The House Civil Law and Procedure Committee of the Louisiana State legislature wisely voted last week—and by a 10 to 2 majority—to “return to the calendar” House Bill 707, popularly called the Marriage and Conscience Act, effectively ending any chance for the bill to be voted into law by Louisiana’s legislators this year. Less wisely (at least in my opinion), Governor Jindal responded to this development by announcing his intention simply to issue an executive order that will, in his own words, “accomplish the intent of House Bill 707” anyway, in effect executing an end-run around his own state’s legislature. Unwise doesn’t mean illegal or immoral, of course: if the laws of Louisiana permit the governor to circumvent the people’s elected representatives by issuing orders with the force of law, then he is by definition not behaving illegally by exercising that right. (You can’t, after all, behave illegally if you are behaving legally.) But the whole concept of this kind of so-called “religious freedom” legislation is an issue that needs to be resolved through the medium of sustained, thoughtful national debate, not through gubernatorial grandstanding.
I’ve written to you at length about the various initiatives to enact so-called “religious freedom” laws that purport to guarantee that no citizen ever be required by law to act contrary to his or her religious principles, most recently about eighteen months ago when I expressed myself regarding similar legislation that was then pending in Arizona and which was ultimately vetoed by Governor Jan Brewer. (If you are reading this electronically, you can see that letter by clicking here.) When put that way, these laws sound like the kind of “apple pie” legislation that no one could seriously oppose. What, indeed, would be the opposing argument? That a nation that has enshrined freedom of religion among its most sacred principles should not grant its citizens the legal right not to betray the principles of their faiths to suit the wishes of others? And yet it turns out to be far more complicated than that.
When the issue on the table has to do with a florist refusing to sell flowers to a couple for use as centerpieces at their same-sex wedding—the specific issue that prompted my letter to you a year and a half ago—it feels easy to know how to feel: surely it does not actually contravene anyone’s principles to sell flowers to gay people to use as they wish! You can only argue to the contrary if you can say clearly what specific principles those would be, yet the need not only to identify such principles, but to identify them with those held by large numbers of other citizens, actually is the sticking point here. No one is going to argue seriously that people in our nation should not be free to worship according to the dictates of their conscience and thus to choose what faith publicly or privately to embrace. But the question on the table is more nuanced than that and has to do more with the issue of whether citizens should not also be free to determine for themselves what spiritual principles they wish to guide them forward in life in an absolute way unfettered by any obligation to conform to the standards of others. Should that freedom be extended to principles personally held by some individual who perceives them to constitute part the spiritual platform upon which he or she stands? Or should it only extend to the principles of “real” religions that everybody’s heard of? If the law requires the government to develop a list of “officially recognized faiths” in that regard, would it be a positive or negative development? Is religion essentially private and personal? Or is it, almost by definition, a group enterprise? If the latter, how large must the group be to matter? Can tiny groups count? People like myself who belong to minuscule religious minorities would be well advised to think so! And yet our nation’s religious leaders are not at all unified regarding the issue. Many oppose this kind of “Religious Freedom” legislation. Many, but not all! Just the other day, for example, I noted that fifty Orthodox rabbis took it upon themselves to write to Governor Jindal in support of the then-pending legislation.
The rabbis make a compelling case. They conjure up the specter of synagogues being sued for refusing to permit non-kosher caterers to serve meals on their premises or for declining to host interfaith marriages. Surely, most Americans who think of these as reasonable activities would find it correspondingly unreasonable for a couple to be refused service merely because they wish to serve ice cream after their roast beef at their own wedding reception, or because a bride and groom have decided to have a Jewish wedding even though only one of them is technically Jewish. The rabbis argue that laws like the one proposed for Louisiana, not unlike the similar bill signed by Governor Mike Pense into law in Indiana last March, would prevent there being legal consequences for declining such business on the grounds that accepting it would require a businessperson to contravene his or her religious principles. If a few gay couples are inconvenienced when some specific florist or caterer declines their business, then that, the rabbis suggest, would indeed be a small price to pay to preserve freedom of religion in our country. (If you wish to read more, click here for the text of the rabbis’ letter and the names of its signatories.)
