RFRA: Indiana, Arkansas, and Bill Clinton

A friend of mine posed the following question to me: What if a neo-Nazi group walked into a Jewish-owned bakery and ordered a cake with, "Happy Birthday Aldof" written across the top? Or, what if the local chapter of the Ku Klux Klan ordered a cake with "Keep our Kountry Klean" on it from a bakery owned by African-Americans? Could either bakery refuse to serve them because the what was being asked of them violated their beliefs? And if so, how does that differ from conservative Christians refusing to bake a wedding cake for a gay or lesbian couple's wedding? I didn't have a good answer for my friend (and if you're wondering, he attends a "open and affirming" church), probably because there isn't a lot of difference between the two scenarios.

However, we don't even have to envisage Jewish or African-American owned bakeries. Simply imagine a bakery owned by a secularist who has serious moral problems with neo-Nazis celebrating Adolf Hitler's birth or the Ku Klux Klan pining for an all-white America. Can he refuse service to those groups on moral grounds? Put differently, can he bake cakes for them in good conscience? My guess is no, but can the state force him too? Possibly.

Interestingly, Indiana and Arkansas are not the first states to pass such religious freedom bills. In fact, they are the 20th and 21st states. The legislation is based on the Religious Freedom Restoration Act (RFRA) that was passed by Congress and signed by President Bill Clinton in 1993, and the reason why so many states are passing their own RFRAs is because that in 1997 the U.S. Supreme Court ruled that RFRA only applied to the federal government. The legislation does vary from state to state, and the Baptist Joint Committee on Religious Liberty, a church-state watchdog group that I have blogged about previously ("The Top Religious Liberty Stories of 2014"), released a statement that argues, in part, that the Indiana and Arkansas RFRAs do not adequately balance the rights of religious claimants with those of third parties:

The federal Religious Freedom Restoration Act and state RFRAs are important to ensure heightened protection for religious liberty for all. State RFRAs should mirror the delicate balance achieved in the federal law. Both Indiana and Arkansas passed legislation that falls short of that goal in several ways, tilting the balance in favor of religious claimants and against the government’s ability to protect other compelling interests. RFRAs allow us to protect religious liberty with an eye to the well-being of society and rights of third parties, including civil rights of the LGBT community and others.

Balance is a key idea here. Peoples' rights are not unlimited. They can only be exercised up to the point that they do not infringe upon the rights of others, and striking the balance between the rights of different groups is not easy. In fact, I suspect our federal and state courts and legislatures often get it wrong.

Still, I can't help but think that some of the balancing reflects underlying notions of what we believe is good and just and right. In other words, most of us probably support a baker's right to refuse service to neo-Nazis and the Ku Klux Klan because they embrace values contrary to our notion of what is good. However, when it comes to the right of a baker to refuse service to a gay and lesbian couple, we are much more divided because a larger proportion of the U.S. supports the right of gays and lesbians to marry and a larger proportion doesn't. Notice now, however, that the debate is no longer about rights and balancing but about the morality of gay and lesbian marriage. That is a very different topic and one that I don't think will be settled (so to speak) anytime soon.

Acknowledging this divide, however, might help lead to compromises in terms of balancing the rights of different groups. In fact, the recent civil rights legislation passed in Utah may provide a model of a possible road ahead ("Utah Compromise Worth Consideration"). Compromise certainly sounds better than shoving one's morality down someone else's throat, regardless of whether it's rooted in a set of religious beliefs or a secular philosophy.