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发帖数: 29846 | 1 Indiana isn’t targeting gays. Liberals are targeting religion.
March 30, 2015 8:03 p.m. ET
In the increasingly bitter battle between religious liberty and the liberal
political agenda, religion is losing. Witness the media and political wrath
raining down upon Indiana because the state dared to pass an allegedly anti-
gay Religious Freedom Restoration Act. The question fair-minded Americans
should ask before casting the first stone is who is really being intolerant.
The Indiana law is a version of the federal Religious Freedom Restoration
Act (RFRA) that passed 97-3 in the Senate and that Bill Clinton signed in
1993. Both the federal and Indiana laws require courts to administer a
balancing test when reviewing cases that implicate the free exercise of
religion.
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To wit: Individuals must show that their religious liberty has been “
substantially burdened,” and the government must demonstrate its actions
represent the least restrictive means to achieve a “compelling” state
interest. Indiana’s law adds a provision that offers a potential religious
defense in private disputes, but then four federal appellate circuits have
also interpreted the federal statute to apply to private disputes.
The federal RFRA followed the Supreme Court’s Employment Division v. Smith
ruling in 1990 that abandoned its 30-year precedent of reviewing religious
liberty cases under strict scrutiny. Congress responded with RFRA, which
merely reasserted longstanding First Amendment protections.
In 1997 the Supreme Court limited RFRA’s scope to federal actions. So 19
states including such cultural backwaters as Connecticut, Rhode Island and
Illinois followed with copy-cat legislation, and Indiana is the 20th. Courts
in 11 states have extended equally vigorous protections.
Indiana was an outlier before the new law because neither its laws nor
courts unambiguously protected religious liberty. Amish horse-drawn buggies
could be required to abide by local traffic regulations. Churches could be
prohibited from feeding the homeless under local sanitation codes. The state
Attorney General even ruled Indiana Wesleyan University, a Christian
college which hires on the basis of religion, ineligible for state workforce
training grants.
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In February, 16 prominent First Amendment scholars, some of whom support
same-sex marriage, backed Indiana’s legislation. “General protection for
religious liberty is important precisely because it is impossible to
legislate in advance for all the ways in which government might burden the
free exercise of religion,” they explained.
That hasn’t stopped the cultural great and good from claiming Indiana added
the religious defense in private disputes as a way to target gays. If this
is Indiana’s purpose, and there’s no evidence it is, this is unlikely to
work.
The claim is that this would empower, say, florists or wedding photographers
to refuse to work a gay wedding on religious grounds. But under the RFRA
test, such a commercial vendor would still have to prove that his religious
convictions were substantially burdened.
And he would also come up against the reality that most courts have found
that the government has a compelling interest in enforcing
antidiscrimination laws. In all these states for two decades, no court we’
re aware of has granted such a religious accommodation to an
antidiscrimination law. Restaurants and hotels that refused to host gay
marriage parties would have a particularly high burden in overcoming public
accommodation laws.
In any event, such disputes are rare to nonexistent, a tribute to the
increasing tolerance of American society toward gays, lesbians, the
transgendered, you name it.
The paradox is that even as America has become more tolerant of gays, many
activists and liberals have become ever-more intolerant of anyone who might
hold more traditional cultural or religious views. Thus a CEO was run out of
Mozilla after it turned out that he had donated money to a California
referendum opposing same-sex marriage.
Part of the new liberal intolerance is rooted in the identity politics that
dominates today’s Democratic Party. That’s the only way to explain the
born-again opportunism of Hillary Clinton, who tweeted: “Sad this new
Indiana law can happen in America today. We shouldn’t discriminate against
ppl bc of who they love.”
By that standard, Mrs. Clinton discriminated against gays because she
opposed gay marriage until March 2013. But now she wants to be seen as
leading the new culture war against the intolerant right whose views she
recently held.
The same reversal of tolerance applies to religious liberty. When RFRA
passed in 1993, liberal outfits like the ACLU were joined at the hip with
the Christian Coalition. But now the ACLU is denouncing Indiana’s law
because it wants even the most devoutly held religious values to bow to its
cultural agenda on gay marriage and abortion rights.
Liberals used to understand that RFRA, with its balancing test, was a good-
faith effort to help society compromise on contentious moral disputes. That
liberals are renouncing it 20 years after celebrating it says more about
their new intolerance than about anyone in Indiana. |
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