The explosion of criticism against Governor Mike Pence and his state, in the aftermath of Indiana passing a state version of the federal Religious Freedom Restoration Act, is quite telling in several respects.
The first is that there’s a great deal of misunderstanding of what the law does, as this editorial in the Wall Street Journal from earlier this week makes clear. The Indiana law is a version of the federal Religious Freedom Restoration Act (RFRA) that passed the Senate by an overwhelming margin in 1993 (97-3) and was signed into law by President Clinton. As the editorial puts it:
Individuals must show that their religious liberty has been “substantially burdened,” and the government must demonstrate its actions represent the least restrictive means to achieve a “compelling” state interest. Indiana’s law adds a provision that offers a potential religious defense in private disputes, but then four federal appellate circuits have also interpreted the federal statute to apply to private disputes.
If florists or wedding photographers don’t want to work a gay wedding based on their religious convictions, under the RFRA test,
such a commercial vendor would still have to prove that his religious convictions were substantially burdened. And he would also come up against the reality that most courts have found that the government has a compelling interest in enforcing antidiscrimination laws. In all these states for two decades, no court we’re aware of has granted such a religious accommodation to an antidiscrimination law. Restaurants and hotels that refused to host gay marriage parties would have a particularly high burden in overcoming public accommodation laws.
The RFRA law, then, is a careful, prudential law, attempting to balance competing claims and interests–and in any event, the type of cases we’re focused on involving florists and wedding photographers is extremely rare.
Whatever you think about Governor Pence (and I think he did a very poor job of defending his actions on ABC’s This Week on March 29) and the decision by florists and photographs to boycott gay weddings, what is most alarming to me, and should alarm you, is the rising intolerance and mob mentality that is evident on the left.
We saw it in the Mozilla case, in which the CEO, Brendan Eich, was forced out after having given money in support of a California referendum supporting traditional marriage, as well as in the effort to target (possibly through the denial of accreditation) Christian colleges like Gordon, whose Life and Conduct Policy limits students and employees to sexual activity in the context of marriage, defined as the union of one man and one woman. “Never mind that the policy allows any person of any sexual orientation to attend Gordon, teach at Gordon, or serve in its administration,” as David French of National Review writes. “The fact that its Life and Conduct Policy prohibits ‘sexual relations outside marriage’ and ‘homosexual practice’ (explained as ‘sexual intercourse’) was enough to take action, to declare it bigoted and not fit for inclusion in society.”
This is a deeply illiberal impulse, aimed at the core of American freedom (religious liberty), and if it is not checked, it will do tremendous damage to our civil culture as well as to our basic freedoms. To be sure, this illiberal impulse isn’t characteristic of everyone who champions gays rights (Jonathan Rauch is an admirable example). And I’ve pointed out before where I think evangelical Christians have erred in their cultural engagement, in ways that I believe are both counterproductive and at times deeply at odds with the spirit of Christian faith.
But that is only part of the story; and the case of Indiana is only the latest example of a crusading and authoritarian mindset on the left, which is both quite worrisome and potentially explosive. It is one thing to have differences over issues like gay marriage, which intelligent and honorable people can disagree on. It is quite another to try to force Christians to choose between progressive orthodoxy and their deeply held (and centuries-long) religious beliefs–and to punish them if they refuse not only to support gay marriage but actively participate in ceremonies. As my Ethics and Public Policy Center colleague Yuval Levin has written, if reasonably possible “people should not be compelled as the price of entry to the public square to honor as true what their understanding of their religious obligations compels them to judge false.”
That is what some on the left seem determined to do–and if they keep doing it, this won’t end well.
