Religious Freedom in the Non-Hypothetical Universe

Indiana’s Religious Freedom Restoration Act will go down as one of the worst political calculations in history. Governor Mike Pence and the party he represents have been well schooled now in just how much society has changed on the issue of LGBT rights. Trying to please the increasingly small subset of Fundamentalist Christians who feel homosexuality is a sin is no longer a winning political strategy. For those of us who are in favor of LGBT rights, this is cause for celebration.

This was an example of what author Jon Ronson (So You’ve Been Publicly Shamed) defines as good shaming. The power of the internet to amplify voices of dissent against those with power.

“When we deployed shame, we were utilizing an immensely powerful tool. It was coercive, borderless, and increasing in speed and influence. Hierarchies were being leveled out. The silenced were getting a voice. It was like the democratization of justice.”

Confronted with the fact that his “base” was a bit smaller than he had imagined (friggin’ Wal-Mart came out against this law), we watched Mike Pence scramble trying, with little success, to alienate neither gays nor the people who would discriminate against them. He fell off the tight-rope, and those in favor of gay rights enjoyed a moment of Schadenfreude. Pence’s fall-back position was that he had never intended for the law to make discrimination against gay people legal. (A claim that GLAAD has debunked rather convincingly.)

The people have spoken. We will not stand for discrimination. This is good.

That said, I don’t think we do ourselves any favors when we pretend that the question of balancing religious freedom and laws that govern all people in a pluralistic society is straight-forward or easy. We should not dismiss out of hand the arguments of those who do not want to put two brides on top of a wedding cake because we disagree with their point of view. The legal question is not whether this belief is right or wrong.

As someone who wrote a novel from the point of view of a bisexual Christian minister, I can debate scripture with the best of them to make the case that same sex love is not incompatible with Christianity, but that would be missing the larger point. (Debating scripture really does not work. Last time I got into an actual Biblical debate with a Fundamentalist on the topic of LGBT equality he called my reading “vacuous and ignorant” and went on to explain to me what Jesus meant with a level of certainty that implied he had spoken to Jesus personally. The litmus test for whether an interpretation was correct or not was whether it agreed with his own. We had such divergent frameworks for discussing theology that it was pointless to have the conversation.)

When a law designed to apply to the entire community comes into conflict with a particular minority religion’s views or practices, can the religious group opt out? (Yes, in spite of their political influence and PR success defining their type of Christianity as the main and most legitimate form, Fundamentalist Christianity is a minority religion. Most Americans describe themselves as Christian but only 30% take a Fundamentalist view of the Bible.) When is it in the public interest to allow them to do so, and when is it in the public interest to curtail their practices? These are very messy questions and the Supreme Court has not been entirely consistent in how it has ruled when the inevitable conflicts arise. There was a very good article about the difficulties of striking this balance on The Immanent Frame. The article was published in the wake of the Hobby Lobby decision.

I was reading an article today on the blog Holy Bullies and Headless Monsters. It began by saying “We all know that the anti-gay right are being highly deceptive when they whine about how marriage equality and LGBT equality in general will harm ‘religious freedom.'”

While I am in sympathy with this blog’s point of view in general, I have to take exception with this notion. Yes, there are certainly politicians on the right who are more concerned with getting the votes of Evangelicals than they are with their issues. But I do not for a moment consider all Fundamentalists to be deceptive when they talk about religious freedom. Those who believe homosexuality is sinful and morally wrong have a real conflict when they are asked to take part in a ceremony to commemorate same sex unions.

I laughed when I saw Jon Stewart’s take on Indiana’s law.

Stewart criticized comparisons that those in favor of the law have made between having to serve same-sex weddings to businesses having to serve Nazis, the KKK or the Westboro Baptist Church.

“Basically, you see people celebrating love as a hate group,” he said.

A marriage between Tom and Steve is not the equivalent of a Nazi march and it is upsetting to think that there are people who are as morally offended by the former as the latter. Yet this is losing sight of the main thrust of the Fundamentalists’ argument. The point is not that these “sins” are morally equivalent. They are asking you to empathize with the conflict they face in being asked to do something that compromises their moral convictions by framing it in terms of something more widely agreed upon.

