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Martin Dyckman: Religious freedom isn't license to discriminate

The original Religious Freedom Restoration Act – RFRA for short – was intended to protect faith-based practices from unnecessary government interference. That’s the opposite of trying to use it to justify faith-based discrimination against others. But of course irony and hypocrisy are hardly strangers to politics.

Congress enacted RFRA in 1993 in response to the Supreme Court’s dismissive treatment of the First Amendment in a case involving the illegal hallucinogen peyote, which to the Native American Church is as sacramental as the wine in many Christian and Jewish rituals.

Two men who had lost their jobs – as drug counselors – for ingesting peyote during a Native American ritual sued Oregon for denying them unemployment compensation. They argued that the state law interfered with the free exercise of their religion, as guaranteed by the Bill of Rights.

But Justice Antonin Scalia, writing for a majority of the U.S. Supreme Court, said the First Amendment didn’t matter because the peyote ban was in a general law applying to everyone rather than one aimed at religion.

Scalia likened the case to one in which the court denied an Amish employer a religious exemption from collecting and paying Social Security taxes. The Constitution allows but doesn’t require religious dispensations, he said.

To leave such issues to the political process, he acknowledged, would disadvantage “those religious practices that are not widely engaged in.”

But he accepted that as an “unavoidable consequence of democratic government.”

In so saying, Scalia trashed decades of precedents in which the court had held that to impose a burden on religion, government must show a “compelling state interest” that could not be met in any less restrictive way.

Although four other justices agreed that Oregon had a sufficiently compelling need to prohibit peyote even in a religious ritual, they were alarmed by the majority’s view that the state didn’t even have to show it.

Writing what was effectively a dissent, Justice Sandra Day O’Connor deplored the court’s “strained opinion” of the First Amendment. When any law puts a substantial burden on someone’s religious practice, she argued, the state should be required to articulate a greater compelling interest.

“In my view,” she wrote, “the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility.”

She cited the court’s landmark 1943 decision that West Virginia schools could not expel Jehovah’s Witness children for refusing to salute the American flag.

Leaders of many faiths were horrified by the prospects. If some locality wanted to ban the serving as well as the sale of alcohol on Sunday mornings, could communion be criminalized? If do-gooders opposed to male circumcision had their way, would the most ancient Jewish and Islamic covenant be illegal?

A broad coalition of faiths representing liberals and conservatives formed to lobby for what became RFRA, a law restoring what the Constitution meant before Scalia.

Simply put, government may “substantially burden” a person’s exercise of religion only in “furtherance of a compelling governmental interest” and then only if it does so with the “least restrictive means.”

After the court ruled that Congress could not apply RFRA to state and local government, the coalition lobbied legislatures. Nineteen states, including Florida, enacted laws of varying quality. Notably, Indiana didn’t act until same-sex marriage became an issue, which called its motives into question.

RFRA owes its existence in large part to Brent Walker, a Tampa native who is executive director of the Washington-based Baptist Joint Committee for Religious Liberty, (to which I contribute modestly).

Name any church-state issue, such as school prayer or vouchers, Walker and the Committee have likely been involved on the liberal side. It’s a role that calls for the logic of a lawyer and the empathy of an ordained minister, and Walker is both.

He is critical of states that try to skew the model law away from its delicate balance, such as Indiana did before amending it under intense pressure. The initial enactment differed in four key ways from the federal statute, including a provision applying it to disputes between private parties.

(In saying that the first Indiana law was the same as Florida’s, Jeb Bush might as well have admitted to reading neither.)

Walker wrote strongly on the subject two months ago after the legislatures of Indiana, Georgia, North Carolina and other states began introducing distorted versions that strongly appeared to sanction discrimination against same-sex couples.

“Doffing my lawyer’s hat and donning my pastor’s hat,” Walker concluded, “I want to preach a little and suggest another way short of litigation.”

“To our LGBT friends with the astonishingly rapid-dawning first opportunity to marry in our country’s 225 year history, try extending some grace to those who have religiously informed objections to same-sex marriage, and if the baker or florist does not want to provide you a cake or flowers, move down the street and give your business to someone who will.

“To our conservative Christian friends: with religious liberty protected in this country like no other place in the world, try loving your LGBT neighbors (not even talking about your enemies) unconditionally, and understanding that providing them goods and services in the marketplace is an act of hospitality, but it does not indicate approval of their nuptial decisions or their sexual orientation.

“It seems to me this a better way for good citizens and good Christians to resolve conflict in the public square.”

Is anyone listening?

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives in western North Carolina. Column Courtesy of Context Florida.

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