I suppose I can see both side of the issue—nor do I feel that it isn’t ever appropriate or wise to compromise on some sincerely held beliefs for the sake of preserving or strengthening others deemed even more crucial to the public weal. (President Lincoln may have been right or wrong to suspend writ of habeas corpus on a nation-wide basis in 1862, but the concept itself that it can be reasonable to suspend some specific civil rights in times of great upheaval seems to me beyond debate.) Indeed, the Religious Freedom Restoration Act of 1993 specifically decreed that government can “substantially burden” a person's exercise of religion if doing so advances an important national interest and does so in the least restrictive way possible. In 1997, however, the Supreme Court determined that the federal act does not apply to the governments of individual states, as a result of which decision almost half the fifty states have now enacted state laws designed to protect citizens for behaving in accordance with their religious values. But hiding behind the question of the reasonability of these laws is another one that strikes me as fundamental to the discussion, yet which seems for some reason rarely if ever to be aired in public.
Who gets to speak for a religion? Or, to ask an even more basic question, who has the right to determine what a religion is, or what the adherents of a religion must believe or how they must behave? If we are going to countenance laws that permit citizens to ignore the law when they are acting out of religious conviction, then must we not first determine who gets to decide what the principles of a given faith actually are? Can citizens themselves come up with the spiritual principles they then wish to exercise their First Amendment right to pursue as their personal spiritual path forward through life? It seems odd to extend spiritual sovereignty only to groups and not to individuals. But even if we were to go that route, then would we not need first to say clearly how big such a group must be, and what specific hoops its adherents must jump through for their religion to be recognized as such by the justice system?
Governor Jindal clearly thinks that “religious” opposition to same-sex marriage is wide-spread enough, and inherently defensible enough, to justify making it illegal for the state to take action against people who bring that specific conviction to life by refusing to have anything to do commercially with same-sex weddings. But what if someone held a similarly profound and guileless conviction that interracial marriage was sinful? That’s a far less widely held view today, obviously. But why should one citizen be granted the protection of law and another not merely because the latter’s principle is less popular than the former’s and thus has fewer adherents among the voting public? What if someone were honestly and genuinely to feel him or herself visited by the spirit of prophecy and vouchsafed truths that run counter to cultural norms that prevail in our society? Surely the adherents of faiths that feature belief in an omnipotent God do not want to argue that the same God who made heaven and earth would not be able actually to tell somebody something! But what if that something involves a deeply unpopular idea, one that endorses behavior that is currently illegal?
It’s a slippery slope indeed for people whose holy Scriptures endorse bigamy and slavery—do we want to argue that people who sincerely believe those institutions are religiously mandated should be protected from prosecution because they act out of profound spiritual conviction? Is the use of peyote in religious ritual, the original issue that prompted the 1993 federal act mentioned above, widespread enough to make sanctioning its use like the granting of special dispensation to certain specific religious groups, including my own, to use wine during worship during the dark days of Prohibition? The story behind that law is instructive. In 1990, the Supreme Court ruled against two Native American substance-abuse counselors from Oregon who had been fired from their jobs because they tested positive for peyote, a hallucinogen used as part of worship at their church. It was a close 5-4 decision, but the final verdict was that the use of peyote was not protected by the First Amendment. And instructive too is Justice Scalia’s justification of his own nay vote. Allowing someone to break a law because of religious conviction, the justice wrote, “would open the prospect of constitutionally required exemptions from civil obligations of almost every conceivable kind.” That may have seems like a real possibility but, in the end, the people spoke and the federal bill was passed. The right to worship as one chooses was deemed to trump legislation that prevents such worship by outlawing some necessary part of it. But religion is not just rite and ritual…and so we are left on the horns of a mighty dilemma with respect not so much to the use of wine or peyote, but with respect to public behavior prompted by what a citizen perceives as his or her religious principles. Should the right to act in concert with one’s deeply held spiritual convictions be deemed so sacrosanct as to warrant the interruption of other citizens’ civil rights? Or should the blanket right of all citizens to be treated justly and fairly under the law trump the right to act in accordance with one’s faith?
We have entered into a debate that feels as though it is about the rule of law, but is actually about the nature itself of religion itself. Since government should, in my opinion, never try to breach the wall between church and state, laws that require the government to determine on its own the worth of devoutly held spiritual principles constitute a dangerous turn away from the rule of reason. Citizens should be permitted to follow the spiritual path of their choosing in accordance with their own consciences. Citizens should never be permitted, however, to trample on the civil rights of others as part of their own spiritual discipline…and that should be a foundational principle that applies regardless of how sincerely the individual in question believes in the worth of some specific part of that discipline. To worship the God in whose image all humankind is made by denying the innate right all human beings possess to chart their own path forward in life without being hampered by others’ principles—that seems like an iffy enterprise to me at best, and—particularly when used to justify discriminatory behavior that impacts negatively on the civil rights of others—as something far more pernicious than that.