RFRA: Some History, Some Analysis, Some Thoughts

So religious freedom has been restored in Indiana! Hallelujah, right? Sorry, but you won’t be hearing exaltations of joy from me. I think that Indiana’s newly enacted “Religious Freedom Restoration Act” (RFRA) is a poorly conceived approach to a real problem that has been turned on its head. It is a tremendous step backward for those who view equality and tolerance as important or who properly understand religious freedom as being about an individual's ability to actively practice his or her own belief rather than use those beliefs as a sword against others. Moreover, while I do believe that the primary motivations for passage of RFRA were the failure of conservatives to pass the same-sex marriage discrimination amendment last year and the rulings of the federal courts that legalized same-sex marriage in Indiana, I think that we make a mistake to presume that RFRA was solely about gays; thus the so-called “fix” doesn’t address many of the other problems that RFRA creates.

This is going to be a long post. Really long. I’m warning you here at the beginning. But there is a lot of ground to cover, a lot of issues to address, a lot of points to make, and a lot of misinformation to debunk. I’m going to do my best to do all of this in as ordered and neat of a post as I can reasonably manage. But I also know that time is pressing, and so I may not have the luxury to dot every i and cross every t as I work through this discussion. Finally, just to keep things clear, I started writing this post on Tuesday, March 31, 2015, but I expect that it will take a day or five weeks (months?) to finish. So please pardon me, if some of the points that I articulate are made elsewhere (or better) in the meantime. And off we go…

The History of RFRA

I think that it’s important to understand the history of the federal RFRA law which was passed unanimously by the House and nearly unanimously by the Senate in 1993. It’s important to understand this history both as a comparison to the motivations for passage of Indiana’s RFRA and to recognize the differences in the two pieces of legislation, especially given that supporters of Indiana’s RFRA statute constantly point the “identical” federal law.

The federal RFRA law was enacted largely in response to a series of court decisions involving Native Americans. The most important of these cases was decided by the Supreme Court of the United States (SCOTUS) in 1990. In that case, SCOTUS upheld the denial of unemployment benefits to two Native American men who were fired after testing positive for drug use because they had been smoking peyote as a part of a religious ceremony. In response, Congress passed RFRA as a means of permitting individuals aggrieved by actions of the government, a form of redress. In essence, following passage of RFRA, a law cannot impose a substantial burden on the exercise of religious practice unless the law serves a compelling governmental purpose and is the least restrictive means to address that purpose (pardon that last bit of legal jargon). In 1997, SCOTUS ruled that the federal RFRA didn’t apply to the states, so in response, many states adopted their own versions of RFRA. Indiana did not (and, no, I don’t know why Indiana didn’t).

Pause for a moment and think about the that case that gave rise to RFRA: Native Americans wanted to do things that were an essential part of their religion but drug laws meant that they couldn’t legally do so. This situation might be analogous to Catholic children being prohibited from sipping wine at communion or Jewish children being prohibited from sipping wine as a part of a Passover Seder or b’nai mitzvah celebration. In none of those situations does the action that the person seeks to engage in have a direct impact on others. And in those cases, the prohibited conduct is central to the practice of the religion or at least to a ceremony that is a part of religious exercise.

In the years following passage of RFRA, most of the cases dealing with RFRA involved either land disputes or laws that prohibited certain religious conduct. For example, the case in which SCOTUS held that RFRA did not apply to states involved a zoning dispute with a church. Another case involved use of federal lands for a ski resort. Other cases involved the use of income taxes to pay for war, the requirement to have a social security card (those complaining about the application of the law to their religious beliefs lost both of these cases), and the type of warning devices on the back of Amish buggies. And perhaps the best known series of cases — at least until Hobby Lobby — involved laws that prohibited practitioners of Santeria (often confused with voodoo) from engaging in ritual animal sacrifice.

Hobby Lobby and Same-Sex Marriage

But then two things happened almost concurrently: Hobby Lobby and same-sex marriage.

For those who don’t recall (and I’m not going to delve deeply in to it here…), the Hobby Lobby case involved the mandate in the Affordable Care Act (a/k/a Obamacare) that employer-provided health insurance cover birth control. Hobby Lobby, a close corporation (i.e., its shares are not publicly traded) objected on the grounds of religious freedom and the federal RFRA law, arguing that providing birth control in the form of abortofacients violated the religious beliefs of the owners of Hobby Lobby and, by extension, of the business itself. SCOTUS sided with Hobby Lobby and held that the company could not be required to provide coverage for abortofacients (or IUDs) for its employees. Two things are particularly notable about this decision: First, the recognition that a corporation might have “religious beliefs”, and second, that the substantial burden on Hobby Lobby’s religious exercise was requiring Hobby Lobby to spend money to do something it (well, actually its shareholders) found religiously objectionable (while the plaintiffs in the cases involving taxes and social security cards lost when they raised similar arguments).

Almost concurrent with the Hobby Lobby case were the growing number of decisions by state and federal courts overturning bans on same-sex marriage all across the country. In many states, conservatives tried to add language to state constitutions to ban same-sex marriage (or recognition of same-sex marriages from other states). These bans were usually the issue before the courts and most were ruled unconstitutional. Because of the slow manner of amending Indiana’s Constitution, Hoosier conservatives were still fighting this battle in the spring of 2014. It was a brutal, ugly, angry fight in the Statehouse (and yes, this blog still carries the logo of the group that led the efforts to defeat the passage of the measure to adopt the amendment). At the end of the day, those who were opposed to same-sex marriage and wanted to enshrine discrimination into the Constitution lost. And some of the fallout was … ugly.

Then, just a few months later, a federal court ruled that Indiana’s statutory ban on same-sex marriage was unconstitutional (under the United States Constitution). The Seventh Circuit Court of Appeals (in Chicago) upheld this ruling in a very sharply worded opinion (if you find this sort of thing at all interesting, and if you’re reading this post, then I presume that you do, then it is really worth your time to read that opinion, both to see the sorts of arguments advanced against same-sex marriage and to see one of the brightest conservative judges absolutely eviscerate those arguments). SCOTUS allowed this ruling to stand and same-sex marriage became legal in Indiana. Due to a split between federal circuit courts that arose after SCOTUS refused to hear the Indiana case, the issue is now before SCOTUS with a decision expected within weeks or even days.

Thus, at least in Indiana, the primary motivation for passage of RFRA seems, quite clearly, to be the loss in the same-sex marriage battle with the ammunition provided by the Hobby Lobby decision. For those who don’t see the linkage between the same-sex marriage debate and RFRA, all I can do is point to the following: (a) Indiana has had years to adopt a RFRA statute, but never did so, until same-sex marriage became the law; (b) the proponents of RFRA were the same legislators and lobbying groups who were proponents of the proposed amendment to prohibit same-sex marriage; (c) RFRA became the principal legislative effort in the session immediately following both the defeat of the marriage amendment and the decision permitting same-sex marriage; and (d) proponents of RFRA actually tried to adopt a smaller, more focused version in 2014, just days after the proposed marriage amendment was defeated.

