Can’t I Support Gays and Religious Freedom? - The American Spectator | USA News and Politics
Can’t I Support Gays and Religious Freedom?

I’m a not particularly religious Jewish libertarian, which means — if you wouldn’t have guessed — that I don’t have a moral objection to, nor a public policy framework for, homosexuality.

But the reaction by many others who aren’t social issues conservatives to Indiana’s new Religious Freedom Restoration Act — modeled on a federal law sponsored by liberal Democrat Chuck Schumer (NY), passed 97-3 in the Senate in 1993, and then signed by President Bill Clinton (while Democrats still had majorities in both houses of Congress) — borders on the insane.

The NCAA wondered how the new law would negatively impact the upcoming Men’s Final Four in Indianapolis. The obvious answer: it won’t.

Openly gay actor George Takei (of Lieutenant Sulu fame from the original Star Trek series) is “demanding that socially responsible companies withdraw their business, conferences and support” from Indiana.

Liberal bloggers, in a typical mindless reaction, are calling for boycotts of products made in Indiana. CEO Marc Benioff blocked any corporate travel to Indiana by his employees and, on Twitter, encouraged other CEOs to do the same. One wonders if he’ll also block travel to Connecticut or Illinois or the seventeen other states that have laws roughly identical to Indiana’s. (States passed their own RFRAs following a Supreme Court decision that said the federal law applies only to the federal government. A further eleven states have seen court decisions that theoretically implement RFRA-like protections.)

Benioff was one of the first and loudest voices to imply that Indiana’s law somehow means that his customers or employees there will undoubtedly “face discrimination.” It troubles me greatly to see a fellow Jew offer little more than libel and character assassination of devout Christians. More importantly, there is no basis for Benioff’s fear.

A 2010 study by law school professor Christopher Lund found that of the sixteen states which had RFRA laws at the time, “Perhaps most surprising is the paucity of cases decided under state RFRAs thus far.… [F]our states have never decided even a single case under their state RFRAs, and another six states have decided only one or two. In most jurisdictions with state RFRAs, plaintiffs have not won a single case litigated to judgment.” Overall fewer than half of plaintiffs bringing a RFRA-based defense have prevailed.

One case that should have offered a perfect RFRA defense was that of Elaine and Jonathan Huguenin, wedding photographers from Albuquerque whose religious views caused them to refuse to photograph a same-sex wedding. Separate from the question of what petulant couple would want to force an unwilling person to take pictures of their wedding — imagine all the accidentally out-of-focus photos and pictures of the brides with chocolate cake stuck in their teeth — coercing a private business person to violate his or her religious conscience hardly seems the least burdensome way for government to achieve its interest, even if you were to accept the interest as compelling, both of which are requirements under New Mexico’s RFRA. After all, there are plenty of other wedding photographers in New Mexico. (I would know; my wife and I got married there.)

But not only did the Huguenins lose. In the State Supreme Court they lost unanimously with one sanctimonious justice, Richard Bosson, noting — in concurrence, not dissent — that they “now are compelled by law to compromise the very religious beliefs that inspire their lives.”

As Professor Lund deduced and as this case demonstrated, “There is reason to doubt whether these state-level religious liberty provisions truly provide meaningful protections for religious believers.”

The fact that courts continue to let “anti-discrimination” provisions of state law trump RFRA-based defenses means that RFRA laws offer far less protection for religious principles than advertised. This makes it particularly disappointing that Indiana’s two most important Republican legislators — their senate president pro tem and their speaker of the house — announced in a Monday press conference that they would attempt to “update” their state’s new law by passing a bill that would prevent “discrimination” against gays and lesbians.

Frankly, if RFRA is kneecapped so that a religious Christian can still be forced to provide a service to a gay wedding to which he has a strong moral objection, the law is pointless and the judicial system is lost.

Apple’s Tim Cook (who came out as gay five months ago) heeded Benioff’s siren song, writing a Washington Post op-ed proving only that he should stick to technology, arguing that RFRA laws are “pro-discrimination” and that they “go against the very principles our nation was founded on.”

Cook goes on to say that Apple opposes discrimination of all forms and at all times, for which I applaud the company. But despite the ubiquity of iPhones, Apple and “our nation” are not synonymous.

Even a cursory study of American history teaches that freedom to live by your religious principles is an important — and perhaps the most fundamental — precept of the founding of the United States of America.

I assume that the principles Tim Cook is talking about relate to equal protection under the law as laid out in the 14th Amendment, enacted in the aftermath of the Civil War and the freeing of the slaves.

It is ironic that law which emanated from our ending the ability of one person to coerce another person to do something he didn’t want to do is now the left’s basis for coercing someone to do something he doesn’t want to do.

Americans have lost recognition of the difference between government action and private action. While government should not be allowed to discriminate, the use of government threats to force a private person to violate his deeply-held religious views is the height of intolerance yet that is the position of so many liberals who at all other times pine for “tolerance” and “diversity.” (I do not accept the argument that opening a business suddenly makes someone a “public accommodation” and makes individuals’ beliefs irrelevant.)

In the New Mexico case, Judge Bosson said that the ruling “teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others.” I disagree, particularly when the compromise comes at the point of a government gun.

He added that the photographers “have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different.” In other words, per this judge, they must behave contrary to their beliefs because “it is the price of citizenship.”

No, sir, your view is a reprehensible misunderstanding of what the United States of America is. There need not be — indeed there must not be — any such price, at least not in a country that was founded to be the Home of the Free.

I encourage Indiana Republicans to strengthen, not weaken, their new religious freedom law and remind themselves that free expression of religion is in the FIRST Amendment to the Constitution for a reason, whereas I seem to have missed the section about the right to demand wedding photographs.

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