RFRA Indiana Version

04-19-2015Fr. John LettersFr. John

Dear Friends,

So the Indiana Governor signs into law a state version of the Religious Freedom Restoration Act (RFRA) and gay freak out ensues, political propaganda feeding mob hysteria. Here in AZ we experienced a similar brouhaha in March 2014 (I explained it all in my letters of 2 & 9 March '14). Simply put the original RFRA was first signed into law by President Clinton after almost unanimous congressional support. It was one of the few times that Congress was able to effectively reign in the power of the Supreme Court by restoring the "balancing test" that the court had used for decades in deciding cases of religious liberty but jettisoned in a 1990 Court case.

That case involved a small Native American group that used a psychoactive substance in their religious services. The substance fell under the Controlled Substances Act and therefore was illegal to possess. The court ruled that a law of general applicability like the Controlled Substances Act did not specifically target religion and therefore in this case trumped religious freedom. In other words a religious exemption could not trump a law of general applicability. Up to that case the court had used the "balancing test" to see if government had a strong enough compelling interest to restrict religious rights, the balance between governmental interest and religious liberty. After that ruling the liberals and conservatives in Congress got up in arms and accused the court of restricting religious liberty. Hence was born the 1993 RFRA.

The RFRA includes the word "restoration" since it sought to restore the earlier jurisprudence standard. The law itself is crafted very well. In a nutshell it says that in order for the government to substantially burden someone's or a groups religious practice it must have a compelling reason to do so and must do it in the least restrictive way possible. This law applies only on the Federal level and each state must pass its own version if it chooses. AZ has its own version of RFRA and in March of 2014 tried to tweak it when all hell broke loose.

The tweaking of the law was intended to include disputes that arose not only between government and individuals but also between private individuals. Basically the law would allow a person to use in court a religious practice defense in a lawsuit. It does not mean you will win, just that the law recognizes religious practice as a legitimate defense. In fact in the few cases it has been invoked as a defense for refusal to participate in a same-sex wedding ceremony the defendants have lost.

The question to ask is why in the 1990's the law was so highly applauded but in 2015 it has been demonized? The reason is that in the 1990's the law helped out a favored constituency of many (Native Americans) but in 2015 the law has been used to help a non-favored constituency (religious believers especially Christians.)

It is also important to note that the "balancing test" that now is under assault is used in most courts in free societies today. In fact most free societies realize that balancing governmental interests and individual religious liberty is important to keep us free and prevent the slide into totalitarianism. From that point of view it is ironic that so many voices in "the land of the free" want to trash the standard. The freedom to live by one's conscience is absolutely foundational to a free society.

The RFRA itself says nothing about gays or same-sex marriage but for some reason a contrived crisis of gay discrimination has been advanced and "religious liberty" is now code word for gay discrimination. This is a completely outlandish idea as RFRA covers a large swath of issues. The law was most recently used successfully to defend a Muslim prisoner who wanted to grow a beard while incarcerated. It also was used successfully to defend Hobby Lobby in the contraception mandate case and it is frequently used to protect medical providers from being forced to be complicit in medical procedures that violate their conscience. The insistence that Indiana's law was solely designed to make it difficult to have a caterer, a florist or a photographer at a same sex wedding shows how incredibly self-centered the gay community can be. The vicious attacks on the Pizza Shop owner who said his moral beliefs would prohibit him from participating in a ss wedding reveal a very hateful side to the gay community. Add it all up and it shows us that any thought that we could reach an accommodation in our society to respect each other's position is gone. Put it this way if you are unwilling to dance with the groom and groom expect the full force of the government and social media to be used against you.

One final point, you may recall that when Hobby Lobby made the argument that businesses or corporations have religious or conscience rights they were laughed out the room. Well now really big corporations like Wal-Mart and Apple rushed to condemn Indiana's version of RFRA as morally offensive and threatened not to do business there. So it seems that corporations do have more than profit as their reason for being. Once again the same crowd that claimed that Hobby Lobby had no moral or religious claim to influence its business practice are all applauding Apple and Wal-Mart for using moral principles to influence their business decisions.

What would happen without a RFRA is that at a certain point religious believers will simply be excluded from many professions. The physician who refuses to perform an abortion or euthanize his patient will be told he is disqualified from practicing medicine. Those who hold the position that marriage is between one man and one woman will be disqualified for all sorts of jobs if not polite society itself. And of course it could always go the opposite direction and those who trash RFRA ought to consider that. If everyone's voice is not heard in the public square and only one side is allowed to speak we begin the slide towards totalitarianism.

Love, Fr. John B.

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