On June 26, the Supreme Court by 5 to 4 struck down all state-level bans on same-sex marriage. Since then, a poll found that 19 percent of Americans believe “religious institutions or clergy should be required to perform same-sex marriages.” The survey was conducted by the Barna Group, which studies attitudes toward religion in America. That percentage may seem small, but it means one in five Americans have no problem with the government violating the first freedom of the First Amendment. That number increases to more than a quarter—26 percent—among Americans under the age of 40, who believe churches and pastors should be forced to perform gay marriage ceremonies. (TheBlaze, July 1, 2015)
Reasonable people can disagree on the issue of gay marriage as a public policy, but what should not be questioned are the basic First Amendment principles of the country, rights that were reinforced by the Religious Freedom Restoration Act, passed in 1993 by a Democratic administration and Congress.
The majority and dissenting opinions in the same-sex marriage case, Obergefell v. Hodges, addressed the matter of religious freedom. Even President Barack Obama made passing reference to this fundamental liberty when he praised the ruling in the Rose Garden: “All of us who welcome today’s news should be mindful of that fact; recognize different viewpoints; revere our deep commitment to religious freedom.”
For the court’s majority, Justice Anthony Kennedy wrote:
It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.
It’s good to know Kennedy still thinks Americans have the right to hold private religious views. Yet Chief Justice John Roberts responded that many difficult issues remain:
“Respect for sincere religious conviction has led voters and legislators in every state that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. … Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.”
Now congressional Republicans are considering taking action to protect the First Amendment right to practice religion, not only for clergy and their congregations, but for private businesses as well.
Another Supreme Court decision, this one in 1990, prompted lawmakers on both sides of the aisle to fear it would be too sweeping. Fierce left-winger Ted Kennedy (D-Mass.) sponsored a Senate version to complement the House bill of another hard-left Democrat, then-Rep. Charles Schumer (D-N.Y.), whom no one ever accused of being a right-wing theocrat. The bill passed almost unanimously through the House and Senate, and it was happily signed by another Democrat, President Bill Clinton.
Again, Schumer and Kennedy weren’t any kind of right-wingers. But neither are the 21 state laws that were modeled after the federal Religious Freedom Restoration Act (RFRA) that Kennedy, Schumer, and Clinton made into law. The legislation was so non-controversial in its time that President Bill Clinton remarked on the bipartisanship consensus on the issue when signing the bill into law, “The power of God is such that even in the legislative process miracles can happen.”
But just this past year, after a journalist hounded a mom-and-pop pizza shop in Walkerton, Indiana, that state’s version of RFRA sparked a national controversy that even the National Collegiate Athletic Association (NCAA) felt obliged to join. Charles Schumer, now a U.S. senator and apparently hoping everyone would forget his 1993 actions, tweeted: “@NCAA if you’re looking for a new place to hold 2021 #FinalFour – NY has plenty of great venues that don’t discriminate.”
No Blanket Immunity
Of course, neither the First Amendment nor RFRA 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).’” In other words, because the law applied to everyone regardless of religious faith, it was deemed constitutional.
RFRA essentially provided the courts with better guidance. The law shifted the burden to the government to prove (1) that it has a “compelling interest” in restricting whatever practice of religion is at issue and (2) that it has used “the least restrictive means of furthering that compelling governmental interest.”
In the 1997 case of City of Boerne v. Flores, the Supreme Court determined that the federal RFRA law does not protect citizens from religious freedom infringement by state and local governments. Congressional efforts to patch this loophole failed, and in 1999 states began to take up the issue with legislation of their own (Citizen Link, Dec. 18, 2012).
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” (Daily Caller, March 30, 2015).
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 (National Review, April 2, 2015).
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 (LifeNews.com, June 13, 2012).
Pizza and Consequences
Step beyond the politics and big money and you will see real-life consequences of the Left’s bullying tactics. Crystal O’Connor, owner of Memories Pizza in Walkerton, Indiana, was not someone who championed the state RFRA law or who was even a vocal traditional marriage advocate. Until a TV reporter walked into her business, she likely never thought it affected her, but she nevertheless answered his loaded questions. She wasn’t prepared for what would happen next.
“If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no.… We are a Christian establishment,” said O’Connor, adding that the pizza place would continue serving all gay or non-Christian customers who walked in. “We’re not discriminating against anyone. That’s just our belief and anyone has the right to believe in anything.”
