The Unbearable Lightness of Religious Freedom

Indiana Governor, Mike Pence, a reliable conservative
according to the American Conservative Union, which gave
him a 100% rating in 2012.

A couple of days ago Indiana Governor, Mike Pence, signed the controversial "Religious Freedom Restoration Act." Indiana now joins nineteen other states that have passed similar laws. Reactions have been swift--from the NCAA's "concern" to threats by cities and corporations to boycott the state because of the implications regarding LGBT rights. The law does not mention homosexuality, or any terms invoking LGBT issues, and Governor Pence insists that the law is not about permitting discrimination but rather the prohibition of state laws and rules that force people, organizations, and corporations to violate their religious beliefs. It is aimed at the Affordable Care Act, not a category of people. As he stated in a press release after the signing the law (in private, curiously):

One need look no further than the recent litigation concerning the Affordable Care Act. A private business and our own University of Notre Dame had to file lawsuits challenging provisions that required them to offer insurance coverage in violation of their religious views.

Joe Carter of the Gospel Coalition, an orthodox Christian evangelical organization, provides a useful summary of similar legislation and related Supreme Court decisions, and argues that the Indiana law is not "anti-gay." Like Governor Pence, he relies on Notre Dame--a consistent source of conservative Catholic views on social issues (so ecumenical of the evangelicals!)--to argue that the Religious Freedom Restoration Act does not give anyone a 'license to discriminate.'"  Carter goes on to blame "the media" for hysterically misrepresenting the law.

But even the irascible Janet Brewer, governor of Arizona, vetoed similar legislation a month ago because of its anti-LGBT implications (see The Atlantic's excellent analysis of that veto here).  No matter how much Governor Pence and his allies might poo-poo the discriminatory aspects of the Religious Freedom Restoration Act, the law's supporters acknowledge that it's a about allowing Hoosiers to discriminate against LGBTers based on religious beliefs. As reported by The Blaze, Glenn Beck's online right-leaning news site:

Conservative groups say the Indiana measure merely seeks to prevent the government from compelling people to provide such things as catering or photography for same-sex weddings or other activities they find objectionable on religious grounds.

Sad how that word "merely" blithely dismisses a significant minority population, denying it the 14th Amendment's "equal protection" clause.

But an Indiana University law professor says not to worry, noting that

courts generally have ruled that the government has a compelling interest in preventing discrimination and that this interest precludes the recognition of religious exceptions. Even in the narrow setting of wedding-service providers, claims for religious exemptions recently have been rejected in various states, including states that have adopted the RFRA test. A court could rule otherwise, protecting religious freedom in this distinctive context. But to date, none has.

"Generally?" "Various?" Hardly an overwhelming put-down of the Indiana law--though the last line provides some comfort for those of us who don't think of members of the LGBT community as second-class citizens (see here for a map of state level LGBT policies).

Mildred and Richard Loving, 1965, denied equal protection
under the law until the landmark Supreme Court decision
Loving vs. Virginia in 1967.

Mark Silk, editor and blogger for the Religious News Service, is more certain of the ultimate outcome. He cites the Supreme Court's 1967 Loving vs. Virginia decision striking down laws banning mixed race marriages and notes a 2014 federal appellate court's declaration that Indiana's ban on same-sex marriage is unconstitutional. As with mixed race couples, the judicial message to states is that same-sex unions are protected by the 14th Amendment's guarantee of equal protection under the law. That is, photographers, caterers, wedding planners, won't get to deny services to same-sex couples on religious grounds.

If the Supreme Court doesn't end discrimination against the LGBT population in the US, time will. As revealed in a recent survey by the Public Religion Research Institute (PRRI), the generational cohort we label millennials, those between 18 and 35 years of age, perceive homosexuality (and presumably all the gradations between homosexuality and heterosexuality) differently than white evangelicals. 55% of millennials say that homosexuality is "morally acceptable/depends on the situation" while 38% declare it "morally wrong," compared to 20% of white evangelicals who accept homosexuality with 78% finding it morally wrong.

Robert Jones, CEO of PRRI, sums up the findings on issues of homosexuality and other sexual morals in this way:

Millennials seem reluctant to make blanket black-and-white moral pronouncements about issues they see as complex,” said Jones. 

They don’t only make legal allowances for circumstances, they also make moral allowances for people in difficult circumstances. It’s more about empathy than it is about autonomy.

Ah, complexity and situational ethics--both anathema to religious fundamentalists. But in a couple of decades, the millennial generation will be climbing into positions of decision-making power vacated by the aging or dead baby-boomers.  Or as the Religious News Services puts it:

...the influence of white evangelicals on public opinion in the future may be muted by their small — and aging — numbers. White evangelicals are the oldest of the major religious affiliations, with 49 percent of them age 50 and older.

And this principled stand by many (certainly not a principle shared by all) white evangelicals, their argument that they are entitled to discriminate against the LGBT population, is not winning many converts among the millennial generation.  According to a Pew survey, 16% of the US population is religiously unaffiliated, and about a third of the unaffiliated are under the age of 30. And as Robert Putnam and David Campbell observed in their magisterial work, American Grace: How Religion Divides and Unites Us:

In the 1960s religious observance plummeted. Then, in the 1970s and 1980s a conservative reaction produced the rise of evangelicalism and the Religious Right. Since the 1990s, however, young people, turned off by that linkage between faith and conservative politics, have abandoned organized religion entirely. The result: growing polarization.

Abandoned church, Detroit, 2013

Well, at least this time we don't have the spectacle of governors blocking schoolhouse doors to gays, or shouting "Homophobia now, homophobia tomorrow, homophobia forever!"  Still, no matter how innocuous the legal language, a law that sanctifies the unequal treatment of a category of people in the name of freedom is not only unjust, but mangles the meaning of freedom. To paraphrase an old saying, one's freedom to swing a bible ends just where another's nose begins.