RFRA

Religious Freedom Is Worth Protecting

RFRAs help safeguard the religious from oppressive government demands.

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Credit: DrGBB / photo on flickr

Gay rights groups and their allies were outraged when Indiana enacted a "religious freedom" measure that let businesses refuse to take part in same-sex weddings and other events they find objectionable.

Opponents of the new law had an unassailable goal: protecting a small group of people from having their freedom trampled by an unsympathetic majority.

Funny thing: That's exactly what religious freedom laws were designed to do.

These laws have gotten a bad name from Indiana—where the legislature didn't place a high priority on such liberty until gay marriage arrived. But they have an honorable pedigree and considerable value. Their point is not to promote mistreatment, but to prevent it.

Consider some of the individuals and groups that have needed relief from oppressive demands: a Muslim prison inmate who felt obligated to grow a beard; an Apache leader whose eagle feathers, needed for sacred ceremonies, were confiscated; Jewish soldiers whose yarmulkes violated military dress codes.

In each case, general rules were adjusted or waived because they inflicted a special injury on particular religious groups—and because the religious needs could be accommodated without noticeable harm.

But in 1990, the Supreme Court turned a deaf ear to such concerns. It rejected the free exercise claims of two Native Americans who lost their drug counseling jobs for using peyote, an illegal drug, in a religious sacrament.

Congress responded by passing the Religious Freedom Restoration Act. It had the enthusiastic support of such liberal stalwarts as Sen. Edward Kennedy, D-Mass., and then-Rep. Charles Schumer, D-N.Y., as well as the American Civil Liberties Union. State versions followed after the Supreme Court said RFRA applied only to the federal government.

But the nature of these laws raises the obvious question: Why should religious people get more latitude than nonreligious ones?

One reason is our constitutional framework. The First Amendment treats religious practices as different from other human activities. In matters of the spirit, the government is supposed to be neutral: It may not restrict religious beliefs or practices, and it may not promote or subsidize them.

For a long time, the Supreme Court took the free exercise of religion to mean that believers should sometimes be excused from requirements applied to everyone else. This fit the constitutional notion of neutrality: Just as the government shouldn't reward citizens for embracing religion, it shouldn't penalize them, intentionally or otherwise.

So the Amish were allowed to keep their children out of school after eighth grade. A Seventh-day Adventist was granted unemployment benefits after losing her job for refusing to work on Saturday, her Sabbath. A Jehovah's Witness who quit his job rather than work in a factory making military weapons was also entitled to unemployment insurance.

Why should the Seventh-day Adventists be spared from working on Saturday while Methodists and atheists have no choice? One reason lies in our constitutional tradition, which gives higher priority to the demands of faith.

Another, though, is that religious obligations are different from other demands. It's one thing to incur the disapproval of your husband, wife or children by going to work on Saturday. It's a bit worse to incur the wrath of an all-powerful God.

To the nonreligious, like me, such fears may look silly. To the believer, they involve the highest possible stakes. "It is no more reasonable to expect serious believers not to act on their understanding of God's will than to expect gays and lesbians to remain celibate for life," says Douglas Laycock, a law professor at the University of Virginia.

Besides, this policy extends beyond the devout. You don't have to believe in God to be exempted from military service as a conscientious objector. You don't need religious reasons for regarding abortion as murder to be free to refuse to assist in one. Some secular demands of conscience are just as compelling as faith-based ones.

Nor is the protection absolute or automatic. Those with a religious objection to a law may ask to be exempted. But when the cost of accommodating that objection is too high—say, allowing racial discrimination or harming children—the objections will be overruled.

Religious liberty, it's fair to say, should not be grounds for stigmatizing and ostracizing people because of their sexual orientation. Gays and lesbians deserve protection from burdens caused by the indifference or hostility of others. But they are not the only ones.

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62 responses to “Religious Freedom Is Worth Protecting

  1. I find no compelling personal, um, I mean, public interest in protecting religious rights.

    1. Would you change your mind if the majority voted to outlaw atheism?

      In the most general sense, religion has to do with living one’s life according to one’s beliefs, or highest values. That applies to most everyone, except maybe nihilists. The first amendment prevents the government from obstructing the free exercise of one’s highest values (as long as they don’t infringe upon other’s rights) and from forcing one to live according to a set of values that person does not believe in. Of course the supporters of the BoR were thinking about common, institutional religions. But I believe it has to do with spirituality (the world of the psyche) in general and should be used to protect people’s values from government control. Controlling one’s mind is the worst sort of tyranny.