Social media and Internet sites were quickly burning up. One tweet read, “Who’s going to Walkerton, IN to burn down #memoriespizza w[ith] me?” Others incorrectly said the pizza shop discriminates against gay customers (Reason, April 2, 2015). Then state Sen. Jim Arnold, a Democrat who represents Walkerton in the state legislature, swooped in.
“The vast majority of people in this country are not going to stand by and watch that kind of activity unfold,” he told ABC 57 News of South Bend, regarding the O’Connor family. “If that’s their stand I hope they enjoy eating their pizza because I don’t think anyone else is going to.” ABC 57 News paraphrased Arnold as saying, “This kind of thinking has no place in this town.”
Arnold’s behavior was quite alarming to Reason’s Welch—again, a writer who supports same-sex marriage as policy but does not like bully tactics, particularly from someone in the government. Welch wrote: “This kind of thinking has no place in this town is—what’s the word?—totalitarian. Sen. Arnold is explicitly ganging up with ‘the vast majority’ against someone guilty of thought crime.… A virtual mob, acting at least partly on bogus information, gleefully trashed a business that hasn’t (to my knowledge) discriminated against a flea. After which a local pol stood up and yelled ‘Encore!’”
No matter. The lynch mob prevailed. The O’Connor family closed down Memories Pizza temporarily after threats of violence continued, and said they probably would not re-open. Kevin O’Connor told the Los Angeles Times, “I’m just a little guy who had a little business that I probably don’t have anymore.”
The Wall Street Journal’s McGurn pointed out, “Back when gay marriage was first proposed, advocates pitched it this way: What can it possibly matter to you if two men or two women wed?” He continued: “Since then Americans have learned: It can mean an end to your small business, it can mean your church institutions—from schools to adoption agencies—can no longer run themselves according to their principles, and, if you are a Silicon Valley CEO, it can mean you lose your job.”
McGurn was referring to Mozilla co-founder and CEO Brendan Eich, who was forced from his job in 2014 for having donated to the 2008 campaign in California to recognize marriage as exclusively between one man and one woman.
Gay journalist Andrew Sullivan wrote of the pizza controversy, “The whole episode disgusts me—as it should disgust anyone interested in a tolerant and diverse society. If this is the gay rights movement today—hounding our opponents with a fanaticism more like the religious right than anyone else—then count me out. If we are about intimidating the free speech of others, we are no better than the anti-gay bullies who came before us” (The Dish, April 3, 2014).
Government hysteria about the Indiana law began from the top down, as the White House sounded off in April. “I do think in the mind of the president, the thought that we would have state legislatures in the 21st century in the United States of America passing laws that would use religion to try to justify discriminating against people for who they love is unthinkable,” said White House press secretary Josh Earnest.
The presumptive Democratic presidential nominee in waiting, Hillary Clinton, also weighed in on Twitter: “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against [people because] of who they love #LGBT.”
Pointing out that Hillary opposed gay marriage until 2013, the Atlantic’s Conor Friedersdorf wrote, “she declares Indiana out of step with the times for making gay weddings legal, because refusing to bake cakes for them may be legal, too.”
Washington Gov. Jay Inslee (D) and Connecticut Gov. Dan Malloy (D) both announced they would ban publicly funded travel to the state of Indiana. San Francisco Mayor Edwin M. Lee (D) and Seattle Mayor Ed Murray (D) also banned city employees from traveling to Indiana for work-related trips.
In higher education, San Francisco State University banned work-related travel to Indiana. And even in Indiana, the presidents of the three major universities—Indiana, Depaw, and Butler—issued statements denouncing the law as discriminatory and harmful to the state’s reputation.
Friedersdorf expressed concern about the mob, prefacing his April 1 post with his view that bans on gay marriage in 13 states are “callous.” Nevertheless, he added, “When 13 states prohibit gay-marriage outright, what sense does it make for gay-rights supporters to boycott a different state where gay marriage is legal?”
“Being barred from marriage puts a significant burden on gay couples—a burden many orders of magnitude greater than the relatively small possibility of being refused by an atypically religious photographer or baker in the course of planning a same-sex wedding (the outcome the law’s opponents assert to be its true purpose).”
“Now that those who would discriminate against gays are a powerless cultural minority that focuses its objectionable behavior in a tiny niche of the economy, elites have suddenly decided that using state power to punish them is a moral imperative,” Friedersdorf continued.
“The timing suggests that this has as much to do with opportunism, tribalism, humanity’s love of bandwagons, and political positioning as it does with advancing gay rights, which have advanced thanks to persuasion, not coercion.”
