People defending ‘religious freedom’ laws repeatedly say that the aim isn’t discrimination, but protecting what is in fact one of our most cherished American values – religious freedom. One of the key elements of the Indiana story is that even though many other jurisdictions have these laws, the Indiana one is significantly different, adding key provisions that help individuals and businesses to defy the government’s efforts to protect the rights of others. But there is some truth to the other point. And earlier religious liberty laws did have more of this focus.
The basic point was the government should have to meet a higher burden when it passes laws that impede the religious expression of what are almost by definition minorities – if they weren’t minorities the laws wouldn’t exist. So should prisons be able to make Muslims shave their beards or eat food that doesn’t abide by Muslim dietary restrictions? Should the state be able to stop Sikh children from carrying to school the ceremonial daggers which are a key part of their faith or not wear turbans or cut their hair? Can a Jewish soldier wear his yarmulke?
These are all cases where the government has a limited need to enforce such laws. And religious liberty can or should mean going the extra length not to enforce laws unless there is a strong and compelling state interest.
It is fair to say that there is no perfectly bright line separating protecting your own ability to act in certain ways and your freedom to treat other people in certain ways. But broadly speaking, there’s a pretty clear distinction. Whatever the specifics, the move over the last two years has been for the social conservative right to at least tacitly concede defeats on gay rights but argue for a penumbra of ‘religious liberty’ which exempts them from the rights-protections now afforded to gay people. Notably, this is the majority culture (or the unreconstructed part of it) pressing its rights against minority cultures.
Virtually no one – perhaps truly no one – says that ministers or rabbis should have to marry gay couples. But most of the religious liberty claims we’ve now seen in the last couple years focus on assertions of ‘religious liberty’ in cases that have nothing to do with the exercise of people’s religion. Indeed, we’ve seen huge corporations assert their ‘religious liberty’. Your religion doesn’t stipulate or guide how you make cakes or pizzas. More importantly, it is a principle well embedded in American law that all sorts of civil rights laws are not enforced against individuals but only against public businesses. Indeed, housing discrimination laws have exceptions if, for instance, you’re renting a room in your own house.
Basically, if you’re operating on your own, you have lots of freedom to discriminate. But when you are in business – taking advantage of all the protections and powers granted by the state – you lose those protections. You may have your own beliefs. But the public square operates under the law and you have to follow it. And taking advantage of the protections afforded to people in public commerce puts you and your actions in the public square.
As I said, there are no hard bright line demarcations. But you get a clue when it’s the majority culture employing its liberties against minorities – whether that’s minority religions, ethnic or racial minorities or gays and lesbians. Religious liberty is not only the freedom from state imposed religion – its original meaning – but a broad and extended set of protections against the majority arbitrarily impeding people from practicing their religion for malicious or simply arbitrary reasons. It is not, or shouldn’t be, about giving the majority religion the ability to honor the civil rights of fellow citizens on an a la carte basis.