Indiana enacted a state version of a federal law written by Ted Kennedy and signed by Bill Clinton, and liberals would have you believe it reincarnated a version of apartheid in the Hoosier state. And that’s just one of the conundrums associated with this story.
The federal Religious Freedom Restoration Act allows religious liberty as a defense in litigation involving the government. The Indiana law goes a little further, like some other state versions, by saying this defense can be raised in private litigation as well. Naturally, liberals see this as a license to indiscriminately discriminate.
The crux of the matter, which has gripped America for a fortnight now, is, believe it or not, the catering logistics of gay weddings. The central question seems to be whether or not a Christian baker whose religious beliefs don’t allow him to countenance such an event, ought to be forced — by threat of litigation — to provide a wedding cake for the ceremony.
For a long while, proponents of gay marriage advocated for their position by appealing to a sense of “live and let live,” arguing, not entirely unpersuasively, that gay marriage needn’t impact anyone beyond those directly affected. “If you don’t like gay marriage, don’t have one” went the mantra.
The movement now appears to have taken a departure from that approach. Rather than allowing the baker — or florist or hypothetical pizza maker — to remain unaffected, the trend now is to sue him if he chooses to remain unaffected. Ergo, the push for a defense in the form of the RFRA and state versions thereof.
To be sure, there are issues to be had with the RFRA. As Andrew McCarthy asserts, the acid test of the act — requiring the state to prove a law a defendant claims imposes a burden on his free exercise of religion serves a compelling interest — places such decisions in the hands of the court rather than in a legislative body. I share McCarthy’s unease with more power vested in the judiciary.
It’s also instructive to recall the provenance of the law — and why the likes of Ted Kennedy, Chuck Schumer and Bill Clinton were eager to support it. It was developed in response to a Scalia-written decision in Employment Division v. Smith, where Smith was fired from his job — as a drug rehabilitation counselor, bear that in mind — for having ingested a powerful hallucinogenic drug as part of a native ritual. Smith said he ought to receive a religious exception from state drug laws. Justice Scalia said, sorry, no. Red Ted and Schumer (both of whose re-election, one hypothesizes, relied heavily on drug use among constituents) took up the cause and wrote the RFRA in response.
Given the vitriol emanating from liberal corners over the Indiana version of the same law, it seems safe to assume that it’s fine when applied to radicals, the equivalent of the Nuremburg laws when applied to Christians.
The problem, of course, is in the scope of applicability. As Scalia pointed out in Smith, if everyone can determine the laws of society impinge on their religion, then you are soon left with a sort of anarchy. Sure enough, as McCarthy, a former Assistant U.S. Attorney who prosecuted the 1993 World Trade Center bombers, also pointed out, Islamist jihadists have tried using the law to justify their acts on religious grounds.
Nevertheless, it’s clear some form of protection is needed, assuming, with resigned sadness, common sense alone won’t serve as a guide. Because according to the enraged, hate-filled critics, Indiana’s new law would allow businesses to discriminate against gays, simply by not punishing those that choose not to sell their wares in conjunction with a gay wedding.
Under this legal environment, does a business retain the right to decide with whom to do business? Are those signs “we reserve the right to deny service” now lawsuit fodder? Should a Jewish business, for instance, be required by force of law to cater to a Holocaust denier’s event? Should EarthJustice be compelled to represent Exxon?
The Indiana law doesn’t permit harm to be done to gay people, nor does it vouchsafe any limitations of their rights or movement. It simply doesn’t allow the law to force people to associate themselves with activities with which they’d rather not associate themselves.
For those still filled with hate over the Indiana law and others like it, consider this: What if the baker in question had refused instead to participate in an event at Westboro Baptist Church?