But that’s just it. Gay marriage isn’t really the issue. For the Left, nothing is ever worthwhile until it’s connected to coercion. That’s why a vast collection of progressive organizations, many bankrolled by billionaire financier George Soros, joined to pile on Indiana and other religious freedom advocates. None of the political or corporate response would have come without progressive groups stirring up alarm.
Americans United for the Separation of Church and State—which, you’ll recall, actually backed the 1993 federal RFRA—warned of the dangers of RFRA today:
“The U.S. Constitution already provides substantial protections for religious freedom, and Indiana has done just fine since a federal court declared in 1997 that the federal RFRA does not apply to the states,” the group said in a press release after Gov. Mike Pence signed the Indiana law. “And given that Indiana’s ban on same-sex marriage was recently struck down, it can only be assumed that lawmakers wanted to create special protections for anyone who has a problem with LGBT persons—as long as the basis for that animosity is ‘sincere religious belief.’”
(Speaking of animosity, this warning comes from a group whose original name was “Protestants and Others United for Separation of Church and State”—no Irish need apply.)
Media Matters for America (MMfA) attacked the Indiana law as a creation of Fox News, the cable TV network that MMfA chief David Brock has vowed to destroy:
“Fox News has been at the forefront of defending Indiana’s controversial ‘religious freedom’ law, falsely portraying the measure as harmless and whitewashing the anti-LGBT extremism that motivated the legislation,” said a Media Matters post. “…The emergence of a national push for expanded state RFRA laws hasn’t occurred in a vacuum—it’s happened in the context of a steady drumbeat of fear mongering by conservative media, led by Fox News, over the plight of anti-gay business owners.”
The Media Matters post went on to denounce Fox host Megyn Kelly for having as a guest “anti-gay hate group leader Tony Perkins” to talk about the law. Perkins is, in fact, not a hate group leader, but the president of the Family Research Council. Admittedly, Media Matters is more often than not a parody of itself (see “Media Matters for the Left: David Brock’s mission to boost Hillary Clinton and smear non-leftist sources of news and commentary,” by Matthew Vadum, Organization Trends, December 2014). But progressive groups that are taken seriously by the public have also taken up the banner against religious freedom.
For example, the nation’s most prominent liberal think tank, the Center for American Progress, offers a bizarre spin. The director of CAP’s Faith and Progressive Policy Initiative, Sally Steenland, provided an analysis that was, at best, woefully misinformed, and at worst, deliberately misleading. She called the state RFRA laws an outgrowth of the Supreme Court’s ruling in Hobby Lobby, a 2014 decision which said closely held businesses had religious liberty rights.
“I would argue that religious freedom belongs to all Americans. Unfortunately, the Supreme Court said something quite different in its Hobby Lobby ruling last June. In a 5-4 decision, the Court basically said that the religious beliefs of Hobby Lobby’s corporate owners not only deserve legal recognition but also trump the religious beliefs and health needs of the company’s employees,” Steenland wrote.
“However, both the company’s owners and a majority of the Supreme Court justices failed to acknowledge the fact that many—if not the majority—of Hobby Lobby’s employees most likely hold different religious beliefs than the owners, therefore supporting and using the types of contraception that their bosses find immoral.”
Steenland was implying, as many have, that Hobby Lobby was preventing their employees from using contraception. That’s nonsense. The lawsuit only dealt with whether Obamacare allows the federal government to force companies to subsidize contraception, including drugs that cause abortions, for their employees, if doing so would violates the owners’ religious beliefs. Hobby Lobby never asked employees whether they use contraception; in fact, they company willingly subsidized the use of contraceptives that do not cause abortion.
But that was too much for Steenland: “I’d call that an abuse of religious freedom,” she wrote. “We all have the right to believe and practice our faith, but we do not have the right to coerce others to follow our beliefs or the right to cause others harm. That’s where limits come in. All freedoms in a democracy have limits.”
Steenland’s audacity in accusing the other side of coercion is rich. One would almost expect better from the CAP, considering its lofty perch in progressive politics.
That’s not so much the case with People for the American Way (PfAW), a longtime fringe organization that attacked the Indian law by declaring, “Hobby Lobby Comes Home to Roost as States Consider ‘Religious Freedom’ Legislation.” That was the headline of a Huffington Post op-ed by Elliot Mincberg, senior fellow for PfAW, who was actually involved in lobbying for the 1993 federal religious freedom law. He pointed out that so many states are considering these laws now.