      1. Fucking nihilists, dude.

      2. That was actually sarcasm. Too cute maybe, but my point was to show the self interest that dominates much of leftist atheist thinking.

        1. My apologies.

          *reboots sacmeter*

      3. ” Controlling one’s mind is the worst sort of tyranny.”

        …And is therefore the sort that statist lust for the most. Actually even most statist realize that controlling peoples’ inner thoughts is impossible. What they want is to force people to physically violate their own beliefs. Because once a person has done that, most people become docile and easily ruled.

      4. In the most general sense, religion has to do with living one’s life according to one’s beliefs, or highest values.

        But that is not the sense protected by the CRA or the RFRA. The CRA and RFRA in practice effectively only protect established churches and other beliefs that a government official deems valid.

        The fundamental problem with the CRA and RFRA is that they insert government into judging what beliefs are valid and what beliefs are not valid. Once you have done that, the damage is done. It doesn’t matter how well meaning or careful you are about drawing the line between valid and invalid beliefs. CRA and RFRA are the antithesis of what the establishment clause was all about; they are destructive of religious liberty, not supportive of it.

        Would you change your mind if the majority voted to outlaw atheism?

        The Constitution is quite clear: it places a restriction on government when it comes to religion. Government can’t outlaw atheism or Catholicism, it can’t finance state churches, it can’t prefer Christians for immigration, and it can’t outlaw any religions. It does not apply to conduct by any group, organization, or individual other than the government.

        1. If protecting free exercise runs afoul of the establishment vlause, how does the notion of “protected classes” possibly square with equality under law?

          1. Protected classes do not square at with equality under the law. So we shouldn’t treat classes of citizens, nor religious believers, nor any other group differently than everybody else.

          2. Just so.

            The problem arose when the FedGov escaped the bonds of the Constitution, and began micromanaging everything, which inevitably meant that federal law was going to require someone to violate their religious beliefs.

            You can’t have both (a) a plenary Total State and (b) freedom of religion. You just can’t.

            And, as always, the only possible solution is more government – de facto establishment of religion(s) that will be granted privileges by the feds. So we manage to junk both the Free Exercise Clause and the Establishment Clause. Just wonderful.

          3. I don’t understand the question.

            The free exercise clause says that government shall make no law prohibiting the free exercise of religion. Nowhere does it say that the government should make laws “protecting free exercise”. It isn’t the job of government to “protect free exercise”.

            And the notion of “protected classes” doesn’t square with equality under the law.

    2. “personal, um, I mean, public interest ” That is exactly right. People voluntarily turn a blind eye to this sort of thing (yes folks, the same motives, flaws and blindspots as a libertarian society would grapple with.)

      I have no personal interest in drug convictions, robberies of drug dealers, prison rapes and police shooting their panicked victims, therefore um, there is no public interest. The law is for protecting me and mine, it has nothing to do with people most exposed to malicious actions.

      First they burned the fags, and I said nothing because it only happened once and nobody else saw it.

  2. Only if it is punched-down Muslims.
    – Gary Trudeau

  3. Some secular demands of conscience are just as compelling as faith-based ones.

    Can we demand protection from Statists? They’re quite busy with a Holy War against apostates dissenters.

  4. It would have been nice if the bible bangers from the 80’s who ruined the 70’s could’ve realized that payback was going to be a bitch.

    With that said what is currently happening is not right

    1. Yeah, it’s all Puritanism. The rules change but the intolerence stays the same.

    2. The 80s weren’t nearly as puritanical as you say they were. Remember, we had whippets.

      1. I do remember whippets:)

        1. Whippet good.

          /Mongo

      2. The 80s weren’t nearly as puritanical as you say they were.

        How did the “Decade of Decadence” gain any connotation of Puritanism?

        1. Probably for the same reason that people took to calling it that. Puritans like nothing better than ruining a good party.

  5. when the cost of accommodating that objection is too high?say, allowing racial discrimination or harming children?the objections will be overruled

    , and will thereby incur the wrath of an all-powerful God.

    1. I still say the reason the rains won’t come to California is that they haven’t been sacrificing enough children to Tlaloc.

