On the State RFRA Contretemps: Doug Laycock (and Me)

Two little items to report. First, Professor Doug Laycock has a very good piece at the Religion and Politics Blog.

Second, I participated in a Bloomberg Law podcast with Professor Robert Katz on these issues. I thought we had a useful exchange. At the end of the interview, however, Rob was asked a question about the relevance of Hobby Lobby to these matters, to which he responded essentially that the two were disconnected. I didn’t get a chance to jump in (had to leave to teach class!) but I have a different view and thought this quote from Doug’s piece was apt:

For the first time in American history, government had made it unlawful, at least if you were an employer, to practice a well-known teaching of the largest religions in the country. The same-sex marriage debate has the same feature. This attempt to suppress practices of the largest faiths is a new thing in the American experience. And this huge escalation in the level of government regulation of religious practices is of course producing a reaction from religious conservatives, and is part of the reason for the current polarization.

Ironies in Indiana

Some readers have asked me what I think about the Indiana RFRA controversy, as an academic who studies law and religion. To my mind, opponents of the law have succeeded in creating a false sense of crisis about the evil this allegedly unprecedented law would unleash in America. In this, they have been greatly assisted by the media’s framing of the issue and and by the support of corporate titans like Apple and Walmart, which have decided to intervene in the dispute–incidentally proving, as Justice Alito argued in Hobby Lobby, that for-profit corporations sometimes do express goals other than merely making money.

In addition, it seems to me that the controversy contains three very significant ironies, two for the law’s opponents and one for its supporters.

First, notwithstanding opponents’ efforts to portray the Indiana statute as an innovation, the balancing test it establishes is nothing new. The test, which holds that government cannot impose substantial burdens on citizens’ religious exercise without showing a compelling need to do so, and without choosing the least-restrictive means for doing so, was American constitutional law for decades, until the Supreme Court jettisoned it for most purposes in 1990. It is the test embodied in the federal version of RFRA, enacted without opposition more than 20 years ago; in the many state versions of RFRA; and in the constitutional law of many other states. Indeed, according to scholars Cole Durham and Brett Scharffs, the compelling-interest test is the majority rule in the United States today. It’s true that there are a couple of differences in the Indiana law, but those differences are pretty minor, and anyway the debate has not focused on them.

Even more: something like the compelling-interest test is the rule in liberal societies around the world. The European Convention on Human Rights, for example, provides that a member state can interfere with citizens’ exercise of religion only where the state shows that the interference is “necessary” to achieve an important interest. Many countries have similar balancing tests, including Canada, Israel, and South Africa. From a global perspective, there is nothing unusual about the Indiana statute.

Second, the Indiana statute leaves ultimate determinations to the courts. It does not, as some of its opponents  misleadingly claim, legalize discrimination against gays and lesbians. In the unlikely event that an Indiana business refused, in violation of any applicable anti-discrimination laws, to serve gay people, and claimed a religious justification for doing so (how many such businesses are there, anyway?), the case would proceed to litigation, in which a court would determine (1) whether requiring a business to serve gay customers is, genuinely,  a substantial burden on its religious exercise; (2) if so, whether the state’s interest in preventing discrimination against gays is compelling; and (3) whether there is some way other than requiring the business to serve gay customers that could advance that interest equally as well. I wouldn’t bet on the business’s chances in such a lawsuit. Given the great success supporters of gay rights have had in American courts in recent years, it is ironic that they would lose faith in the courts now.

And this leads to the third irony, one for the statute’s supporters. Some supporters evidently are confident the Indiana statute would allow a business to refuse, on religious grounds, to participate in same-sex wedding ceremonies—caterers and photographers, for example.  (This is not the same thing as refusing generally to serve gays and lesbians, incidentally, and it is not helpful to conflate the two situations). That’s why they are fighting so hard for the law. But it is not at all clear they are correct. Whatever one thinks about the merits of a religious exemption in these circumstances, it is uncertain that a court would actually rule in favor of the business. Maybe the business would prevail in a RFRA lawsuit, maybe not.

On the basis of distortions, mistakes, and uncertain predictions, we seem ready to abandon a foundational principle that exists, not only in American law, but in legal systems across the world. The New York Times refers, without irony, to “so-called religious freedom laws.” On Morning Joe this week, Mika Brzezinski suggested that stopping the Indiana statute would not be enough; it’s time, she hinted, to revisit the federal RFRA itself.  We seem ready, in other words, to take courts out of the business of protecting religious minorities. Does that seem a good idea?

“Religion and Political Tolerance in America” (Djupe, ed.)

This June, Temple University Press will release “Religion and Political Tolerance in America: Advances in the State of the Art” edited by Paul A. Djupe (Denison University).  The publisher’s description follows:

Religion and Political ToleranceReligious institutions are often engaged in influencing the beliefs and values that individuals hold. But religious groups can also challenge how people think about democracy, including the extension of equal rights and liberties regardless of viewpoint, or what is commonly called political tolerance.

The essays in Religion and Political Tolerance in America seek to understand how these elements interrelate. The editor and contributors to this important volume present new and innovative research that wrestles with the fundamental question of the place of religion in democratic society. They address topics ranging from religious contributions to social identity to the political tolerance that religious elites (clergy) hold and advocate to others, and how religion shapes responses to intolerance.

The conclusion, by Ted Jelen, emphasizes that religion’s take on political tolerance is nuanced and that they are not incompatible; religion can sometimes enhance the tolerance of ordinary citizens.

“Politics of Religious Freedom” (Sullivan et al., eds.)

This June, University of Chicago Press will release “Politics of Religious Freedom” edited by Winnifred Sullivan (Indiana University Bloomington), Elizabeth Hurd (Northwestern University), Saba Mahmood (University of California, Berkley), and Peter Danchin (University of Maryland).  The publisher’s description follows:

In a remarkably short period of time, the realization of religious freedom has achieved broad consensus as an indispensable condition for peace. Faced with widespread reports of religious persecution, public and private actors around the world have responded with laws and policies designed to promote freedom of religion. But what precisely is being promoted? What are the cultural and epistemological assumptions underlying this response, and what forms of politics are enabled in the process?

The fruits of the three-year Politics of Religious Freedom research project, the contributions to this volume unsettle the assumption—ubiquitous in policy circles—that religious freedom is a singular achievement, an easily understood state of affairs, and that the problem lies in its incomplete accomplishment. Taking a global perspective, the more than two dozen contributors delineate the different conceptions of religious freedom predominant in the world today, as well as their histories and social and political contexts. Together, the contributions make clear that the reasons for persecution are more varied and complex than is widely acknowledged, and that the indiscriminate promotion of a single legal and cultural tool meant to address conflict across a wide variety of cultures can have the perverse effect of exacerbating the problems that plague the communities cited as falling short.