“Why the huge uptick now? As one of those involved in the original drafting and passage of RFRA in 1993, I think it’s a combination of the perceived dangers to the far right from the move towards LGBT marriage equality and the perceived opportunity created just last year by the 5-4 Supreme Court’s rewriting of RFRA in Burwell v. Hobby Lobby,” Mincberg wrote.
“So for far-right activists and legislators concerned about LGBT marriage equality and other rights, Hobby Lobby provided the perfect opportunity: pass state RFRA laws and effectively grant a religious exemption claim from LGBT anti-discrimination laws and local ordinances, based on the court’s re-writing of RFRA’s language,” he continued.
The assertion that a state religious freedom law is somehow an “excuse” for a state legislature to pass laws protecting business owners ignores the fact that sincerely held religious beliefs are being crushed under the despotic boot of government. Religious freedom laws are not a solution in search of a problem. They’re a response to a clear and present danger.
In late April, Oregon Administrative Law Judge Alan McCullough ordered Aaron and Melissa Klein, owners of Sweet Cakes by Melissa bakery in Portland to pay $135,000 in damages to a gay couple for emotional suffering caused by the bakery’s not catering their wedding (Christian Science Monitor, April 28, 2015).
In New Mexico, the case of Elane Photography v. Willock began when a lesbian couple asked to have their commitment ceremony photographed. When Elane Photography declined, the couple made a complaint to the New Mexico Human Rights Commission. New Mexico has a RFRA law, but the Human Rights Commission refused to apply it to a business in the state, so litigation ensued.
During a Colorado Civil Rights Commission meeting on Masterpiece Cakeshop owner Jack Phillips’s decision to refuse to bake a wedding cake, commissioner Diann Rice said, “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust … we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use … their religion to hurt others.” The commission went so far as to order “reeducation” as a potential remedy.
That was too much for Richard Epstein, a New York University law professor who supports same-sex marriage: “The Colorado Commission made the grotesque and inexcusable comparison of the refusal to do business in a highly competitive market with the mass extermination of helpless individuals in government gas chambers,” wrote Epstein.
“Commissioner Rice’s insistence that Cakemasters has used its religion to ‘hurt others’ means that anyone who turns a person down for business ‘hurts’ that person. Her formulation shows no appreciation whatsoever for the relative harms involved in these low-level commercial interactions. Craig [the plaintiff suing Cakemasters] has dozens of alternative outlets clamoring for his business. Phillips and Elane Photography don’t have that luxury; they are now put to the impossible choice of closing down or violating their religious beliefs.”
When Indiana lawmakers sought to prevent these types of things from happening in their state, they faced a full frontal assault by the Left and weak-kneed corporations that increasingly tend to buckle to left-wing pressure groups.
For example, NASCAR put out a statement saying, “We are committed to diversity and inclusion within our sport and therefore will continue to welcome all competitors and fans at our events in the state of Indiana and anywhere else we race.”
Gap Inc. said in a blog post, “These new laws and legislation, that allow people and businesses to deny service to people based on their sexual orientation, turn back the clock on equality and foster a culture of intolerance.” Of course, denying service is not what the laws did, but never let reality get in the way of a good mob.
Marriott CEO Arne Sorenson similarly said, “The legislation in Indiana—and there are some bills being considered in other states—is just pure idiocy from a business perspective.” Michael McHale, director of corporate communications for Subaru of America, Inc., which is opening a plant in Indiana, said, “While we recognize that the voters in each state elect their own legislature to decide that State’s laws, we at Subaru do not agree with any legislation that allows for discrimination, or any behavior or act that promotes any form of discrimination.”
Angie’s List CEO Bill Oesterle said the company would call off its scheduled expansion into Indianapolis. Apple CEO Tim Cook was “deeply disappointed” in Indiana, while Yelp threatened a boycott (Think Progress, March 27, 2015). Arkansas-based Walmart CEO Doug McMillan warned against the Arkansas religious freedom legislation.
The corporate giants are concerned about the public relations aspect of this dispute, and they have an obligation to shareholders to mollify any budding controversies. At the same time, these firms should consider the impact that liberal bandwagons could have on their own companies in the future.
For that matter, these progressive groups should consider that their capacity to speak out on matters they care about is protected by the same Constitution that protects the rights of other Americans which they are so eager to undermine.
Barbara Joanna Lucas is a resident of Virginia and blogs at The Sharp Bite (TheSharpBite.Blogspot.com).