Of course, neither the First Amendment nor the Religious Freedom Restoration Act gives a person blanket immunity to do whatever he wants by claiming it’s part of his religion. Let’s recall the 1990 Supreme Court ruling whose backlash helped to bring RFRA into being.
The case of Employment Division v. Smith involved Alfred Smith, a member of the Klamath tribe in Oregon, who was fired for ingesting the hallucinogenic drug peyote, even though he told his employer that his consumption of it was part of a tribal ritual. In what might be a black mark against an otherwise stellar judicial record, Justice Antonin Scalia wrote an overly broad decision in the case, decreeing that “the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”
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| Justice Antonin Scalia (Credit: acus.gov) |
Congressional efforts to patch this loophole failed, and in 1999 states began to take up the issue with legislation of their own. So what happened between Clinton’s signing of the bipartisan bill and now? How did we reach the point where what was a universally held principle a mere two decades ago has now became a rallying cry for demagogues?
Why is the current White House calling RFRA laws “unthinkable,” even though as a state senator in 1998, Barack Obama voted for the Illinois version of RFRA, which passed the state senate 56-0? Why are other politicians imposing boycotts? Why are corporations buckling to pressure groups that invoke the ugly history of Jim Crow and the murderous Holocaust when speaking about religious freedom laws? Supposedly the answer is cake and pictures. To be more precise, wedding caterers and wedding photographers who cite their religious beliefs when opting against working at gay weddings. For this reason, they have been targeted and sometimes smeared. In one case, a pizzeria—that will almost certainly never be asked to cater any wedding—was harassed into closing its doors. A bakery in Oregon was ordered to pay a $135,000 fine.
The owners of another bakery in Colorado were compared to Nazis in a formal government hearing. The real answer to what is behind the change in views about religious liberty is a network of well-financed progressive groups whipping up controversy.
Matt Welch, editor of the libertarian magazine Reason that supports same-sex marriage, identifies the problem: “The bad news, for those of us on the suddenly victorious side of the gay marriage debate, is that too many people are acting like sore winners, not merely content with the revolutionary step of removing state discrimination against same-sex couples in the legal recognition of marriage, but seeking to use state power to punish anyone who refuses to lend their business services to wedding ceremonies they find objectionable.”
“That’s not persuasion, that’s force, and force tends to be the anti-persuasion among those who are on the receiving end of it.”
Most recently, the Indiana and Arkansas versions of RFRA were mischaracterized to stir fear among a public that too often only hears those who are shouting the loudest. National Action Network president and MSNBC host Al Sharpton said, “This is a key moment for the country. Too often in our history, we’ve seen religion used to justify attacks on other people’s rights, from slavery, to Jim Crow, to women’s right to vote … That same fight is with us today. And we can’t let it stand”.
Aside from insulting those who suffered under Jim Crow, Sharpton is making an illogical comparison. Jim Crow was the name given to Democrat-imposed state laws that required, among other things, that businesses segregate their public accommodations.
In other words: big government regulation. No doubt in that era some restaurants and hotel owners would have chosen to discriminate without the state laws. But they would have had competitors who would have been glad to get the business the discriminators refused.
Thus, Jim Crow laws shielded bigoted business owners from competition. Jim Crow laws were not only racist, but anti-market and anti-capitalist. No wonder Democrats loved Jim Crow politics so much. Southern streetcar businesses opposed forced segregation, because it required them to spend more money on cars and conductors. They routinely ignored the laws until conductors were arrested and the business owners fined by regulatory agencies.
The Wall Street Journal’s William McGurn explains, “In 1964, when the Supreme Court upheld the Civil Rights Act’s requirement that hotels serve African-Americans, blacks, especially in the South, effectively had their ability to travel restricted by the possibility they couldn’t secure lodging. In contrast, no one today suggests gay couples can’t find a baker or photographer for their weddings.”
To the contrary, it’s almost certain that if one wedding photographer, caterer, or for that matter, pizza delivery man, didn’t want the business of a gay couple, a nearby competing business would almost certainly be happy to take the couple’s money. Nevertheless, today we see an intense parade of calculated hyperventilating. On the frontlines of hyperventilation is the organization that, at least in name, would seem inclined to defend religious liberty.
The American Civil Liberties Union ought to know better. In fact, in 1993 the ACLU actually joined a coalition that included the National Association of Evangelicals, the Southern Baptist Ethics Religious Liberty Commission, Americans United for the Separation of Church and State, and others to support the federal RFRA.
Contrast that with today, when the ACLU attacks Midwesterners who wanted the same kind of law for Indiana. “The Indiana legislature and the governor made a terrible and dangerous mistake, and they were met with widespread condemnation and a backlash that has hurt their state’s reputation and its economy,” the ACLU said in a statement.
The group added, “Religious freedom is important, but it doesn’t give anyone the right to impose their beliefs on others, discriminate, or cause harm.” And yet, any honest evaluation of what has happened in recent months clearly shows only one side has tried to “impose their beliefs on others.”
Under pressure, Indiana made changes to the religious freedom law so as not to allow religious beliefs as a defense in a civil rights lawsuit. Even these amendments did not appease the mob. The ACLU statement continued to say the law “still poses a risk that it can be used to deny rights to others, including in education, access to health care, and other aspects of people’s lives.”
To avoid the headaches that Indiana endured, Arkansas Gov. Asa Hutchinson (R) told the state legislature to re-do the religious freedom bill that it had already passed. The ACLU called for improving the law, but it seems unlikely any changes would please the organization. “While we are grateful that Governor Hutchinson listened to the loud outcry in opposition to HB 1228, this new proposal falls far short of ensuring that this law cannot be used to discriminate against or harm anyone within our state,” said Rita Sklar, executive director of the Arkansas ACLU. “I encourage the legislature and the governor to work together to improve this proposal now.”
The ACLU and other left-wing groups were able to successfully torpedo a religious freedom law in Arizona, where Gov. Jan Brewer (R) vetoed the measure last year, after businesses in the state became fearful. Meanwhile, Georgia’s proposal didn’t make it through the 2015 session. In 2012, North Dakota voters turned down a religious freedom law after heavy spending by Planned Parenthood, the pro-abortion group NARAL, and the state’s ACLU.
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