Religious Freedom

Yesterday, I read the story about the Goergia Governor, Nathan Deal (R) who, as the Post reported it, "vetoed a controversial religious liberties bill."  One could almost admire his courage, given that he is a governor in a state where the vote of the evangelical right matters.  "I do not think," he said, "that we have to discriminate against anyone to protect the faith-based community in Georgia."

I say, "almost admire," in part because he was pressured into the veto by "outrage from Hollywood, sports leagues and corporations for what critics said was its discrimination against gay and transgender people."  The NFL suggested it "might pass over Atlanta for future super bowls, and leading Hollywood figures threatened to pull production from the state."   If the god of Isreal  is great, the god of mammon is perhaps greater, and one might think the republican governor sacrificed the former on the alter of the latter.

I say, "almost admire," in part because one might have admired him more if he had stuck by his guns (pun intended) and signed the bill into law.   The North Carolina governor, as reported by the LA times, "where Gov. Pat McCrory vowed to defend a new state law that prohibits legal protections based on sexual orientation and gender identity, even as civil rights advocates filed a lawsuit Monday to strike it down."  If McCrory swapped places with Deal, one wonders if he would have buckled to the pressures of almighty NFL and Hollywood?  Probably, but that is a matter of speculation.

Don't misunderstand me.  I find the anti-discrimination laws themselves somewhat saddening.  Every time we fail to act in concert with our own better angels, every time we must enact legislation forcing the decent treatment of others, then one should be saddened.  I believe such laws serve as a reminder of our failure as moral and ethical human beings. Nevertheless, I recognize the necessity, even though the necessity creates its own set of equal and opposite resentments -- those who feel that "protected" minorities are not only given "protection" under the law, but "advantages" under the law.

I find the "religious liberties" laws even more saddening.  The Georgia law, the exact title of which is "Georgia Religious Freedom Restoration Act," is worth dissecting a bit.  In it, the law acknowledges that "government has a fundamental, over-riding interest in eradicating discrimination," and in that way acknowledges the necessity (perhaps) of anti-discrimination statutes.   I can hardly disagree. Having said this, however, it also says that "The framers of the United States Constitution and the people of this state, recognizing free exercise of religion as an inalienable right, secured its protection in the First Amendment to the United States Constitution and in Paragraphs III and IV of Section I, Article I of the Constitution of this state, respectively."  Again, though I firmly believe that no good whatsoever comes of government sanctioned religion, I can hardly disagree that the constitution, in its wisdom, allows for the private practice of religion and that "governments should not substantially burden religious exercise without compelling justification."  

The crux of the law, however is this:  "The compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests."  Religious liberty is given very wide berth by the law, insofar as the "exercise of religion," as defined by the law, is "any exercise of religion, whether or not compelled by, or central to, a system of religious belief" -- that is to say, pretty much anything goes.  If I say I'm "exercising my religion," well then, I'm exercising my religion, and I don't need to show that it is the recognized doctrine of any established denomination.  The "competing prior governmental interests" are, of course, "eradicating discrimination," but the government has a "compelling interest" in doing so before limiting any "exercise of religion."  Finally, the coup de grace comes with the following:  "in City of Boerne v. Flores, 521 U.S. 507 (1997) the Supreme Court held that the compelling interest test provided for in the federal Religious Freedom Restoration Act must be adopted by a state through legislative act or court decision in order to apply to state or local government action."  In other words, the state can adopt anti-discrimination laws, but local municipalities or government agencies cannot.  As a consequence, any local law is struck down.    
   

Here's the thing.  Let us say I own an apartment building.  I do not, but let's just say I own an apartment building.  It is a large building, and I occasionally use its "common space" for religious observances.  I am not, but let's just say I'm of a religious stripe that believes homosexuality is a "sin" prohibited by the bible in Leviticus 18:22.  In my world view, "moral behavior" is the same thing as "obeying the law of god," and as a consequence, as a moral man obedient to the law of god, I should not only avoid homosexual acts for myself, but abhor the homosexual acts of others.   Though I wish to, I cannot stone homosexuals to death in the public square.  I do, however, own this apartment building and, in my self-proclaimed "exercise of my religion," I CAN demonstrate that obedience by refusing them a lease.  It's perhaps convenient that my refusal will likely be supported by other tenants of the building, but so much the better.  We can be good christian people together in our "casting out" of the abhorrent homosexuality.   Insofar as "government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," any generally applicable anti-discrimination law inhibiting my ability to "cast them out" is an infringement of my freedom to worship as I choose, an infringement of my religious liberty, and consequently illegal.

In short, in case we missed it, the paradox, the conundrum, is this: the "Restoration of Religious Freedom Act" opens the door to a wide range of discriminatory acts, it might restore "religious freedom," but in doing so it allow those "exercising their religion" to deny basic rights to others under the "protection" of religious freedom.   There is, of course, no end to this.   There is Matthew 13, and those who do not worship christ are, by definition, against christ, and of course we cannot have buddhists, muslims, or (even worse!) godless atheists among us.  Although they are protected in their "right" to worship as they choose by the first amendment, those who would restore religious freedom likewise want the "right" to worship as they choose.   Of course, then too, one can hear McCrory and those who support him saying "As a shop owner, I don't want them shopping here.  As an employer or business owner, I don't want to employ them."  So on and so forth.  Any law that infringes my "exercise of religion," which is pretty much whatever I say it is, can at least be litigated.  It is, of course, a classic slippery slope and we soon slip and slide into the morass of Jim Crowe like practices, if not laws.  I'm cynical enough to believe the framers of the law know this.

There is a counter argument.  One can hear them say, "I'm not denying their basic rights.  I just don't want them here, in my apartment or store or workplace, but they are always free to go elsewhere."  The question, of course, is where?  If a sufficient majority of apartment owners and dwellers feel as McCrory and his followers feel, however, then their access to shelter is greatly diminished.  One might imagine a number of apartment owners who are homosexual themselves, but one imagines they will be in a significant minority, and to confine potential shelter to those would eventually create at best enclaves, at worst ghettos.  Adams and our founding fathers legitimately feared the "tyranny of the majority," or ochlocracy, because, well, the herd instinct prevails, and it doesn't take much of a demagogue to set the majority of the herd against a minority, particularly when there are biblical or other supports for the behavior of the herd, particularly when such biblical authority is buttressed with the fear and loathing of simple bigotry.  As the drafters of the law recognize, at least, Adams and our founding fathers understood that majorities simply do not need protection in the same way that minorities need protection, even if protecting the basic rights of the minority infringes on the majority's perfect freedom to do as they please.

Having said all this, the law does point to a central fault line running through the GOP party, the pernicious alliance between "big money" and evangelical religion.