Recently, the state of Indiana has popped up as the source controversy on the internet and news media. The reason? The state assembly and the governed passed its own version of the Religious Freedom Restoration Act which many believe would allow business owners to discriminate against homosexual customers. Because same sex marriage and lifestyles are still sensitive issues, this particular legislation has received criticism from many including the NCAA, Ashton Kutcher, and Hillary Clinton. (Though why she’s getting involved with this and not adequately explaining her reason to use a private email account to handle sensitive State Department communications is beyond me.)
As a result, there has been several accusations going around that a “Jim-Crow” era for homosexuals has begun. This is a bizarre comparison since many black leaders reject the comparison. In fact the National Black Church Initiative, “representing 34,000 churches from 15 denominations”(Christian Post), has broken its ties to the Presbyterian Church of the USA when the latter changed its definition of marriage to include same sex couples. It seems odd, then, that a demographic that has been historically discriminated against is not interpreting the situation as a repeat of history. Could it be that people have a greater affinity for sensationalism than the truth? Could it be that all the raucous is just noise to keep viewers entertained? Or is there a sinister conspiracy afoot?
Well, the best place to find answers is the law itself. Unfortunately, I am not a legal analyst. Of course, neither are many of the talking heads and bloggers who are also commenting on this piece of legislation. (If you would like to see the text, the Weekly Standard has a link to it here.) That being said, the law from my understanding does not permit businesses to provide separate but equal services or goods to same sex customers. Nor does it allow realtors to determine where people will be offered to live based on their sexual preferences. And there is no provision to hinder the homosexual community from voting.
Instead the text does require that if a government institution were to override a business or individual’s right to freedom of religion, it must show that it has a compelling interest to do so and that this is the least restrictive manner to accomplish it. In other words, the government must consider the views and values of all Americans before coercing them into action. And this is nothing new. A few religious groups are exempt from signing up for mandatory military service. The media, through free speech and freedom of the press, cannot be regulated to say one specific message or obligated to offer both sides of a story.
Now someone might say, “That’s not the point. The law is protecting bigots and discrimination.” Perhaps. There is always the potential for people to misuse the law. But does that make the law bad, particularly when it comes to protecting differences of moral values? I remember a few years ago when abortion was the hot button issue across America that pro-choice advocates were saying, “You can’t legislate morality.” And that’s exactly what’s happening here. Through either the courts or by state referendums, people have been trying to legislate moral values. And you cannot do that unless everyone agrees on what those ought to be. If you do, you make the society around you less free. As I’ve mentioned before in another post, J.S. Mill’s On Liberty correctly tells us that enforcing the truth/dogma as law blinds us to the possibility that the particular truth claim is wrong or not fully correct. A free exchange of ideas, as well as the ability to act upon them, is required then to better understand the truth.
So is RFRA in Indiana really that bad? I’d have to say no. While it may upset people that they could be potentially denied a service for their wedding, the law does not permit discrimination for the sake of discrimination. Instead it does provide religious business owners and individuals the opportunity to exercise their religious freedoms without the fear of the government enforcing different values on them.
Besides the Weekly Standard article (see the above link), I also found the legal commentary from CNN to be insightful as well.