There has been a great ruckus about Indiana’s recently passed religious freedom law. Some, including Apple CEO Tim Cook, see it as endorsing anti-gay bigotry. Democratic Connecticut Gov. Dan Malloy has banned state employees from traveling to Indiana, even though Connecticut has a similar law even more favorable to claims of religious objectors. Perhaps he should ban state employees from remaining inside Connecticut.
The Indiana law is substantially identical to the Religious Freedom Restoration Act, passed by Congress by a near-unanimous vote in 1993 and signed with brio by Bill Clinton. It was a response to a Supreme Court decision upholding an Oregon drug law against members of the Native American Church who had claimed their religion requires drug use.
RFRA sets up a balancing test, to be employed by courts. Government cannot enforce a statute requiring people to violate their religious convictions unless it can demonstrate a compelling interest in doing so, and proceeds to do so by the least restrictive means possible.
This is in line with longstanding American tradition. The First Amendment, ratified in 1790, guaranteed Americans the “free exercise” of religion. The Framers knew that their new republic included Quakers, Jews, Catholics, Protestants, atheists, even perhaps a few Muslims. They wanted all to be free to live — not just worship, but live — according to their beliefs.
Opponents of the Indiana law point to horrifying hypotheticals. Restaurants won’t serve gays; large corporations won’t hire them, and so on. But mass anti-gay discrimination seems extremely unlikely. What is on the opponents’ minds, apparently, are the cases where gay couples have successfully sued bakeries and florists who refuse to provide services to same-sex weddings. These litigants, they believe, should not lose.
As someone who has publicly supported same-sex marriage longer than President Obama or Hillary Clinton, I would put this in broader perspective.
My observation is that very large majorities of those on both sides of the same-sex marriage issue, and the very large number who have switched from anti- to pro- over the last decade, take the positions they do out of good motives. They believe that their views would be better for individuals, families and society.
Only handfuls base their stand on hatred of gays or hatred of those who believe in traditional or religious concepts of marriage. Most people on both sides want what they think is best for others.
The traditional American recipe for handling such differences is friendly accommodation. The large majority of Americans in the early republic, as today, did not believe in the pacifism of Quakers or the bishops of Episcopalians, the catechism of Catholicism or the rituals of Judaism. But they didn’t begrudge others their beliefs.
An acid test of American religious toleration came during World War II. Congress, at the urging of President Franklin Roosevelt, instituted a military draft in 1940. That law provided, for the first time, for exemption from active military service men who professed a religious conscientious objection to bearing arms.
Most Americans then opposed entry into World War II. They dreaded the hundreds of thousands of American deaths — more than 400,000 as it turned out — that they believed would result. But they and their elected representatives were willing to exempt from military service those who had highly unusual religious beliefs, even though others might die in their places. I should add that many conscientious objectors served as non-combatants at the risk of, and for some the loss of, their lives.
Americans continued to support exemption from military service of conscientious objectors until the military draft ended. It is inconceivable that it would not be part of any future conscription legislation. So strong is American respect for the free exercise of religion that it extends to matters of life and death.
Opponents of the Indiana law liken conscientious refusal to participate in same-sex marriages to racial discrimination. But as many black leaders and citizens will tell you, correctly, no other category of Americans have been subject to anything like slavery and segregation.
Eradicating those drastic evils required drastic legislation, yet even the civil rights laws provide some exemptions. Fair housing laws, for example, don’t cover renting out your basement apartment.
This situation is different. Society has reached a consensus on racial discrimination. It has not reached such a consensus on same-sex marriage.
The traditional American formula for handling such issues is friendly accommodation of the conscientious beliefs of others. Indiana’s RFRA is in line with this. Forcing people to violate their religious beliefs absent a compelling government interest is not.