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.