The Baker, The Florist, and the Photographer

As the fights over same-sex marriage were heating up, three incidents caught the attention of those who felt that their views opposing same-sex marriage on religious grounds were being, at best, marginalized, or at worst, “attacked”. Those cases, broadly described, included a baker who didn’t want to bake a wedding cake for a same-sex wedding, a florist who didn’t want to provide flowers for a same-sex wedding, and a photographer who didn’t want to take photographs of a same-sex wedding (which is why you’ll see those examples used over and over again). The baker, florist, and photographer each argued that their religious beliefs didn’t condone the “gay lifestyle” or same-sex marriage and that by providing the requested service they would be “participating”, “celebrating”, or “promoting” something that violated their religious beliefs.

One thing to keep in mind in each of these cases (and I don’t want to get too far afield), is that the state or municipality in which the events occurred, all had a law or local ordinance that protected people from discrimination on the basis of sexual orientation. Some cities in Indiana have similar protections, but the State of Indiana does not. I want to make this as clear as possible: The baker, florist, and photographer were not punished for refusing to “participate” in a same-sex wedding; rather, they were punished for violating laws that prohibited discrimination against people on the basis of sexual orientation. The reason for the discrimination wasn’t being punished, just the act of discriminating in violation of the law. Go ahead. Take a few minutes and ruminate on that distinction. It’s important.

Before moving on, however, I do want you to think about the baker, florist, and photographer cases for another moment. First, let’s review what the issues were in those cases, but instead of “same-sex marriage”, I’m going to make some slight alterations to the fact patterns as I described them above. Tell me if you feel any different with these slight revisions:

Those cases, broadly described, included a baker who didn’t want to bake a wedding cake for an interracial wedding (because his religious beliefs inform him that the races are to be kept separate), a florist who didn’t want to provide flowers for the funeral of an atheist who hadn’t accepted Jesus as his personal savior before death), and a photographer who didn’t want to take photographs of a Muslim wedding because the bride would be behind a dark veil.

Now, let’s take these examples a step further:

Those cases, broadly described, included a baker who didn’t want to hire a divorced man because his religious views don’t condone divorce, a florist who fired a single woman who became pregnant because his religious views don’t condone pre-marital sex, and a photographer who fired an employee for refusing to convert to the photographer’s religion after repeated efforts to proselytize.

Or maybe the religious objection is to women working outside of the home or being in public without a veil. Maybe the objection is to the man cutting his hair or not having a beard as required in Deuteronomy. Perhaps the concern is the employee using her salary to purchase birth control, a pork tenderloin, or alcohol, all in violation of the employer’s religious beliefs. You can extend, almost infinitely, the list of things to which a religious objection could be raised. So what it is about same-sex marriage that stands apart from these other examples? And before you chime in with an answer, let me remind you that religious beliefs were used as justification both for slavery and, later, segregation; many of the same arguments that we’ve heard against same-sex marriage are the exact same arguments that were used to justify laws banning mixed-race marriages (which were only legalized in many states following a ruling from SCOTUS in the 1960s). I raise these points so that when considering RFRA you can think both in terms of its applicability to same-sex marriages and to other sorts of discrimination on the basis of religious belief. In fact, perhaps when thinking about these issues, you’d be well-served to replace “gay” or “homosexual” or “same-sex” with words like “African-American” or “Jewish” or “interracial”. Then see if your opinion changes at all.

Churches Aren’t Being Forced to Conduct Same-Sex Marriages

One other case that I want to comment upon (because it got a fair amount of press … briefly) involved a wedding chapel that refused to host same-sex marriages. The story that went around was that a “church” was being forced to perform same-sex marriages. Actually, the chapel was a for-profit business, not a church. It’s owners had been “ordained” but not by any particular faith; rather their ordination was what was necessary to allow them to perform marriages. And the owners themselves weren’t being required to perform marriages at all, only to allow their chapel to be rented out for a wedding with the couples supplying their own clergy, just as the chapel was rented to others who also supplied their own clergy. In other words, this case would be better thought of as a private banquet facility that wanted to turn away an event, not a church being forced to perform a marriage that it didn’t condone. And again, would you view that case differently if the chapel’s owners were turning away a couple because they were of different races or Jewish, Muslim, or atheist? Oh, and guess what? The owners of the wedding chapel created a new corporate organization to operate the chapel on religious grounds and the government then concluded that the exemption for religious organizations applied so no further actions were taken. In other words, a church was never being forced to conduct same-sex weddings; rather a secular, for-profit business was told that it had to comply with the law … so the business changed into a religious organization in order to avoid having to treat people equally.

This seems like a good point to briefly address one of the red herrings frequently tossed out by those who oppose same-sex marriage (and who, just coincidentally, happen to be the primary supporters of laws like Indiana’s RFRA). In fact, I’ll put the argument in the precise words of Advance America, in their message to supporters that Indiana’s RFRA law was “under attack” (emphasis in original):

Pastors should not be forced by the government to conduct a homosexual wedding at the church.

Similarly, in their efforts to get supporters to contact legislators to support passage of RFRA, Advance America claimed that the bill was necessary because:

A church should not be punished because they refuse to let the church be used for a homosexual wedding!

And just to be clear, Advance America has also told its supporters that pastors could be jailed for “preaching what the Bible says about homosexuality”. Similarly, the open letter from the Indiana Pastors Alliance that I blogged about last month, also makes this argument (“it’s only a matter of time before these same liberties are removed from the Church”). And Presidential contender (and professional buffoon) Mike Huckabee even argues that the goal of gay advocates is to eliminate Christian churches.

Seriously.

Perhaps those making this argument should take a few seconds to read Article 1, Section 4 of the Indiana Constitution to see that they are already protected (emphasis added):

No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.

In other words, the Indiana Constitution already protects clergy from performing a ministerial service that he or she doesn’t want to; a church cannot be compelled to recognize marriages that it doesn’t want to. Those are core, fundamental elements of the Indiana Constitution (and the United States Constitution, as well), but why tell people the truth when appealing to people’s base fears and prejudices is so much scarier?

It seems to me that those who argue that churches could be compelled to perform gay marriages are wildly overplaying their hand; however, given that this argument has gained traction and is so-often repeated, then perhaps not. In any event, the fact that people actually believe this line of bullshit is, frankly, scary. I mean, think about it: Is forcing a church to conduct a same-sex wedding any different than forcing a Catholic priest to perform a Jewish wedding or forcing a Jewish rabbi to perform an interreligious wedding? And yet we don’t see those sorts of occurrences, do we? Of course not. Nor do we hear people voicing fears that their church or clergy would be so compelled. Similarly, there are some pretty awful things said on all sorts of subjects from pulpits all across the country, whether it’s a rant against African Americans, denigration of Muslims, hatred of “white oppressors”, allegations of deicide against Jews, or prayers for the assassination of President Obama, to give but a few examples. Yet we haven’t seen the clergy making those sorts of statements imprisoned, have we? It’s only the “fear” of a homosexuality, in general, and same-sex weddings, in particular, that sets off alarm bells of fear of imprisonment for advocating a dissenting opinion. And apparently, many people are so afraid of gays that they believe this sort of fear mongering.

So What Does the RFRA Statute Actually Say?

