Should We Support Total Religious Freedom?

Do you think Indiana should pass a law specifically stating that people can use their religious convictions as a defense for their actions in a court of law? Here’s the description of the bill that is currently before the Indiana State House (https://iga.in.gov/legislative/2015/bills/senate/101):

Religious freedom restoration. Prohibits a governmental entity from substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the governmental entity can demonstrate that the burden: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering the compelling governmental interest. Provides a procedure for remedying a violation. Specifies that the religious freedom law applies to the implementation or application of a law regardless of whether the state or any other governmental entity or official is a party to a proceeding implementing or applying the law.

Basically, it states that (1) the government cannot (without good reason) create a substantial burden for a person who wishes to express their religious convictions, and (2) should any legal action be taken against a person who is expressing their religious convictions, the person will have the force of law protecting their right to such expression.

Don’t we already have religious freedom?

On the surface, you might think that it’s an unnecessary law because the government already provides protection for religious freedom. After all, the First Amendment of the US Constitution gives us that protection.
However, as a matter of fact, laws that have been subsequently enacted have limited the exercise of religious freedom. Here are a couple examples:

• As an employee in the state of Indiana, you can’t refuse to do part of your job because of religious convictions. If your boss tells you you need to do something, and you refuse to do so even because of religious convictions, your boss can (and probably will) fire you, but because you have been fired with cause, you will likely be ineligible for unemployment benefits.
• If you are a landlord, even if you believe that other religions are wrong, you are not allowed to refuse rental to someone because they claim to be a different religion than you.

However, there are some ways where we would agree that limiting religious freedom has been a good thing. For example:

• As a business owner in the state of Indiana, even if you believe that white people are superior to other races, you are not allowed to give a “white person discount” for your services. (I don’t agree with this practice, but it’s a fact that some religions actually teach the superiority of white people. <sadface> )

Now, I have read the text of the bill before the Indiana State House of Representatives, and my assessment is that it would actually change the state’s legal perspective on all three of the above scenarios by providing legal protection for those who would want to exercise their religious convictions. Furthermore, it would require the legislature to re-evaluate all other laws on discrimination in light of this new law.
That is, if the government wanted to shore up the laws against racial discrimination, it would either need to modify the current laws on racial discrimination to demonstrate a compelling reason why racial non-discrimination trumps religious freedom, or it could simply leave it up to the courts to sort out the priorities if anyone actually is taken to court for this.

The New Face of Discrimination

Many years ago, people used the religious freedom argument to support their ownership of slaves. Though I totally disagree with all of their reasoning on the topic, the facts are the facts that they used their religious freedom to oppose Lincoln’s Emancipation Proclamation.
Years later, people used the religious freedom argument to support the discrimination against women and the discrimination against racial minorities. Though I disagree with their religious reasoning on this topic, the facts are the facts that they used their religious freedom to oppose Women’s Suffrage, Women’s Liberation, and the Civil Rights Movement.
In both cases, laws were enacted that restricted the expression of religious freedom for the greater good of treating all people like people. Ironically, the principles of equality for all humans are found originally in the teaching of Jesus, but the government had to establish these laws in the face of people who opposed them on religious grounds.
We are now at the cusp of a new kind of discrimination conversation and it centers around gender identity and sexual orientation. Questions exist today that have never been addressed before in our society:

• Should businesses be allowed to discriminate against people who are biologically male but self-identify as female by telling them which bathroom to use?
• Should school teachers be allowed to use feminine pronouns for a young girl who believes she is a boy?
• Should business owners be allowed to discriminate against people who are doing things their convictions oppose (eg. baking a wedding cake for a gay wedding)?
• Should restaurants be allowed to refuse service to flamboyantly dressed transvestites because of the religious convictions of the management?
• Should store owners be allowed to refuse providing health insurance that covers abortive procedures?

Regardless of how you feel about the individual questions listed above, the overall issue raised by SB-101 is this:

Which societal issues are so important to that society that we should sacrifice religious freedom for them?

So far, our society has effectively ignored the question of religious convictions in addressing the kinds of discrimination that’s been going on. There were enough people who saw through the weak religious arguments in favor of slavery, racial discrimination, and the suppression of women that laws were passed to simply ignore the religious opponents and establish what’s right.
However, we are now at a point in time in our society where the religious arguments in favor of certain forms of discrimination are much more compelling. A Christian businessman should probably have the right to refuse to provide health care that pays for abortions. A church should probably have the right to refuse renting its facility if it doesn’t agree with how the facility will be used. A business should probably have the right to determine how its bathrooms are used.
What this new bill attempts to do is to bring the religious question back to the surface. Effectively, the bill returns religious freedom to its place as the top priority and then puts all these other issues below it. This bill simply changes the burden of proof when it comes to the laws against discrimination and says to future government, “Any law that might infringe on a religious conviction must provide a compelling reason for the limitations of that freedom, and any judge who hears a case related to religious freedom must do the same.”

A Good Step Backwards

You might say this bill sounds like a step backwards, and I think it is in some ways. According to the text of the bill (and again, I did read the entire bill) certain forms of discrimination will become legal again at least in theory. In theory, a person could have a belief that white people are better and therefore give favorable treatment to them. Of course, I doubt a judge hearing that argument will accept the “religious freedom” defense in that case, and I also expect the Indiana legislature will quickly rewrite the other laws regarding discrimination to account for the new language of religious freedom and to re-prioritize those laws in relationship to religious freedom.
Effectively, if SB-101 passes, Indiana will be a state that says, “Religious freedom in general comes first unless there’s a compelling reason to specifically limit it.”
And that too, would be a step backwards in a very good way.
You see, the Bill of Rights starts with Religious Freedom:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first line of the first item in the Bill of Rights establishes the freedom of religion.
All other laws must take it into account.
SB-101, the bill before the Indiana State Legislature, says exactly that: If you want to make a law that infringes on a person’s religious freedom, you need to make a very good case for it.
I’m not advocating a return to slavery, racial discrimination, or the suppression of women, but I am eager to live in a society that keeps the question of religious freedom up front.

What do you think?

I’d love to hear your comments on this, but I’d also encourage you to share your comments with your representative in the State Legislature. To find your representative, just CLICK HERE.