Media Matters makes a strong case that having to print a Swastika on a cake, for example, is not equivalent to making a cake for the wedding of two women. This they describe as “a fundamental inability to understand that the RFRA debate was over discrimination against gay people, not gay ‘thoughts.'” The law allows people to refuse to serve customers based on ideology– you have every right not to print pamphlets endorsing a view you fundamentally disagree with– but does not give people the right to discriminate against a certain class of people.

But the distinction between “person” and “ideology” is not as clean cut as some would make it out to be. From the pro-LGBT rights perspective gays are a type of person and a protected class. From the Fundamentalist perspective, homosexuality is a behavior. (Hate the sin, love the sinner. Incidentally, I got into a debate recently with someone who thought “Hate the sin, love the sinner” was a saying of Jesus. It does not come from the Bible at all. When you say that you’re actually quoting Gandhi.) They believe that some people are burdened with same sex attractions but God decrees that they shalt not act on them. They do not want to deny service to gay people in general, but they want the right not to have to participate or endorse the ideology that it is not sinful for “men to lie with men as with women.”  They do not want to be involved in a practice they believe is wrong. From this point of view, refusing to sell a newspaper to a man who seems effeminate would be wrong, but having two men share a bed in their B&B would force them to be complicit in sin. Putting two brides on top of a cake would be endorsing the ideology that a wedding between two women is equivalent to a wedding between a man and a woman.

Yes, the conflict is genuine.

I would like to take a quick diversion here back to the Holy Bullies article I referenced earlier. The author asks “For all of their talk about protecting the ‘religious freedom’ of folks who believe that homosexuality is a sin, one wonders how does the anti-gay right feel about protecting the ‘religious freedom’ of those who do NOT think that homosexuality is a sin?”

Indeed, this is a good question, and an important one when it comes to things like trying to ban same sex marriage more broadly. When religious people argue that same sex marriage should not be legal because it infringes on their religious rights they have it backwards. Banning the practice by law not only keeps religious people from having to participate, it prevents those whose religious and moral frameworks are in favor of same sex marriage from practicing their religion.

Fundamentalists seem to have accepted that they have lost this fight. Where once they could control the direction of the majority of the country, they are now in the minority. They are now asking to be allowed to opt out.

That is actually not what the Holy Bullies article is talking about here though. Both examples of “right wing hypocrisy” that they cite involve Christian religious leaders chastising other Christian groups for not holding what they believe to be the orthodox reading of scripture. (One who calls LGBT affirmative Christianity a “heresy” and a pair calling for the president of a Baptist university to be fired for allowing a lesbian pastor to speak on campus.) Christians are certainly free to argue amongst themselves as to how to properly practice their shared religion, and it is no business of the government or law to wade in on those disputes. The good news for those who are in favor of gay rights is that, as Bondings 2.0 reports, “faith communities are increasingly resisting such discrimination being perpetuated in their names.”

So what do you do when the law of the land is at odds with a minority group’s religious belief or practice? It’s messy and complicated. If you’re a Mormon and you want to practice polygamy, the Supreme Court says the state has a compelling interest in forbidding you from doing that. If you’re Amish and you want to opt out of the draft, the Supreme Court says you can. If you’re a Native American and you want to smoke peyote the Supreme Court says no. If you run a craft store and you want to opt out of Obamacare because you’re against birth control you can do that.

I’m not generally a fan of Russell Brand when he goes into his new age preacher mode. But there was one element of this clip that I thought was worth re-iterating.

Brand comments on the latest human morality play the news has created, Memories Pizza in Indiana, which gained our attention when its owner said she would not cater gay weddings because it was against her belief. The comical image of pizza delivery to a gay wedding in itself probably helped propel the story to national attention. The part of Brand’s speech that caught my attention is toward the end when he points out that in the case of Memories Pizza, the entire argument is hypothetical. It is a symbolic act by the pizza shop and a symbolic act by those who picketed the shop and a symbolic act by the supporters who donated money to the shop.

But same sex couples who want to have a wedding without being shunned and shamed are not hypothetical or symbolic. Anti-discrimination laws simply don’t work if people can opt out of them. “It is illegal to discriminate against this group of people… unless you feel really strongly about it.” In a non-hypothetical universe this will not work.

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