One of the first and most important things to do when discussing a law, especially a controversial one about which all sorts of misinformation is being disseminated, is to actually read the law (link to a .pdf of the version of RFRA that was initially passed by the General Assembly and signed by Gov. Pence [i.e., before the “fix”]). I elected not to reprint the entire statute here as this post will already be long enough. But please, please take some time to read the statute. Seriously, go read the statute; it’s only (really) 3 pages long with huge margins. Go on. I’ll wait.

Done? Ok, good. (Yeah, I know… you didn’t really go read it, but we’ll pretend that you did.) So let’s talk about what the statute really says. What jumped out at you? Anything? I’ll wager that some of you are saying, “A-ha! I knew the law didn’t say that it was OK to discriminate against gays; it doesn’t even mention gays! Or discrimination!” Well, you’re right. It doesn’t. What? You thought that the statute would say something like “Discrimination against gays who have icky gay sex is A-OK in the Great State of Indiana?” Sorry to disappoint. I think you’ll find it rare for statutes to be that specific, especially if one of the goals of word choice might be to hide or bury certain intent.

So let’s just walk through the statute, section by section, shall we?

Section 1 just tells us what this new RFRA statute applies to: Essentially any law whether passed before or after RFRA becomes effective.

Section 2 is one of those innocuous-seeming, legal mumbo jumbo-y paragraphs that actually caused a fair amount of the consternation. Look at Section 2 again. It provides that no existing law, whether a state law or a local ordinance, is exempt from RFRA unless a state statute specifically creates such an exemption. In other words, no statutes now on the books or passed in the future are exempt from RFRA unless the Indiana General Assembly passes a specific statement (either with a new law or in reference to an existing one) that says something like “this law is exempt from RFRA”. Why does this matter? First, obviously no laws adopted prior to RFRA would already include an exemption. Why would they? There wasn’t a RFRA law to be exempt from. But more importantly, what Section 2 really means is that local human rights ordinances (as an example), which may be broader than the state civil rights laws, are not exempt from RFRA. In other words, even though some cities and counties have added sexual orientation or gender identity to the list of protected classes within those cities and counties, the application of those ordinances are not exempt from RFRA. Or, to say it yet another way, RFRA trumps those local ordinances. (Oh, and for the lawyers out there, the phrasing “may not be construed to be exempt” is an interesting way of telling a judge who may be faced with a case arising out of RFRA how to examine and interpret the interaction between local ordinances and RFRA.)

Sections 3 through 7 are a series of definitions so that, when interpreting RFRA, we are all operating from the same understanding (if only things were that simple). I’m not going to address every definition; some are fairly mundane. I’ll limit my discussion to the most important definitions, though I do think it’s worth noting the lack of specificity used in the definition of “Establishment Clause” when referring to the Indiana Constitution. The definition specifically references the First Amendment to the United States Constitution (from which the term “Establishment Clause” is derived) before an almost off-hand inclusion of the Indiana Constitution. I note this because one of the things that continues to fascinate me is just how unfamiliar with the Indiana Constitution I’ve discovered most Hoosiers — including most Hoosier legislators — really are. I mean, if the authors of RFRA can cite the first part of the First Amendment to the United States Constitution directly, why can’t they also cite the applicable provisions of the Indiana Constitution? Anyway, my guess is that the portion of the Indiana Constitution included within the definition of “Establishment Clause” is Section 4 of Article 1 (the Bill of Rights):

Section 4. Freedom of religion. No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.

Note that Section 4 (and the other religion provisions of the Indiana Constitution) are both similar to and yet different from the First Amendment to the United States Constitution.

I hadn’t planned to discuss the term “granting” … until I re-read these definitions for the umpteenth time while writing this post. Note that the term “granting” does not include the “denial of government funding, benefits, or exemptions.” OK. Fine. So what? But then look at Section 3(c) which says that “[g]ranting government funding, benefits, or exemptions … does not constitute a violation…”. In other words, if the government gives funding, benefits, or exemptions, RFRA doesn’t apply; but if denying funding, benefits, or exemptions, then RFRA does apply. While the issues raised by this provision aren’t the focus of my attention, it is worth contemplating how RFRA might or might not apply with regard, for example, to the decision to provide or withhold vouchers for students to attend parochial schools. But that’s probably a discussion for another day.

One of the most interesting of the definitions in RFRA is that of “exercise of religion”: “[A]ny exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Ignore the circular part of the definition (exercise of religion means an exercise of religion…). More interesting, at least to me, are the following: First, what does “a system of religious belief” mean? While the statute defines “exercise of religion” it doesn’t define “system of religious belief”. For that matter, what do we mean by “religious belief”? For example, do “secular humanism” or “atheism” qualify as “religious beliefs”? I know that some people believe (wrongly!) that Islam is not really a religion because it includes a whole series of laws that govern societal behavior and not just worship (as do both Judaism and Christianity, though that doesn’t really advance the Islamophobic narrative); so does that include or exclude Islam within “a system of religious belief”? (That was rhetorical; obviously Islam is religion and the practice of Islam is part of “a system of religious belief”. But I raise the point because Islamophobia, especially from some of the same sorts of people who support RFRA, makes this an interesting point to contemplate.) Are Native American belief structures “a system of religious belief”? What about those espoused by less-mainstream groups like Scientology? Can Hell’s Angels or similar clubs who share a particular set of values claim those values or creeds as “a system of religious belief”? What about the new Indiana Church of Cannabis? I’m sure you can dig down into that rabbit hole very, very deeply. Plus, I guess one must ask what sort of belief one might have that isn’t part of system of religious belief. Is belief in science part of a “system of religious belief” (in that case either atheism or secular humanism or even “just science”)? Let’s not forget that many proponents of so-called “intelligent design” describe secular humanism or “belief” in evolution as secular religions.

But we’re not done… Because note that the definition of exercise of religion specifically notes that the exercise in question doesn’t have to be “compelled by, or central to” the “system of religious belief”. So what does that really mean? Clearly keeping kosher is central to Judaism; prayer five times per day is compelled by Islam; and taking communion is (I think) both compelled by and central to Catholicism. But what about divorce? Each of those religions have rules about divorce; about the circumstances under which divorce is, if ever, permissible. Are the rules pertaining to divorce central to or compelled by the system of religious belief? What about tithing or giving to charity? What about stoning disobedient children or those who bow down before “false gods”? Well, guess what? It doesn’t matter for purposes of RFRA. Rather, RFRA is only concerned with an exercise of religion and the language regarding “a system of religious belief” is essentially nullified by the “whether or not” proviso. In other words, under RFRA, “exercise of religion” means “exercise of religion” without regard to whether that exercise is compelled by or central to a system of religious belief. Or, more plainly, if you say your conduct is an “exercise of religion”, I don’t see any way whatsoever for that view to be challenged because your definition of exercise of religion does not need to be compelled by or central to the religion you claim (or, more accurately, the “system of religious belief” to which you subscribe). If your claim is that to exercise your religion you must shun homosexuals, Muslims, women with bad dye jobs, or people who like Justin Bieber, then that shunning is an “exercise of religion” notwithstanding that it isn’t really compelled by or central to your religion or any religion (well, other than shunning Justin Bieber; most religious shun him, don’t they?). Hmm. Can you see any problems with this expansive definition?

