A national firestorm has erupted over an Indiana law that, in all essentials, mirrors the legal standard protecting religious liberty in all federal courts and 31 state courts. Why? The answer, unfortunately, is “the culture war” – and, contrary to media portrayals, conservatives aren’t the aggressors here.
Who favors coercion in this debate? Who opposes tolerance and pluralism? The answer to both questions: activists on the left.
The laws under attack – Religious Freedom Restoration Acts – are designed to shield all faiths from government coercion. These acts have, for example, protected a Sikh woman’s freedom to carry religious articles at her workplace. They have allowed a Native American boy to wear his hair long, according to his religious beliefs, at his school.
They also might protect those who hold the belief – attested to from the beginning of the Hebrew Bible to the end of the Christian Bible and throughout the Koran – that marriage is the union of man and woman.
And that’s the belief that the left cannot abide. Well-funded special-interest groups refuse to respect the liberty of people of faith who simply ask to be left alone by government to run their charities, schools and businesses in accordance with their beliefs about marriage.
These groups would have the government force citizens to help celebrate a same-sex wedding and penalize them if they try to lead their lives in accordance with their reasonable belief that marriage is a union of husband and wife.
Most ordinary citizens, whether they favor or oppose gay marriage, don’t want this sort of government coercion, which is why religious liberty has historically been uncontroversial in the United States – and why Indiana’s religious-freedom law quite rightly places the burden of proof on government when it infringes on people’s religious beliefs.
For more than 20 years, the federal government has lived by this standard. The federal Religious Freedom Restoration Act passed unanimously in the House, won 97 votes in the Senate and was signed into law by President Bill Clinton. Twenty states have passed versions of this law, and 11 additional ones have religious-liberty protections that state courts have interpreted to provide a similar level of protection.
Why are America’s liberal activists suddenly opposed to this? They claim religious-freedom laws allow “anti-gay discrimination.” They’re wrong.
This debate has nothing to do with refusing to serve gay people simply because they’re gay. These laws don’t protect that. The question is whether the government should discriminate against citizens who believe marriage is between a man and a woman.
Some people say Indiana’s version of the law will allow restaurant owners to refuse to serve gay men and lesbians. But we know of no religion that teaches that it’s wrong to sell burgers to people because they’re gay. Others say it will allow a bed-and-breakfast to refuse to accommodate gay men or lesbians. But even that’s not right. All it would do is allow both parties in a dispute to have their day in court.
The law doesn’t say who will win this case – only that a court should review the question, using a well-established balancing test. The owners would need to explain how the government violated their religious exercise, and the government would have to explain why housing is a compelling government interest and requiring all bed-and-breakfasts to rent to gay couples is the least restrictive means possible of pursuing that interest.
The United States is in a time of transition. Courts have redefined marriage, and beliefs about human sexuality are changing. Will the right to dissent be protected? Will the right of Americans to speak and act in accord with what the United States had always believed about marriage – that it’s a union of husband and wife – be tolerated?
It is outrageous for activists to compare such dissent to racism and Jim Crow. What does marriage have to do with race? Absolutely nothing. But more or less every society throughout history, and all the major world religions, have held that marriage is the union of man and woman. Even if the legal definition of marriage is changed for public policy purposes, should that entitle activists to silence citizens and eradicate charities, schools and business that simply ask for the freedom to operate according to this belief?
Religious-liberty protections are one way of achieving civil peace even amid disagreement. The United States is a pluralistic society.
To protect that pluralism and the rights of all Americans, of whatever faith they may practice, religious-liberty laws are good policy. Liberals committed to tolerance should embrace them.
Meese, the U.S. attorney general from 1985 to 1988, is a distinguished fellow emeritus at the Heritage Foundation. Anderson is a fellow at the foundation.