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.

DOMA's Dead, Long Live....What?

The Leave it to Beaver Cleaver Family

 A few nights ago we had dinner with some of our extended family--a sister-in-law of my two adopted nuyorican children, along with her her half-sister, whose mother is Colombian.  This is just the beginning of a complicated skein of relations and social origins that make up my extended family featuring numerous second (or more) marriages, step and half-siblings, adoptions, mixed couples, and so on.  There is not much "normal" in it, if by "normal" we mean the mythical US family made up of a nuclear couple in its one and only marriage, with two children, all the same race or ethnicity, all straight.  Now, we know that this is not always the typical family, but it is the norm--we can see it in the TV families of the 1950s and 60s (think Leave it to Beaver).  We can see this norm invoked in the non-traditional families that began popping up in the 1970s, ones that were edgy (One Day at a Time), comedic (Brady Bunch), or quaintly cute (The Courtship of Eddy's Father). They were--or tried to be--edgy, comedic, or cute precisely because they were not normal families.

Same-sex couple with two adopted children.
From: http://www.huffingtonpost.com/2013/06/13/
gay-family-photos-project_n_3436299.html

Though less powerful today--this norm still holds a sway over many Americans.  Witness the anger and grief over the Supreme Court's recent rulings dooming the 1996 Defense of Marriage Act (DOMA) and California's Proposition 8.  A narrow majority, 5-4, declared DOMA unconstitutional.  Another 5-4 decision, with a different mix of judges, refused on procedural grounds to deliberate a suit regarding California's Prop 8, a ban on same-sex marriage.  This turned the case back to a lower court that had already ruled against the ban.  In effect, this legalized same-sex marriage in California (NPR story).

The narrow splits in the Supreme Court reflect the seeming polarization of the American people on the matter LGBT issues and their connection to marriage and family.  A recent Pew Survey finds that a narrow 51% majority supports the legalization of same-sex marriage.  But I said "seeming" because this percentage shot up dramatically from 32% in 2003.  Moreover, 2/3 of Americans support the idea of civil unions for same-sex couples, and 60% agree that "society should accept homosexuality." So there's a social sea change out there that the Court does not appear to reflect regarding the issue of homosexuality.

In a harsh dissent, Justice Scalia called the ruling a "judicial distortion," but what really irked him was the subtext he saw in it.  The ruling painted pro-DOMA people as "hateful," as an "enemy of human decency," as "monsters" (Politico).  I didn't read the entire 77 page decision, but summaries (e.g. Huffington Post) of the decision can be boiled down to two issues.  The majority found that DOMA violated the the Fifth Amendment's "due process" clause, and that it unjustifiably denied a class of people equal standing before the law.  That is unconstitutional discrimination (it's not surprising that the decision cited the 1967 Loving v. Virginia case that struck down a state law banning inter-racial marriage--Washington Post).

Justice Antonio Scalia
http://www.oyez.org/justices/antonin_scalia

Scalia came up with those terms characterizing those opposed to full equality for homosexuals, exaggerating the language of his judicial opponents.  I think he did so in order to make the point that he should be allowed to be morally comfortable with discrimination.  It is not hateful or indecent to treat LGBT folks as second-class citizens, and how dare you suggest that...

Other reactions were equally visceral.  Mike Huckabee, former governor and presidential contender and current Fox commentator, tweeted "Jesus wept," a curious equation of Lazarus and DOMA (what Christ-like figure will appear to call to DOMA "Come forth!"?).  American Family Association radio host, Bryan Fischer, trotted out the tired saw that the ruling would lead to a sexapocalypse: "The DOMA ruling has now made the normalization of polygamy, pedophilia, incest and bestiality inevitable. Matter of time."  More sedate, the Conference of US Catholic Bishops called it a "tragic day for marriage"  (Tweets at Religious News).  Or you can go over to Rightwingwatch.org and wade through a slew of all sorts of dire predictions and accusations, starting with Focus on the Family James Dobson, who claims that the DOMA ruling "threaten[s] the entire superstructure of society" (Superstructure? Apparently, he doesn't know what the term means, but I prefer to think he's channeling Marx...).

I could go on like this, but I'll just get more sarcastic and snarky.  On this issue there's a gulf between a sizable minority and slim majority of Americans.  Those opposed to full equality for homosexuals depict their discriminatory position as moral or legal while those in favor of that equality see it as immoral or illegal.  There's no easy way over this gulf.  Every advance of equality has involved failed efforts to reason with one another, and ensuing conflict and bitterness.  We'll just have to endure it, and know that people in a generation or two--just as we do now looking back on the civil rights movements--will shake their heads at us, wondering how we could have been so obdurate

By the way--this decision has had immediate consequences here in Michigan, where a

...federal judge has ordered Michigan to stop enforcing a law that has barred community colleges and many other government agencies (though not universities) from providing any benefits to the same-sex partners of employees (Inside Higher Education).

This is perhaps a sign that all states that have passed laws designed to deny government benefits to same-sex couples--that is, trying to DOMA them at the local level--will face legal challenges in the near future.