Obviously, the point is to be sure that RFRA doesn’t apply just to Christianity or just to Judeo-Christian or even Abrahamic faiths, but rather to all religions. Yet, at the same time, the law needs to stay clear of trying to determine what is a “real” religion or whether a particular faith compels or prohibits certain conduct. I don’t think anyone wants our courts to become arbiters of religious doctrine or to be hearing testimony from clergy with competing views of whether their particular view of their particular religion condones or prohibits a given conduct. Even worse would be asking courts to determine whether any particular religion is “real”. I’m sure that there are judges who would have no trouble finding that neither the Church of Cannabis nor the Church of the Flying Spaghetti Monster are “real” religions. But I’m also sure that there are judges who would say the same thing about Scientology, Wicca, Rastafarianism, and Yoga. And I suspect that there are judges would would also conclude that Islam and, perhaps even Judaism or Catholicism, aren’t “real” religions. Asking courts to decide which religions are legitimate and which actions are compelled or prohibited by those religions? There lies danger…

Furthermore, note that “exercise of religion” is said to “include” the exercise of religion but “includes” is a broad word and is not exclusive. In other words, the term “exercise of religion” under RFRA includes “any exercise of religion” but might also include actions (or inactions) other than the exercise of religion. One of the important aspects of statutory interpretation is to presume that the legislature knew what the words it wrote meant and intended that meaning. Thus the use of “includes” must be presumed to mean that the legislature meant for and intended the “exercise of religion” to mean more than just … the exercise of religion.

Are you confused? Don’t worry. I am too.

Section 6 simply defines “governmental entity”. This provision is largely innocuous, but it does have one specific inclusion that is worth noting. In Section 6(3), RFRA specifically includes “a state educational institution” within the definition of “governmental entity”. This is correct, I believe; however, over the years, we’ve often seen those who favor school prayer and the like argue that a school is not the government and thus not covered by the prohibitions of the Establishment Clause.

Then we come to Section 7, the definition of “person”. This definition is one of the most troubling aspects of Indiana’s RFRA statute. First, what do you think of when you hear the word “person”? And what do you think of when you think of the word “person” in relation to religion and faith? Let’s look at how the Indiana General Assembly defined “person” in RFRA (and ignore the poor grammatical structure):

As used in this chapter, “person” includes the following:

(1) An individual.

(2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes.

(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:

   (A) may sue and be sued; and

   (B) exercises practices that are compelled or limited by a system of religious belief held by:

      (i) an individual; or

      (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Let me break down the most important part of that again (clause (3)(B)):

“[P]erson” includes … [a] partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that … exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Yeah, I know. It’s a mouthful. Anyway, with that definition, under RFRA, a “person” is not just an individual like you or me. Nope. A church or a religious organization is also a “person” (per clause (2)). That’s probably OK (at least for purposes of “religious freedom”). But under RFRA, “person” can also mean a for-profit corporation that exercises religious practices compelled or limited by the system of religious belief of its shareholders. Oops. Sorry. Not all of the corporation’s shareholders; only those “who have control and substantial ownership” of the corporation.

As an aside, when most corporations (or partnerships or limited liability companies) are formed, their organizational documents answer certain questions in advance, such as the purpose of the business, how the business will be managed, the relationship of shareholders to one another, and so forth. Often, certain areas of potential stress or conflict are dealt with in advance, in part as a means of reducing strife and tension that could later arise and, in part, as a way to determine how to respond to and resolve certain types of disputes. Thus, for example, many organizational documents will outline the process by which a corporation can decide to admit additional shareholders, sell corporate assets, or deal with the death or disability of a shareholder. Some of these sorts of matters are required to be included in the corporation’s organizational documents as a matter of law. But I’m willing to bet that the shareholders of very few for-profit corporations have had a discussion at the time of the corporation’s formation to discuss whether the corporation will exercise religious beliefs, which precise religious beliefs the company will adhere to, how the shareholders will be able to choose or revise the religious beliefs of the corporation post-formation, which shareholders’ religious beliefs will be given precedence, and what to do if the minority shareholders believe that their religious exercise is being burdened by the religious views of the majority. I bet that very few for-profit corporations have paid much attention to the religious affiliations or beliefs of their initial group of shareholders; I bet even fewer ask potential venture capitalists or other investors about their religious beliefs. I suppose, however, that when a corporation takes on a new investor, if that new investor has differing religious views, the corporation can go through a “religious conversion” of some sort. I’m curious to know which churches in town baptize corporations and how the Christian shareholders of a corporation would feel if they later learned that the new investor who pumped needed capital into the corporation wanted to convert it to Islam, Judaism, or Scientology. Or, even “worse”, become atheist…

I’m also intrigued by the conjunction “and” that links control of the corporation with substantial ownership of the corporation. Does that mean that a majority shareholder who isn’t also the CEO might have substantial ownership but not control for purposes of RFRA or that the board of directors might have control but if the directors don’t also have substantial ownership then they couldn’t use RFRA? I look forward to see that issue litigated…

One further curious thing to note in the portion of the definition of “person” applicable to corporations: As discussed above, the definition of “exercise of religion” specifically excludes a requirement that the exercise be compelled by or central to a system of religious belief. By contrast, the definition of “person” (but solely with reference to corporations) requires that the practices of the corporation be “compelled or limited by a system of religious belief”. So an exercise of religion can mean anything, whether or not compelled, but a corporation is only a person if its exercise is compelled or prohibited by the system of religious belief. I think. Um. Maybe. Yeah, my head is spinning a bit on that one, too.

Moreover, the defined term “exercise of religion” is abandoned in favor of “exercises practices”. Does “exercises practices” have a different meaning than “exercise of religion”? Why the change in terms and is that distinction meaningful?

Remember further that a corporation (or partnership, limited liability company, etc.) only falls within RFRA’s definition of “person” if it “exercises practices that are compelled or limited by a system of religious belief held by” the individuals “who have control and substantial ownership of the entity”. So let’s say that those individuals subscribe a a system of religious belief that prohibits abortion. How, precisely, does the corporation exercise those beliefs? How precisely does a corporation keep kosher? More importantly, can a corporation be considered a person for purposes of RFRA if it does none of the things required by the system of religious belief of its shareholders (well, other than the thing that causes the RFRA-based dispute)? If the system of religious belief requires tithing or baptism, how does that corporation exercise those practices? And if the corporation doesn’t do the things compelled by the system of belief, why should it be able to avoid those things prohibited? Said differently, think of a corporation that has Christian shareholders. The corporation isn’t baptized, doesn’t go to church on Sunday, charges interest on late accounts, doesn’t tithe to a church, employs divorced people and single mothers, and so on and so forth. But the corporation can choose not to do something vis-à-vis a gay couple because its “religious beliefs” say male homosexuality is bad?

Remind me again what Moses, Jesus, Muhammad, Buddha, and other religious figures have said about how corporations should show their religious devotion.

Finally, with Section 8(a) we come to the core of what RFRA is all about: “[A] governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.” In order to parse this language, refer back to the definitions of “governmental entity” and “exercise of religion” discussed above. Of course, the obvious question is what constitutes a substantial burden on an exercise of religion? Don’t forget that the screwy definition of “exercise of religion” can mean virtually anything.

