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Larry Beinhart's Body Politic: Ah, The Restoration of Religious Freedom 

click to enlarge DION OGUST
  • Dion Ogust

The State of Indiana just passed a Religious Freedom Restoration Act.

The pretentious, sententious, and tendentious name seems to announce that we are desperately attempting to emerge from a period of Bolshevik imposed atheism and anticlericalism, when church property was taxed, bible sales were forced underground, and presidential candidates had to hide their deep religious convictions rather than trumpet them daily as they so dearly wished to do.

Actually, the first of the RFRAs was a federal statute. It was introduced in the House of Representatives by Representative (now Senator) Chuck Schumer, and in the Senate by Ted Kennedy, where it passed 97-3, and was signed by President Clinton. It was prompted by a Supreme Court decision that upheld the denial of unemployment compensation to two Native Americans who had been fired for using peyote in a religious ceremony. It brought back the Sherbert Test. Nothing to do with the frozen desert, it refers to Sherbert v. Verner, which held that if a statute impacted the practice of religion, intentionally or unintentionally, it required greater scrutiny than an ordinary law, and the government had to choose the least restrictive way to achieve its goals.

The Supreme Court struck down part of that first Religious Freedom Restoration Act when another set of Native Americans tried to use it to protect their land by claiming it had religious significance. Then, in 1997, the Archbishop of San Antonio tried to use the RFRA to evade the designation of one of his churches as a historic building. This time, the Supreme Court ruled that the law restricted only the federal government, not state or local governments.

In response, states began to pass their own versions of the law. Now there are about 31 of them.

The salient question is whether any given RFRA—its intention, its application, or its anticipated application—is a shield or a sword. Does it protect, or does it impose upon others?

Based on the 19 Supreme Court cases examined when the original federal RFRA was written, it seems clearly intended as a shield for minority religious beliefs, as an extension of civil rights. The cases cited dealt with issues like a "church's challenge to a city ordinance regarding ritual slaughter of animals," "prison inmates...attendance at a weekly Muslim...service," "air force regulation preventing wearing yarmulke while in uniform," and "requiring public school students to salute national flag." At this point, it was clear that the law was (or at least was meant to be) a shield.

The state laws didn't seem particularly controversial, or swordlike, either.

Then came Hobby Lobby. Hobby Lobby is a chain of 600 arts-and-crafts stores. It employs about 18,000 people. It is a for-profit corporation, privately held, and owned by a trust, which is managed by the family of the company's founder. In 2012, the company filed a lawsuit against Obamacare's requirement that health insurance cover emergency contraception, claiming that "the Green family's religious beliefs forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices." The factual issue could be, perhaps should be, whether the emergency contraceptives are actually abortion causing. They are not. But this is about belief. Or so the Supreme Court was willing to hold. If you believe that God says the Earth is flat, then so be it, for you and your lawsuit, if I read the Roberts's court correctly.

The problem, according to most legal scholars, is whether a for-profit corporation can have religious belief—issues of faith so fervent that they trump normal civil law? The majority opinion, from Samuel Alito, referred to corporations as a "familiar legal fiction," then reasoned that if we see through the veil, the corporate actions are really the actions of regular, rights-bearing people who own the shares. At least if it's a "closely held corporation," which means that 50 percent or more of its shares are held by no more than five people. But the purpose of having a corporation is to have a separate entity that stands between the owners and liability. Even between the owners and mortality. In this case, there was even another entity, a trust, also designed to evade the responsibilities imposed upon mere mortals, between the humans, who presumably had the actual religious issues, and the corporation that wanted to act on those issues.

The Supreme Court decided for Hobby Lobby. More precisely, the five Roman Catholic men on the Supreme Court—Roberts, Scalia, Alito, Thomas, and Kennedy—found that the owners of the trust that owned the corporation that employed thousands of women could deny those women certain kinds of birth control that federal health care law required be provided.

Thus it was discovered how the Religious Freedom Restoration Acts could be changed from a shield that protected individuals who wanted to wear funny hats, eat peculiar foods, or kill chickens in flamboyant ways, to a sword that could be used against groups of people.

Hobby Lobby was decided in June 2014. A mere nine months later, the transformation of RFRAs is complete. The language hasn't changed. But read through the commentary of the supporters of Indiana's law. Or even the complaints of the opponents. There is only one group that is expected to be protected by the law, Christians. (A certain subgroup of Christians, defined as those most likely to vote in a Republican primary.) There is only one thing they want to be protected from: providing services for gay weddings. In their minds, or at least in their rhetoric, that's the equivalent of the grandchildren of slaves cooking for the Klu Klux Klan and of Jews giving aid and support to the Holocaust. Which, of course, is flipping things inside out. Granting civil rights to gay people, even to purchase services from fervent Christians, is more like telling the KKK that they have to make croissants for African-Americans and requiring party planners, even if they are Nazis, to do bar mitzvahs. Really, these claims of victimhood from the group that has been the oppressor of minorities, by religion, race, or sexual orientation, is chutzpah. In case anyone doesn't know what that means, it's defined by the child who kills his parents and then throws himself on the mercy of the court as an orphan. Or in this case, the homophobe who won't bake for a gay couple on the grounds that God has told him that of all the sins enumerated in the Holy Book, so many of them with a death penalty, this is the one that means you can't have your cake and eat it too.

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  • Larry Beinhart discusses the Religious Freedom Restoration Act.

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