      1. I’m surprised they haven’t outlawed droughts.

        1. Instead they outlawed people.

        2. Why are you surprised? We keep having droughts. That is a failure of government and a failure of capitalism. We need the fed to make it rain.

      2. The hyperloop will bring the rain!

  6. The reason to protect religious freedom is that it is basically just another word for freedom of religious belief …. which in turn is just an example of freedom of belief in general.

    Those that can’t stand this simple concept and simply oppose this because it is religion are a bunch of idiots. Those that go to level of being libertarian are an actual amazement.

    The key here is to ALWAYS push the freedom of belief as the primary concept so as not to be seen as or actually discriminating for religious belief only !

    1. which in turn is just an example of freedom of belief in general

      It may be an “example of freedom of belief in general”. But we don’t protect freedom of belief in general (it’s not part of the CRA), we only protect religious beliefs (and a few others).

      Those that can’t stand this simple concept and simply oppose this because it is religion are a bunch of idiots

      I oppose the RFRA because it is hypocritical; combined with the CRA, it allows people to use religion to discriminate against others while still granting religions protection from discrimination.

      The key here is to ALWAYS push the freedom of belief as the primary concept so as not to be seen as or actually discriminating for religious belief only !

      You are not going to “push freedom of belief” as a political concept if you give big, wealthy, powerful special interests like churches special rights and protections while denying them to others.

      1. It allows an individual to defend himself against a charge of discrimination by exercising the option to question the state’s involvement vs. his own freedom of conscience. If you want to construe that as blatant discrimination, be my guest, but let’s not pretend the state’s steamrolling an individual over the matter is the moral equivalent to one individual declining to serve another.

        1. It allows an individual to defend himself against a charge of discrimination by exercising the option to question the state’s involvement vs. his own freedom of conscience.

          And that puts the state in the position of determining whether his conscientious choice is legitimate or not. That is wrong.

          let’s not pretend the state’s steamrolling an individual over the matter is the moral equivalent to one individual declining to serve another

          I think it is perfectly reasonable for one individual to decline serving another. It just has to work that way for all individuals. The situation right now is that churches continue to demand that nobody can refuse to serve them, but their members can refuse to serve others. That is not right. And that’s the situation the CRA and the RFRA are creating.

      2. Freedom of belief or its essence is in the bill of rights first amendment. That’s all I need to your other so called problems are just that only.

        1. You aren’t arguing for freedom of belief, you are arguing for freedom of belief for a few powerful special interests. That’s wrong.

          1. Read again !!! I said to emphasize freedom of belief …. but that sill means the existence of that freedom for religious people too !!!

            Geeez

  7. How far does “protection” go?

    Can a business be legally compelled to servr a nudist, or a BDSM convention, or NAMBLA event despite moral.disapproval of what those groups and events celebrate?

    1. This can go as far as the concept of freedom of association carries you …. then you have to admit that you indeed do not support the concept or that the association was not compatible with the word freedom …. like slavery.

      1. Freedom of association does not extend to private property. No one should have the right to infringe on the rights of another–which slavery clearly does.

    2. No. Only the kinds of people Chapman and his buddies approve of are protected from other people’s moral disapproval.

    3. I would argue, no, because the 13th Amendment abolishes involuntary servitude.

    4. Just ask Steven Chapman. He’s got the ranking of protected interests all figured out, or if not, he’ll figure them out for you on the spot.

  8. Carving out exceptions for religious beliefs is not “neutral” and violates the “respecting an establishment of religion” clause. Instead of doing that, we should have more freedoms for everybody.

    1. So, the “establishment clause” negates the “free exercise” clause?

      That is one helluva catch, that Catch-22.

      1. So, the “establishment clause” negates the “free exercise” clause?

        In a Total State, you certainly can’t have free exercise, and any attempt to protect it violates the establishment clause.

      2. So, the “establishment clause” negates the “free exercise” clause?

        No, not at all. The two clauses are:

        Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

        Those are simple, consistent requirements: don’t make this kind of law and don’t make that kind of law. There is no Catch-22 and no contradiction. It’s easy to comply with both instructions simultaneously.

        If it said that government were obligated to protect the free exercise of religion, then there would be a contradiction. That’s why it doesn’t say that. The fact that we have laws protecting the free exercise of religion violates the establishment clause, because once you have those laws, government invariably gets into the business of deciding which religions take precedence over others when there are conflicts.