Before thinking too long on that question, it’s important to look at the last phrase of Section 8(a): “… even if the burden results from a rule of general applicability.” What does that mean, I hear you asking (with a trace of exasperation in your voice, no doubt…). A law of general applicability is one that applies to everyone and is not (or at least not intentionally) targeted at a particular group. Thus, for example, compare a law that prohibits animal cruelty with a law that prohibits ritual animal sacrifice. The former is a law of general applicability; the latter is aimed at a specific religious practice. Section 8(a) of RFRA would seem to permit someone to perform a ritual animal sacrifice even in the face of a law banning animal cruelty (and, in fact, unless I’m mistaken, cases dealing with Santeria animal sacrifices have been decided on just these grounds under both federal and state RFRA statutes). The law that directly prohibits a type of religious exercise will most likely fail the constitutional free exercise test; the law of general applicability may fail the RFRA test.

To go back to other real world examples of laws of general applicability and RFRA, consider both taxes and zoning laws. Taxes are (usually) laws of general applicability. Everyone pays taxes (though note that nonprofit, religious organizations, often don’t have to pay sales taxes and in some cases don’t pay property taxes, either). But consider, for example, a Quaker who objects to his tax dollars being used to pay for the military and claims that the law that requires him to pay taxes that will be used for that purpose to be a burden on his religious belief. Or consider a congregation that wants to build a church in the middle of a residential subdivision that is zoned only for residences and argues that the applicability of the zoning law would burden the congregation’s ability to exercise its religious beliefs. Or consider laws that require people to remove facial coverings when testifying in court so that the jury can see their facial expressions and the impact that such laws of general applicability might have on Muslim women. One can go on and on with examples of how a law that isn’t intended to have any effect on particular people on the basis of their religion can, nevertheless, have such an effect.

Oh, and just what is the measure by which a court is to determine whether a law actually “substantially burdens” someone’s religious exercise? Does the person put their hand on their Bible (yeah, I know, I know; I couldn’t resist) and swear that they have been substantially burdened? Or is more required? What kind of proof must someone introduce to demonstrate that a law creates a substantial burden? What if the element of the religious exercise that is impacted by the law is very minor to the faith? Can a minor point of religious exercise be substantially burdened? Is there an element of the notion of substantial burden that looks to the sincerity of the belief or to whether or not (remember the definition of religious exercise) the belief impacted is actually compelled or prohibited by the particular religious belief? Who decides?

To bring this discussion back to Indiana and the current situation, would a baker being forced to bake a cake for a same-sex lesbian wedding, even though his religious belief that says that male homosexuality is an abomination, being a substantial burden on the baker’s religious exercise? After all, the baker is not being asked to actually do the thing his religion condemns (the baker isn’t being forced to actually marry someone of the same-sex). And just how important of a “belief” is opposition to same-sex marriage (as opposed to male homosexual conduct) within the baker’s system of religious belief? Does it factor into the calculation of whether the baker is substantially burdened if it can be demonstrated that the baker doesn’t follow other, equally “important” tenets of faith or if there are competing doctrines (e.g., “do unto others”…)?

Now there is a major exception to the rule set forth in Section 8(a): “A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Yeah, I know. Another mouthful.

Unfortunately, both of the critical terms in this exception are steeped in constitutional jurisprudence (legalese): “compelling governmental interest” and “least restrictive means”. I’d say that “compelling governmental interest” means just what it sounds like, but that would be belied by the volumes that have been written (not to mention the cases that have been argued) on just what interests are “compelling”. Thus, I suspect we can all agree that protecting people from the violent acts of others is a compelling governmental interest. So I don’t think that the government would have much trouble arguing that the first component of this test is met should someone argue that their religious exercise requires ritual human sacrifice. But what about a law that limits marriage to two individuals? Is the government’s interest in marriage, in particular limiting it to heterosexual couples, a compelling interest? What about a law that requires people to show their faces or hair on a driver’s license photo or when testifying in court? Or a law that requires pharmacists to fill all prescriptions unless they have a medical reason for refusing to do so. Or a law that requires slaughterhouses to use captive bolt stunning (or that prohibits killing livestock by slitting their throats). [Prohibiting the killing of animals by slitting of their throats (or similar means) would essentially deprive observant Jews of meat because the requirements for kosher meat are very specific in terms of how an animal must be slaughtered.]

Or what about local laws that impose safety restrictions on so-called childcare ministries. Might the childcare ministry challenging the law be able to argue that those safety restrictions aren’t a compelling governmental interest because the Indiana General Assembly has considered and rejected many such restrictions in the past? If, the argument might go, the General Assembly has considered and rejected such restrictions, then they must not have been compelling enough (at least for the state). And what about local protections for the LGBT community. Indianapolis and Bloomington (and other communities) may have decided that those groups are worthy of protection, but if the State of Indiana has not extended such protections, can such protection really be said to be “compelling”?

The problem, you’ll quickly find, is that to the person who believes that their exercise of religion is being burdened, the interest of the government is almost never compelling. And, from the perspective of the government (or of those being protected), laws wouldn’t have been passed if their need wasn’t compelling.

And that brings us to the second element to the exception: The “least restrictive means” test. Even if a law serves a compelling governmental interest, it must also be the least restrictive means of furthering that interest. Trying to hammer down precisely what this means is … well, that’s what the courts are for, isn’t it?

So, to take an extreme example, let’s go back to that ritual human sacrifice I mentioned above. Does the law banning murder further a compelling governmental interest? I don’t think many would argue the contrary. But is it the least restrictive? What if the person to be sacrificed consents (and never mind that we’ve now implicated laws against suicide, too)? Is the law banning murder the least restrictive or must that law fail because it could have been written in a less restrictive way that permits murder if the victim consents (and we just know how people feel about assisted suicide)? The law requiring pharmacists to fill valid prescriptions probably serves a compelling governmental interest; but is it the least restrictive means? Couldn’t the law have allowed for an exception if there was another pharmacist available who would fill the prescription? What if the substitute pharmacist is in the next town?

Again, when trying to analyze the concepts of compelling governmental interest and least restrictive means, you are entering a constitutional jurisprudence rabbit hole (or combat zone…).

The other important thing to note about Section 8(b) of RFRA is that the burden to prove both that the law furthers a compelling governmental interest and that the law is the least restrictive means of furthering that interest falls to the government. In other words, once a person asserts that their exercise of religion has been substantially burdened, then the government must prove that the law furthers a compelling government interest and is the least restrictive means of furthering that interest. That is often a very difficult burden to meet. And query whether a state attorney general who comes from a particular religious viewpoint might choose not to try to prove the compelling nature of the law in the first place. “Elect me and I won’t argue that these laws are compelling enough to force compliance by members of my chosen religious group…”.

