the innkeeper (to use some nice common law language) has been recognized, and the duty of one who provides a public accommodation to provide it to all has beet recognized and settled law as well. In fact, the Civil Rights Act in no small measure codified what had been recognized for a good long while, and one can understand why the statute was desired, given how atrociously blacks were treated in public accommodations, not to mention a good many other real and present evils they endured. But who is turning Episcopalians away from the sandwich shop or homosexual couples from the diner? No one, and I tell you they would not be able to do so and get away with it in a court of law, because the government has a compelling interest in making public accommodations available to all, and simply requiring the owner of the business to serve everyone who lawfully comes into his restaurant seems pretty clearly the least restrictive means of accomplishing it.
I’ve said elsewhere that I don’t think this Indiana RFRA is going to be some kind of slam dunk for wedding florists or photographers who do not want to participate in same-sex weddings, but we can also, regardless of whether any florist or photographer could prevail in Indiana’s courts, recognize that there is a difference. In a typical restaurant, one serves what is on the menu the same to everyone who comes in. A hotel offers the same rooms. And so forth. A photographer or a florist, besides being asked to take part to some degree in the ceremony, offers a more specialized service. I am a member of a profession, and I have some freedom to turn down clients whom I find “repugnant” (I’m quoting that word right out of Ohio’s Professional Conduct Rules, by the way) for no reason other than their repugnance to me. I think my services, however boilerplate practicing law can become, are specialized enough that it’s fair for my fellow members of the Bar and me to have some degree of this freedom. I surely don’t think a florist’s work is as specialized as a lawyer’s (allow me some pride in my work), but is the task of preparing a specific arrangement for a specific occasion, suited to the particular needs and wishes of the patrons, requested of a florist for a wedding that the florist find’s repugnant: is that not more specialized that just having a bunch of flowers on the shelf that anyone has a right to come into the store and buy?
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thanks for reading and commenting on the legal aspects of things virgil. you are a gentleman and a scholar. i can see the distinctions you point out, and your belief in bulk of the law to protect against such discrimination. having ceded that point, do you think that the law was written in good faith to protect religious liberty, or do you think it was put forward as a means for discrimination? because using the florist question, i think there is a difference between a florist (non religious, no legal) and say a minister refusing to do the ceremony on religious grounds or a lawyer refusing a client who is repugnant and whom he or she doesn’t believe in. if the florist offers the service to the general public, then no law should allow the florist any wiggle room in no providing it to everyone.
again, thanks for commenting—you are definitely my favorite lawyer.
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Thanks, Jamie. Let me go ahead and answer the two questions here. Please forgive the further verbosity that shall now follow.
I don’t think any reasonable and honest person can deny that Indiana’s RFRA is timed too closely to recent developments for it to have been made without same-sex marriage in mind as well as private businesses not wanting to cater to it. Whether the intent is discrimination will vary, but, to be fair to the integrity of most except for the most fringe supporters or advocates, I will say I hope that no one has any invidious discrimination in mind in wanting this law. The timing also should not make the matter too suspect. Just because I think the language is kind of elegant, as perhaps is the meaning, let me quote an old Supreme Court case:
Weems v. United States, 217 U.S. 349, 373 (U.S. 1910). The legislators in Indiana were no doubt at least in part inspired by recent events, but those are not the only events or potential events to be concerned with. I suspect that they are also, by and large, worried about further restrictions that persons may find placed upon them as the tide of same-sex marriage rolls on. Keep in mind too that these RFRA laws (which, it seems, do not actually wind up getting litigated a huge amount) do address many other matters. We all know about American Indian practices that were to be protected at the beginning of the RFRA regime. There have been Amish who did not want to put fluorescent signs on their buggies, which led to a juridical compromise under RFRA where an alternative signage was made available to them (the state, in other words, had a compelling interest in road safety, but fluorescent signs was not the least restrictive means, so to one degree or another the Amish prevailed under RFRA). And also people lose under RFRA or lose because they don’t have it, like the Jehovah’s Witness who could not get a bloodless liver transplant, when her state required her to get a transplant that included a blood transfusion: she had no recourse to RFRA to allow her the chance to receive a transplant without a blood transfusion, and she died. RFRA can actually do good things.
And indeed, just as I think that a florist is no lawyer, I think that a florist is no minister either, and I think that ministerial privileges are much narrower than … floral ones. As I said, I’m not so sure florists or photographers would win under RFRA anyway, but I am also in favor of allowing them the chance. Their work for weddings, especially ones they must attend, is still narrower than that of just an ordinary shop patrons walk into and buy what they want off the shelf, even if these businesses are not professionals like ministers or attorneys. This indicates also a point about graciousness and bitterness. The advocates of same-sex marriage are getting precisely what they advocated for. They are not now faced with people being turned away from lunch counters or given separate toilets. They are faced with a small fraction of conscientious objectors, and, instead of heading down the street to one of the many florists or photographers who will offer their specialized work without objection, they’d rather sue. I myself have no problem with allowing those who are sued a reasonable argument to make in their defense in court, rather than simply having their businesses sued into oblivion by those who can’t just win this thing graciously and without punishing every last bit of opposition.
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