Yesterday, Indiana's five Catholic bishops released a statement on the unfolding controversy surrounding Indiana's Religious Freedom Restoration Act. The statement says, in part:
We support efforts to uphold the God-given dignity of all the people of this state while safeguarding the rights of people of all faiths to practice their religion without undue burden from the government.It sounds incredibly reasonable, balancing "the God-given dignity of all people" against "the rights of people of all faiths to practice their religion." But it's not reasonable at all. It's dangerous nonsense. And, Catholic bishops should be the first to know better.
Religious freedom is important because it boils down to the protection of conscience. The right to believe and to practice belief is inseparable, fundamentally, from the right to speak, to publish, to assemble, etc. because they all concern our deepest convictions. These are the ways we express who we are.
But there are fair limits. Justice Holmes famously observed that, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Public safety is one limitation we have recognized for those basic rights. But it is not the only one.
In 1973, Dade Christian School in Hialeah, Florida refused admission to two African American sisters, informing their parents that, "the policy of the school is one of non-integration and we would request that you respect this policy." In later court filings, Dade Christian asserted that, "its members sincerely held a religious belief that socialization of the races would lead to racial intermarriage, and that this belief, sanctioned by the Free Exercise Clause, should prevail against private interests created by Congress." The court did not agree. In Brown v. Dade Christian Schools, Inc. (1977), the Fifth Circuit held that, "Dade Christian's interests [in the free exercise of religion], while not minimal, do not rise to the level that has characterized numerous free exercise claims." The school claimed a religious reason for discrimination, but the government's interest in a non-segregated society was a more compelling interest. Historically, there is at least this precedent for seeing religious claims as insufficient next to claims against discrimination.
A federal statute signed by Bill Clinton in 1993 changed the picture. The federal Religious Freedom Restoration Act (RFRA) raised the standard that the government has to meet in order to overcome the claims of religious freedom. Had the Dade County case been argued after 1993, very likely the court would have had a much more difficult time ruling against the school's non-integration policy. To offer just one example of why we might think so, the Supreme Court ruled unanimously in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), citing to the RFRA, that a teacher engaged in a ministry (such as teaching religion) could be fired by a religious school for any reason, and without regard for the kinds of protections that usually prohibit discrimination. During that case's oral argument, the justices contemplated that a church janitor might be called a minister, and that person theoretically could be fired for race or gender reasons despite civil rights protections that would apply in other cases, with a non-religious employer.
In many ways, this is the shape of the situation in which Indiana and the nation find ourselves today. Since 1993, twenty states have passed their own versions of the RFRA, raising the standards that state governments must reach to overcome religious objections. That is the sort of law that Indiana has passed, cultivating an extraordinary and immediate backlash. Indiana Gov. Mike Pence and conservative groups have argued that Indiana's law is no different from the other state RFRA's. But that is not true.
The Indiana law contains an entirely novel provision. Other state RFRA's and the federal RFRA only limit the government's ability to enforce anti-discrimination claims, but Indiana's law empowers companies and corporations to claim religious protections in the course of conducting business. This doesn't mean--as has been reported widely--that religious business owners have a license to discriminate against LGBT people. The legal picture is murkier than that. But it does mean that, should a person be discriminated against by an Indiana business owner because of being gay, and should that person sue in state court for relief, the business owner might be able to point to the Indiana RFRA for protection. It's not a license to discriminate. But it is a legal leg to stand on.
As upsetting as that prospect is, I am more troubled by something else entirely.
The Supreme Court set us in this direction last year with its decision in Burwell v. Hobby Lobby. In that case, the Court ruled that "closely-held corporations" could assert a religious objection against the Affordable Care Act. That followed the Court's ruling in Citizens United v. FEC where free speech protections were recognized for corporations. We have been drifting in this direction at least that long. Our ideas about basic constitutional protections have been shifting, first with the federal RFRA and now with the idea that corporations enjoy the same rights as people. The implications for our politics seem subtle for now, but it will not stay that way.
What is especially upsetting is that this protection of businesses and business owners within the context of the RFRA undermines the constitutional and legal foundations of civil rights, and all the presumptions about political and civil society that accompany them.