Furthermore, it’s interesting to note the severe burden of proof placed upon the government while, at the same time, there is absolutely no standard set forth for what is necessary for a person to prove that their exercise of religion has been “substantially” burdened. Query whether an exercise of religion that is not compelled or prohibited by a system of religious belief or is not core to that system of religious belief can be so important as to be “substantially” burdened. And if you want to tease that out a bit more, consider that while some may oppose same-sex marriage on the basis of Biblical opposition to homosexuality, there isn’t a law requiring people to engage in homosexual acts or enter into a same-sex union and the Biblical prohibition is on the homosexual act itself, not the celebration of it via a wedding ceremony. Yeah, I know; repeating myself a bit… So…

Moving on…

Section 9 is, in a way, the “meat” of RFRA and it includes one of the key differences between Indiana’s version and the federal law (more on those other differences later). Essentially, Section 9 says that a person who believes that their “exercise of religion” has been “substantially burdened” can use RFRA’s protections either as a claim or a defense. In other words, the person can sue on the basis of RFRA’s protections or use those protections as a defense if sued. Well, that all makes sense. If RFRA is to have any meaning, it must allow for its protections to be used in litigation.

It’s the last part of the first sentence of Section 9 that raises concerns: “regardless of whether the state or any governmental entity is a party…”. Yeah, I know. More legal mumbo jumbo. What this means is that RFRA’s protections can be used in a lawsuit between private parties and to which the government is not a party. That is different than the federal law and (I believe) every other state RFRA. It is my understanding that the inclusion of this provision was in response to a decision of the Supreme Court of New Mexico in a case involving a suit by an individual against a florist (or was it a baker?) for violating the state’s civil rights laws. The florist claimed the New Mexico RFRA as a defense but the Court concluded that the florist couldn’t use RFRA because the suit didn’t involve the government. Or, said differently, the florist could have sued New Mexico to claim that the civil rights statute burdened the florist’s exercise of religion or could have used RFRA as a defense if sued by New Mexico, but couldn’t raise RFRA as a defense in a suit by an aggrieved individual who claimed the florist violated a non-discrimination law. Indiana decided to expand the scope of RFRA by allowing its use in disputes between private parties (but adds a provision to allow the government to intervene in the litigation). While it may seem like a minor point, this is actually a dramatic expansion of the scope of RFRA. It wouldn’t be surprising if RFRA defenses begin to work their way into all sorts of disputes between individuals (or companies). For example, I can already imagine a defendant challenging the statute that provides for interest at 8% per annum on certain debts on the basis of religious beliefs that prohibit the charging of interest. (I’ll let you try to articulate the compelling governmental interest in the statutory interest rate and why including such a law is the least restrictive means of furthering that interest.)

Section 10 of RFRA simply provides the types of relief that a party successfully asserting RFRA may be entitled to. These damages may include declaratory relief (i.e., a court order saying that a particular statute can’t be applied in a particular situation or against a particular person) or damages. Courts are also given leeway to award attorneys’ fees in “the appropriate case”. Two things are slightly unusual about this last provision, however. First, statutes that provide for an award of attorneys’ fees against the government are relatively rare. But I suppose that our legislators considered whether they want to put the government at risk for possibly having to pay out attorneys’ fees awards, right? More problematic, however, is that Section 10(c) of RFRA is not a mutual prevailing party provision. The statute only provides for an award of attorneys’ fees to a person successfully asserting a defense of RFRA against the government; the statute does not provide for the government to recover attorneys’ fees in the event that the RFRA defense (or offense, I suppose) fails. Thus, there is little incentive not to sue the government to assert rights under RFRA. A person who asserts those rights and loses will be out his or her (or the company’s) legal fees (but consider that many individuals might try to bring those cases on their own) while the government will have to expend fairly large sums for appropriate legal defense. This is why most provisions awarding attorneys’ fees do so to the prevailing party and don’t limit the possibility of award to only one side. But then civil rights litigation is, in many ways, a different animal.

And consider how this might play out in the criminal law arena. There is virtually no incentive not to assert RFRA as a defense to every criminal prosecution (especially if the accused is being represented by a public defender; the accused isn’t paying anything for his or her defense). Accused of robbing a bank? Argue that your religion prohibits poverty or the charging of interest or requires a redistribution of wealth. Accused of murder? Argue that it was a mandatory human sacrifice or point to one of the innumerable commandments in the Bible to stone or otherwise kill people who engage in certain conduct (my daughter talked back to me, your honor; I had to kill her!). Accused of rape? Argue that your religion subordinates women to the desires of men. You’ll most likely lose, but what the fuck… Maybe you’ll find a sympathetic judge. In any event, there was most likely no harm in raising the RFRA defense to the law. And if you win, not only will you not go to jail, but the government will have to pay your attorneys’ fees, too!

Finally, we come to Section 11 which was added to RFRA as an amendment in the final stages of its passage by the Indiana General Assembly. Section 11 protects employers from suits by employees, former employees, and job applicants. Why? Why does Indiana’s RFRA law take the side of employers (which are likely to be companies) in disputes with employees (who are always individuals)? If a company is entitled to argue that a law shouldn’t be applied to it because of the company’s religious beliefs, why shouldn’t an individual be able to challenge his employer’s actions? For example, say that there is a statute that prohibits discrimination on the basis of sexual orientation. And say that a bakery believes in equality and agrees to follow that statute (instead of challenging its applicability on the basis of RFRA). And now suppose that an employee of that bakery believes, on the basis of his or her religious beliefs, that homosexuality is wrong and that discriminating against gays is mandated by religious doctrine. When the employer tells the employee to bake a cake for a same-sex wedding and the employee refuses and is fired, why shouldn’t that employee be able to assert his or her own religious beliefs to the same extent that the baker could have if its religious beliefs opposed same-sex marriage? Obviously, with that example, I’m playing a bit of the Devil’s Advocate role, but I think you can see the potential problem. In all honesty, I’ve actually had a difficult time coming up with a realistic example in which an employee might have a RFRA-based claim against either the State or employer that would be viable but for the Section 11 exemption. If you can think of the example, please let me know. But at present, I’m drawing a bit of a blank…

When I first started writing this post, the so-called “fix” for RFRA had not yet been passed. But as this post took so long to write, it gave the General Assembly time to draft and pass some corrective language that was signed by Governor Pence. Please don’t get me wrong: I think that the fix includes some very good language and I’m glad that it was adopted; however, I would have preferred that RFRA be repealed in its entirety or that other fixes be made to solve some of the other problems that I’ve discussed above. The fix addresses the concern about businesses having the right to discriminate on the basis of a customer’s sexual orientation or gender identity. But it does nothing to address the notion that we’re going to treat companies as having religious beliefs; nor does it eliminate problems such as the “pharmacist’s conscience” (refusal to dispense birth control) scenario discussed above. In other words, the fix solved the problem that was the focus of protests, boycotts, and which generated so much controversy, but it didn’t fix all of the problems that this law may create.

So what exactly does the fix (Senate Enrolled Act 50) say?

First, the easy part: The fix added a new Section 7.5 with the definition of “provider” that will be used in the more substantive provision (to be addressed in a moment). “Provider” means “one (1) or more individuals, partnerships, associations, organizations, limited liability companies, corporations, and other organized groups of persons”. Note that the word “provider” was used instead of “person”; I suspect that this was in order to build in exceptions to include a “church or other nonprofit religious organization or society, including an affiliated school” and a “rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society”. I think those exceptions are appropriate (and they are actually more limited than the excerpts of the definitions that I’ve included). One odd thing did strike me: The definition specifically mentions rabbis, priests, preachers, ministers, and pastors, thus including Jews and all (most?) Christian denominations; but, oddly, the list of clergy does not include imams. What? Indiana’s General Assembly wouldn’t possibly have consciously chosen to ignore or disrespect Muslims, would it?

