Late last month, Indiana Gov. Mike Pence signed a controversial religious freedom bill into law. Though in many ways the law paralleled federal and other state Religious Freedom Restoration Acts (RFRA), the way in which it differed caused a firestorm of objections about discrimination toward LGBT citizens. In the face of companies threatening to pull business from the state, the law was amended. So now what? In contemporary America, are RFRAs necessary for religious freedom?
Religious Freedom Jurisprudence
In order to understand this controversy, we have to go back to the last 80 years of religious freedom jurisprudence in the United States. For most of the 20th century, the First Amendment freedom of religion clause was interpreted to protect faith-based acts of individuals and nonprofits, such as charities, churches and schools.
Religious freedom is not absolute, though. Imagine if a person said, “It is my religion to sacrifice your child.” We would not protect this action. So, to balance religious freedom with other needs, such as the safety of a community, the Supreme Court developed something called the compelling interest test. If a law was passed that in some way limited the religious act of others, the government would have to prove two things in order to keep the law. There would have to be a compelling reason for such a law. And, the law would have to be the least restrictivealternative toward achieving the compelling government interest.
This test has been applied over and over to protect people of faith from government attempts to control how they raise or educate their children, how they worship and so forth.
In 1990, however, the Supreme Court made a change to the test. When analyzing an Oregon case in which unemployment funds were withheld from Native Americans who had been fired for ingesting peyote, the court set aside the compelling interest test and held for the government. The law had said that if someone was fired "for cause," like using drugs, the person could not receive unemployment compensation. Native Americans said this law punished them for their religious beliefs, which required ingesting the drug peyote. Thus, they argued, the law violated the First Amendment. The court disagreed. Since the law did not target a religion and was generally applicable, it was neutral toward religion. The holding of this case was that a “neutral law of general applicability” would be valid, even without using the high bar of the compelling interest test.
Does a state have a compelling interest to tell a faith-based business that it must serve all people regardless of sexual identity?
When this happened there was a national outcry. People worried about all kinds of different neutral laws that would curtail religion - housing law, zoning law, employment law, and consumer protection law. So, those who supported compelling interest turned to legislation to restore it. In 1993, the federal Religious Freedom Restoration Act was passed, restoring the compelling interest test for laws that curtail religious belief or action. Some states followed with their own versions. There were a lot of twists and turns along the way, but as of now the Supreme Court sometimes goes back to using the compelling interest test whether or not RFRA is involved. So, RFRAs are now only part of the picture when it comes to religious freedom. At this point, whether or not a state has its own RFRA, we still have complications and challenges related to things like consumer protection (preventing discrimination against customers).
Right now in many states it is legal for Christian bakers to refuse to bake a cake for a same-sex wedding or for a Christian doctor to decline a patient because of the patient’s sexual identity. But, in states that have consumer protection laws saying businesses may not decline customers for reasons related to race, gender or sexual identity, this is illegal. Whether or not a state has a RFRA, the constitutionality of consumer protection law is going to be tested. Should the compelling interest test apply? Does a state have a compelling interest to tell a faith-based business that it must serve all people regardless of sexual identity? These are questions that the Supreme Court will have to answer as a number of cases involving doctors, bakers, photographers and florists wind their way through lower courts.
Pluralism and Majorities
Some Christians look at this whole issue and say, “You want to protect the rights of LGBT citizens. What about our rights? What about our right to live according to our own beliefs?” Well, that is an important question and it relates to what we think the role of government ought to be.
When people think about government, we can focus on either a majority viewpoint or a pluralism perspective. A majority view says that if our view is in the majority we should control public policy and things should go our way. A pluralism view says that government should not be about promoting one way of being, but should protect a pluralism of institutions and perspectives in the public square.
People in the Reformed tradition have a long history promoting political pluralism. Going back to Abraham Kuyper, the Dutch theologian and prime minister, Reformed Christians have said that as a matter of justice, governments must protect a plurality of institutions and must also protect a plurality of worldviews that shape those institutions. Sadly, over the last decades many Christians have not applied this pluralism in advocacy for the rights of LGBT citizens. Historically, a conservative approach was in the majority and a majoritarian approach was taken in regard to marriage and families. So, it isn’t surprising that LGBT Americans and allies are not interested in a pluralism that would protect the minority voices of Christians, especially those who do not want to serve LGBT customers. When they represented a minority voice, LGBT citizens were the “losers.” Now that they may have majority approval, those in the LGBT community want to be the winners.
This is complicated and it is difficult. Can there be a compromise?
I do think there is a way forward, but it involves humility on the part of Christians. Pluralism has its roots in a Biblical perspective and it is the only approach that allows people of different views to live together in peace. But if we advocate for pluralism, we have to start with pluralism for others before ourselves. Christians who want room in the public square for conservative Christian perspectives have to begin by talking about what it means to do justice to LGBT citizens regarding issues like employment and consumer protection. The next years are going to bring more confusion than light as legislation and legal decisions are debated. If we want to participate in shaping culture, we have to demonstrate that our concern for justice is not about “just us.” This is the only way to further the discussion.