    2. This. A law that can be wiggled out of by a “religious objection” is probably coercive and unnecessary to begin with.

  9. Summary: “Religious freedom is good. Gays and lesbians deserve protection. Think of the children! I have nothing of substance to say.”

    Steve Chapman engaging in social signaling again. Why that moron keeps getting posted on Reason, I don’t understand. He is clearly not a libertarian, and he has nothing substantive to say.

    1. Gays and lesbians deserve protection ? How come no one else is listed … or even all individual entities ? Of course that protection supposedly comes in our rights.

      I am shocked you didn’t want to protect blacks and bi-sexuals too 😛

      1. I am shocked you didn’t want to protect blacks and bi-sexuals too 😛

        See those little funny looking symbols that look like chicken scratches? They are called quotes. I was quoting and paraphrasing Steve Chapman.

        1. Is that why you chose to mis-read what I said above ? 😀

  10. My god requires working on Sundays, but that’s because I worship the almighty dollar.

  11. I understand RFRA about as much as I understand net neutrality. Maybe the control freaks should just butt the fuck out and do the actual job the Constitution describes.

    Silly me.

  12. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ?????? http://www.netjob80.com

  13. Here’s a radical idea: get the government out of deciding with whom we can or cannot associate and allow everyone to incur the consequences of such decisions. If you don’t want to work on Saturday, for whatever reason, fine. But don’t expect unemployment benefits if you’re fired because of it. If you don’t want to serve gays, or tall people, or anyone else, have at it.

  14. “But when the cost of accommodating that objection is too high ? say, allowing racial discrimination or harming children ? the objections will be overruled.”

    So it’s not OK to racially discriminate but it’s OK to discriminate in other ways? Is this supposed to be self-evident? A cogent explanation sure would be nice.

    Speaking of self-evident, does Chapman really feel it advances his argument that we shouldn’t be allowed to harm children in these cases? Harming people has nothing to do with the issue. It’s about free association. It almost implies that he feels it’s OK to harm children in some circumstances, just not these.

    1. It’s always funny to me watching people try to explain how that gay couple with the wedding cake or the hypothetical gay couple wanting pizza for their wedding, were actually harmed by having that service refused to them by that one specific bakery or pizza shop. I mean, all they had to do was say, “Fine. I’ll take my business somewhere else.”

  15. I get paid over $87 per hour working from home with 2 kids at home. I never thought I’d be able to do it but my best friend earns over 10k a month doing this and she convinced me to try. The potential with this is endless. Heres what I’ve been doing,

    ———– http://www.work-cash.com

  16. The core of this issue is two things one; there is no difference between a business, someone conducting themselves in a business mannner (selling things on ebay or the local flea market, etc), and an individual. the idea that once you are selling something you suddenly have not rights is ridiculous. Once you can clearly understand this is about individuals you must ask yourself this ( the answer should be obvious if you are on this website) do you feel the government should compel people to do things against their will?
    As soon as this issue came up every libertarian became a progressive statist that wants to centrally plan the whole world. Everyone has the right to be a bigot or a saint.

  17. Why should the Seventh-day Adventists be spared from working on Saturday while Methodists and atheists have no choice? One reason lies in our constitutional tradition, which gives higher priority to the demands of faith.

    Uhm…

    How does firing someone for refusing to work on Sat. violate their religious freedom? Are they not still free to observe their sabbath as they see fit? Do they not have the freedom to find another job with Sat. off?

    Or, are you advocating for a religious freedom right to force employers to give special treatment based on employees’ various religous beliefs/practices?

  18. I’m a Christian and after all this RFRA stuff I am wondering whether it was wise to grant special rights to religions in the Constitution. Perhaps, because of the recent, to them, history of wars between Protestants and Catholics, the framers were trying to explicitly avoid such conflicts in the US. But in the process they opened a can of ‘rights’ worms.

    If individuals are recognized to have rights, isn’t that enough? Playing the devil’s advocate here, for educational purposes only, what would be gained and what lost by just saying, “Individuals have all the rights not explicitly granted to the government, and groups have no rights except as the government”?

    In what way would that not be practical? Or not libertarian?

  19. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do….. ????? http://www.netjob80.com

  20. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do….. ????? http://www.netjob80.com

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