Anyway, the core of the “fix” is found in the newly added Section 0.7 (yes, 0.7):

This chapter does not:

(1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;

(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; or

(3) negate any rights available under the Constitution of the State of Indiana.

It is worth noting (as someone pointed out on Twitter), that the fix is the first time that the phrases “sexual orientation” and “gender identity” have been used in an Indiana statute.

Anyway, if you read Section 0.7 carefully (and I recognize that not all of you are constitutional lawyers; for the record, I’m not either…), one thing may jump out at you. Catch it? Section 0.7 says that RFRA doesn’t authorize someone to refuse services and doesn’t establish a defense for refusing to provide services, but what Section 0.7 does not do is prohibit refusing services to someone on the basis of sexual orientation or gender identity. In other words, if the law in your city prohibits discrimination on the basis of sexual orientation or gender identity, then RFRA doesn’t help you; but if your city does not include those protections (or only provides a limited subset of those protections), then you can continue to discriminate to your bigoted heart’s content; you just can’t claim RFRA as the basis for your actions.

Furthermore, look at what Section 0.7 still permits: A “provider” can’t deny employment because of a person’s sex or sexual orientation, but could use their religious beliefs as a basis for denying employment to someone who is divorced or who has a child out of wedlock (neither marital status nor parental status being protected classes … at least I don’t think they are). Of course the issue of which groups should or should not be protected classes is a much broader issue, perhaps for another time. That being said, I can’t move on to the next subject without at least commenting on the statement of Indiana State Sen. Boots who, when in the wake of RFRA was asked about extending Indiana’s civil rights protections to the LGBT community, responded by asking when he, as a white Anglo-Saxon Protestant male would have a law to protect him, too. Notice any problem with this query? Like, perhaps, the protected classes that we already have include race (white), ancestry (Anglo-Saxon), religion (Protestant), and sex (male). In other words, this “aggrieved” idiot believes that the law permits discrimination against him and he is using his own ignorance and stupidity as a sword against those who face real discrimination. <Sarcasm>I do wonder whether “stupid right-wing asshole” should be a protected class.</sarcasm> The scary thing is that someone with as little understanding as Sen. Boots … is making laws.

One more quick point on the fix: Clause (3) of the fix says that RFRA doesn’t “negate any rights available under the Constitution…” Well, duh. No statute can negate rights granted by a constitution because it’s, you know, the constitution!

Comparison to Federal Law.

I’ve alluded several times to the differences between Indiana’s RFRA law and the federal law adopted back in the ’90s. I want to take a bit of time to talk about the key differences between the two laws. I think this is important because one of the constant refrains that we heard (and keep hearing) from supporters of Indiana’s RFRA is that it mirrors the federal or law (and it was signed by President Clinton!). Similarly, supporters point to the Illinois RFRA that was supported by then state-senator Barack Obama. Even Gov. Pence made these points when he made his disastrous Sunday morning news show appearance with George Stephanopoulos.

So how does Indiana’s RFRA compare to the federal law?

The most obvious difference is the specific inclusion of businesses within the scope of RFRA’s protections. The federal law does not include businesses. Now, some have pointed to the fact that there is another federal law (the Dictionary Act) that broadly includes corporations and other similar entities within the definition of individual for definitional purposes within federal law. True enough. However, there is also a notion of common sense that comes into play as well; that is, laws that talk about people aren’t always applied to corporations even if, by technical definition, that might be the result. Thus, corporations don’t go to jail. Corporations don’t get gun or hunting permits. And corporations don’t have religions or religious “beliefs”. Well, they didn’t until Hobby Lobby.

Unlike the federal law, Indiana’s RFRA law can be invoked not only when a person’s religious exercise has been substantially burdened, but also when it is “likely to be substantially burdened.” That’s not a major difference, but it is a material broadening of the scope from the federal law.

I’ve previously discussed the expansion of Indiana’s RFRA to disputes and litigation between private parties without government involvement. That is a dramatic difference from the federal law (and from other state versions of RFRA).

It may be worth reading the comments from Sen. Chuck Schumer (D-NY), one of the co-authors of the federal RFRA law:

In the uproar over the recently passed Indiana Religious Freedom Restoration Act (RFRA), defenders of the bill like Indiana Gov. Pence are trying to hide behind the argument that the law “simply mirrors” the federal RFRA Sen. Ted Kennedy wrote and I introduced as a Congressman in 1993. That may be true only if you’re using a Funhouse mirror. In reality, it is completely false, and a disingenuous argument to boot; they should cease and desist immediately comparing the federal RFRA of 1993 to their present, misguided law.

There are two simple reasons the comparison does not hold water.

First, the federal RFRA was written narrowly to protect individuals’ religious freedom from government interference unless the government or state had a compelling interest. If ever there was a compelling state interest, it is to prevent discrimination. The federal law was not contemplated to, has never been, and could never be used to justify discrimination against gays and lesbians, in the name of religious freedom or anything else.

Second, the federal RFRA was written to protect individuals’ interests from government interference, but the Indiana RFRA protects private companies and corporations. When a person or company enters the marketplace, they are doing so voluntarily, and the federal RFRA was never intended to apply to them as it would to private individuals.

Because of these significant, legal differences, the Indiana RFRA in no way resembles the intent or application of the federal RFRA. As the signer of the bill, Governor Pence should put a stop to it immediately.

Finally, an argument can be made that Indiana’s RFRA defines religious exercise more broadly than the federal RFRA. Similarly, an argument can also be made that the requirement that religious belief be sincere is a part of the federal law not necessarily incorporated into Indiana law. Though important, I’ve elected not to dive into these areas because doing so requires far too much analysis of court decisions that: (a) I don’t have the time to do; and (b) you don’t want to read.

I think, however, that it is safe to say that Indiana’s RFRA is broadly similar to the federal law in many respects, but that it does have important differences, some of which are obvious and others of which are more subtle and may not be truly understood until the passage of time and the litigation of issues that arise. I think that it is also safe to say that the impetus for passage of Indiana’s RFRA was dramatically different than the federal RFRA (hmm, why didn’t Indiana pass a RFRA when other states did following SCOTUS’ decision that the federal RFRA didn’t apply to states)?

Remember Arizona

Governor Pence and many Indiana legislators expressed surprise at the outpouring of opposition to Indiana’s RFRA law. Many claimed that the objections were unanticipated. Frankly, those sorts of claims are nothing less that Grade A bullshit. Seriously. First, had the legislators bothered to listen to the testimony of those who spoke to the General Assembly in opposition to RFRA, they would have heard all about the concerns that became very public following RFRA’s passage. For example, consider the following portion of the testimony given by my colleague Dr. Judy Failer on behalf of the Indianapolis Jewish Community Relations Council:

First, there would be unintended consequences. Under this law, people could use their religion to justify almost any discriminatory action they choose to take in their public lives. As our colleagues at the Anti-Defamation League have pointed out, this law could permit

• an employer to say that his religion requires that he pay men more than women; or
• someone who owes money on a lien to get away with not paying his debt because he has a religious objection to paying interest[; or]
• a Jewish pharmacist [refusing] from filling a prescription for a patient he knows to be Jewish because a tablet contains gelatin and gelatin is not kosher.

