Wednesday, April 08, 2015

bully pulpit

If I had been a member of the Indiana legislature, I would have voted for its Religious Freedom Restoration Act.

Now, before you start cheering or jeering, I hope you will be asking me: "Why?"  Because it is the missing "why" in this discussion that has led me to write this piece.

I started working on an earlier version of the essay two weeks ago -- and then decided to drop it.  The issue was simply getting too contentious for rational discussion.  But I have something to say, and I would then appreciate hearing from you in that same spirit.

This is not a new issue for me.  I was involved in the root case that eventually led to the enactment of the federal Religious Freedom Restoration Act.

The courts of Oregon, my late home state, decided it was appropriate to deny unemployment benefits to two members of a local Indian tribe.  They had been fired from their jobs at a rehabilitation clinic when they tested positive for mescaline.  (Mescaline is the main mind-altering compound in peyote buttons.)  Both Indians had used the peyote as part of a religious ceremony.

When they applied for unemployment compensation, their claims were denied by the state because they had been fired for the violation of a state statute -- using unlawful drugs.

The case made its way to the United States Supreme Court.  Most of us expected Oregon was going to get its briefs hung out to dry by the court. 

The United States Constitution provides what appears to be an absolute right in the exercise of religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." 

Inevitably one "absolute right" will run up against another "absolute right."  In interpreting the Constitution, the Supreme Court has developed several balancing tests.  And it did just that with what was to be called the Sherbert test in applying the free exercise clause.

The test was simple. 

1.  Has the government burdened the individual's free exercise of religion? 

2.  Did the government have a compelling state interest that justifies the action? 

3.  Was there no alternative regulation that could avoid the infringement and still have achieved the state's compelling interest?

Applying that test, we all thought the court would decide the free exercise of both Indians had been infringed; that Oregon may have had a compelling state interest in deterring the use of drugs; but that there were certainly alternative forms of regulation Oregon could have imposed -- short of absolute prohibition.

The Supreme Court surprised us all by coming up with a new test.  Oregon had not infringed the free exercise of religion because the anti-peyote statute was generally applicable to everyone in the state.  In that sense, religious liberty was not infringed.  Of course, that test completely obliterated the "no alternative form of regulation" prong of the test.

Congress was outraged at what it saw as an unwarranted attack on religious liberty.  Chuck Schumer, in the House, and Teddy Kennedy, in the Senate, introduced legislation under Congress's authority to supervise the federal courts.  The bill, of course, was the Religious Freedom Restoration Act.  And it passed unanimously in the House, and with only three "no" votes in the Senate.

Its purpose was very conservative.  Merely to restore the Sherbert three-prong test when religious liberties are at stake -- even for laws of general applicability.

Nothing in the law was discriminatory nor radical.  It merely put religious liberty cases back where they were before the Supreme Court's 1990 decision.

In 1997, the Supreme Court decided the Act applied only to actions of the federal government.  As a result, several states enacted their own version -- even though the provisions of the free exercise clause still restricted the actions that states could take in interfering with religious liberty.

As of today, 21 states have acts similar to the federal law.  Fifteen other states are considering them.

Taking the background of the act into account, I was shocked when I read headlines that Indiana was the subject of a boycott for enacting a state version of the act.  The allegations were that Indiana had passed a law that would allow people to use religious beliefs to discriminate against gays.

I was shocked because I could not imagine any legislator would be stupid enough to write a statute that allowed discrimination.  So, I looked it up online.

Of course, I could not find any discriminatory language in the legislation -- because it simply was not there.  But the Sherbert test was there.  Just as it is in the federal and other state statues.

The Sherbert test certainly does not create discrimination.  It prevents it. 

The reason it passed with such overwhelming popularity from both the left and the right is that it is a neutral test to be applied to individual cases.

It did not take me long to discover what had happened, though.  In supporting the bill, some legislators had made preposterous statements that the test would prohibit discrimination cases against bakers and photographers who chose not to participate in gay wedding ceremonies.

The legislators may have been pandering, but they were wrong on several levels.  The language of the statute did not support their claims.

But, to me, the story here is not in the legislation itself.  The law will work out its own way.

I am concerned about two groups who seem to be losing their way in this political thicket.

The first are the gay activists who have essentially resorted to factual distortions (what we once called "lies") in supporting their cause.  It made me wonder what had happened to the wise spokesmen who made such a successful pitch on the same sex marriage issue.

The same sex marriage issue was successful because the spokesmen caught the hearts of a majority of the American public.  By talking about "fairness," they left their opponents flat-footed. 

When the opponents should have been making a compelling argument for traditional marriage, they instead made arguments that had the distinct scent of discrimination.  That is why same sex marriage now has the aura of inevitability.

Having drawn so close to winning the same sex marriage issue with arguments of compassion, gay activists have shown up in Indiana with the type of bully tactics that lost support for unions in Wisconsin.  All of a sudden choice was turning into compulsion.

It has not been a pretty picture.  In a few short months, the movement has transformed from Julie Andrews to Al Sharpton.

What hurts most, though, for me, is the subtext of this issue.  When the Christian cake maker and photographer were approached to participate in same sex ceremonies, they had an opportunity to put into practice the principles that Jesus taught us Christians.

Jesus spoke of religious leaders who used their principles to indulge in congratulating themselves about their piety and righteousness.  But he was not setting them up as our mentors.  He criticized them for excluding themselves from others who they felt did not rise to their level.

What Jesus taught his disciples was to search out the thirsty and to then offer them everlasting water.  That we are to love God with all of our being -- and to love our neighbors as we love ourselves.  If slapped on one cheek, to turn the other.

The Christian faith is not a faith of political and legal power.  It is a faith of individuals offering help to others in the name of God.

Let's be clear about one thing.  I can find nothing in the Bible that even vaguely allows me to indulge in discrimination that is not only immoral, but is an affront to everything for which Christianity stands.

What greater testimony would it be to show love to those with whom we disagree by participating in life with Christian love?  The cakemaker and photographer could have shown up here as emissaries of The Good News.  And there might have been a miracle buried there somewhere.

My suggestion is that we all take a deep breath, calm ourselves,

and start trying to improve each other's lives.  Both sides need to stop talking and acting like bullies.

Maybe we will all be better off for it.

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