It is little appreciated that while the Fourteenth Amendment offers the guarantee of equal protection on which civil rights and anti-discrimination measures are built, the Fourteenth Amendment offers no mechanism with which government can enforce equality. To enforce the demands of the Fourteenth Amendment's equal protection clause, the Civil Rights Act of 1964 had to look elsewhere and settled on the government's authority to regulate commerce. Article I, section 8 of the Constitution gives the federal government authority to make rules for commerce, and the Civil Rights Act enforces legal equality, protects against discrimination, by making rules for businesses. Restaurants, hotels, and all other places of business that are open to the public must be open to the whole public.
Commerce was a natural and fitting way in which to proceed against discrimination in public spaces. The marketplace is, by definition, a public space where different sorts of people come together from different perspectives to encounter and engage one another. To have discrimination in the marketplace, in a way unlike almost any other space we can imagine, is an intolerable assault on the idea of a shared public space for everyone. If we cannot gather in the marketplace, disregarding our differences, there is no place where should expect to gather.
The Hobby Lobby decision began to erode that idea, and the Indiana law has eroded it further.
The idea that religious belief should not be contained within the four walls of a church, or some other place of worship, expresses an important idea, that religious belief should be socially and politically relevant. This same idea motivates protesters to march against abortion and war, even as much as it was at the heart of the Civil Rights Movement, itself.
But it is one thing for believers to commit themselves to living extraordinary lives of witness in public spaces such as the marketplace. It is quite a different thing to let our private claims of conscience encroach on the public space of the marketplace, distort what happens there so that we confuse commercial transactions with our most essential convictions.
I heard this interview with an Indiana pastor. This gentleman says that refusing to provide flowers for a gay couple's wedding is not discrimination, it is "exercise of religion." But he is wrong. It is a question of whether to sell flowers.
In addition to providing an exemplary definition of a public space, one of the other reasons why commerce is such an appealing field of activity in which to police for discrimination is because even though public establishments must be public, open to everyone if they are open to anyone, the market also is a venue of choices. Consumers can choose where they do and do not what to shop, and they may choose any public establishment. No merchant is obligated to own a flower shop or a restaurant. That is a choice, too. Neither are merchants obligated to open public establishments. They can choose to restrict their business only to a small, private membership of, for example, only Christians whose souls have been saved.
This description of those choices tells us something. The medium through which merchants and consumers meet in a public marketplace is not race, or religion, or sexuality. It is on a common ground of commerce--buying and selling. Commerce is not proselytization. Selling flowers is neither a Christian nor an anti-Christian act. Offering catering for a wedding is not saving souls. No sale made by a Christian florist or caterer implies an endorsement for how the flowers or the food will be used. It is a sale, simply. I can imagine that decent Christian hardware store owners have sold many murder weapons. Does anyone seriously believe those sales compromise religious belief or implicate the merchants in evil?
Where does it stop?? If someone can refuse service in a flower shop because a prospective customer is gay, why can't a Muslim taxi driver refuse to pick up a woman who is not wearing a hijab? If Christian caterers can refuse service to gay weddings, can Jewish caterers refuse service to Christian weddings?
The real danger of the Indiana law, and the drift of the Supreme Court's jurisprudence, is that public spaces--places where we must take one another as we find one another--are vanishing.
The civil rights tradition is important and great for many obvious reasons. But a less obvious (arguably, more important) reason can be found in the way that it defines places in our diverse culture where we have to put our differences aside and talk to each other, deal with one another no matter how much we disagree. If you're an American, there are some times and some places where it's all-in. No holding back.
The Supreme Court, and the State of Indiana, have begun to shrink that space. In an America where Fox News viewers and MSNBC viewers already have divided into disconnected worlds that never interact, that's not surprising. But it's certainly not good.
Even worse-- shame on those five Catholic bishops of Indiana--and all the other Catholic bishops--who do not see that the Catholic commitment to communio demands something better, and who fail to see that the role of the Church in society is to point believers and non-believers toward something more than walled-off individualism.
In a social context, I cannot imagine anything less Christian than to claim a right not to have to engage with some people.