In these examples, the law would permit people to use their religion to discriminate against others, and this is wrong.

As members of a religious minority, we ALSO worry that people would use this law to justify discrimination specifically against other religious minorities. This law would permit

• a Christian hotel owner to refuse to rent rooms to Jewish people who would use their rooms for prayers; and it would permit
• a Muslim-owned cab company might refuse to drive passengers to a Hindu temple[; and] It would also permit
• a modern day Pagan could refuse to lease his commercial space to a store-front church.

The language of these bills certainly permits these scenarios, and that in itself is a problem.

Each of us here today knows that these actions are wrong. And, we all would hope that judges hearing these cases would decide — as some judges have done in other states — that antidiscrimination is enough of a compelling governmental interest to overcome the presumption set out in this law.

The Indiana Constitution already provides a strong foundation of religious freedom, stronger in-fact than the U.S. Constitution. And, antidiscrimination laws in this state DO protect us against discrimination based on religion. But if someone were to use his religion to discriminate against people based on some other kinds of characteristics, our judges would be unable to prevent it.

I don’t believe that anyone intends to lay the groundwork for these awful scenarios, but these bills, as framed, could unintentionally do just that.

However, speaking as someone who has testified to the General Assembly on several occasions, it is sadly quite rare to find legislators who attend hearings and who do so with an open mind or even a modicum of interest in what the “other side” has to say. Far too often, legislators, if they show up at all, sit quietly at their desks doing other work paying little, if any, attention to those who are testifying. Their minds are already made up, even if they don’t have much understanding of what proposed legislation will or won’t do.

Moreover, as I’ll discuss in a moment, any legislator paying attention to the proposed amendments to RFRA should have understood the nature of the concerns.

Finally, how are we supposed to accept the notion that legislators were “surprised” or that outcry was “unanticipated” when Arizona went through an almost identical upheaval and uproar just a a year ago? In January and February 2014, the news was abuzz with a very similar law passed in Arizona. That law, like Indiana’s RFRA law, would have given businesses the right to discriminate against members of the LGBT community. Businesses like Delta Airlines, Major League Baseball, and, perhaps most importantly, the NFL and Super Bowl host committee spoke out against the bill. Groups threatened to cancel conventions or move them elsewhere. Boycott movements sprung up. And in the end, under intense public scrutiny and pressure, Arizona Gov. Jan Brewer vetoed the bill.

But just a year later, Indiana legislators passed and the Governor signed a very similar law and were “surprised” by the reaction.

Like I said: Bullshit.

Let’s also remember what Advance America and similar groups who supported RFRA (and who opposed same-sex marriage) were telling their supporters (and legislators):

1. Christian bakers, florists and photographers should not be forced by the government to participate in a homosexual wedding.
2. Pastors should not be forced by the government to conduct a homosexual wedding at the church.
3. A pro-life business owner should not be forced by the government to rent his facility to a pro-abortion group.
4. A pro-life business owner should not be forced by the government to provide abortion coverage for his employees.
5. A Christian business owner should not be forced by the government to permit a male cross-dresser to use the women’s restroom.

[Emphasis in original.] But note that in none of these examples is the “aggrieved” party actually exercising religion. The Christian baker, florist, and photographer aren’t engaging in prohibited (male) homosexual acts or actually marrying someone of the same-sex; the pro-life business owner is neither getting an abortion or even advocating in favor of abortion; and the Christian business owner isn’t engaging in any act prohibited by a religion that I’m aware of if he permits a cross-dresser to use a women’s restroom (and even if there is a religious prohibition on wearing the clothing applicable to the opposite sex [which, I’ll note, women do all the time…], how is the Christian business owner violating that religious prohibition by letting the cross dresser into a restroom?).

As a brief aside, I find it interesting that those who oppose same-sex marriage (or homosexuality in general) are so worked up by and so focused upon the notion of a man dressing as a woman in order to use a women’s restroom. Consider the comments of Presidential contender (and general idiot) Mike Huckabee earlier this week:

“Now I wish that someone told me that when I was in high school that I could have felt like a woman when it came time to take showers in PE,” Huckabee said. “I’m pretty sure that I would have found my feminine side and said, ‘Coach, I think I’d rather shower with the girls today.’ You’re laughing because it sounds so ridiculous doesn’t it?”

Would you really choose to live your life in drag, subjecting yourself to all sorts of hate and abuse, putting your job and physical well-being at risk, just to see women in a restroom? Yet that seems to be the thinking with regard to transgender individuals repeatedly expressed by same-sex marriage and equality opponents.

Note further the common use of terms like cross-dresser or just references to a “man wearing a dress” rather than focusing on the true nature of the individual as transgender (or a member of any of a host of other gender queer categories). Those, like Mike Huckabee, who oppose transgender rights just can’t seem to wrap their heads around the notion of people having different understandings of self than may be presented by biology. And, unfortunately, they don’t seem particularly interested in learning. Or caring. Just denigrating and discriminating. Or worse.

Ah, but the plight of the transgender community is a topic for another day.

Anyway, back to the claim of “surprise”…

A further point that I’d almost completely forgotten, is that Republicans tried to pass a sort of mini-RFRA in 2014, immediately after the failure of the marriage discrimination amendment. That bill would have allowed certain businesses that do business with the State of Indiana a right to discriminate on religious grounds. The bill was tabled after it received criticism and after concerns with the use of “religious freedom” to condone discrimination were raised. So are we really supposed to believe that legislators were “surprised” about the criticism to a broader bill introduced less than a year later?

Um, no.

I can’t move on without at least mentioning some recent comments by Sen. Kruse:, the sponsor of the Indiana RFRA legislation:

“For some reason the media and gay community surrounded us with this discrimination thing. This bill was not designed to do anything with discrimination in general. It was just one of those issues that got out of hand and out of control.”

“As we got closer to that time, more attention was coming to Indianapolis and I think people just jumped on that,” said Kruse. “We were the center of the American news and we were thinking why doesn't some other catastrophe happen and the news go cover a Nepal earthquake or something”.

He wanted a catastrophe to take attention away from the bad law that he sponsored? Really? Oh, and for those who are unfamiliar with Sen. Kruse, he is the legislator who has sought to have children in public schools recite The Lord’s Prayer each day, wanted to give parents some kind of “liberty” in how they raise, educate, and discipline their children, believes in far right conspiracy theories like Agenda 21, wanted public schools to teach creation theories, and wanted FBI agents to get permission from county sheriffs before serving warrants for federal crimes. That is who sponsored RFRA in Indiana. Perhaps just recognizing the worldview from which Sen. Kruse comes to issues like “religious freedom”, same-sex marriage, and discrimination should be enough to put most people on the opposite side of any legislative initiative Sen. Kruse supports.

Proposed Amendments Demonstrate Intent

Proponents of Indiana’s RFRA insist that the purpose of the law was not to permit discrimination. Further, they argue that they were surprised by the backlash against the law which they claim was unanticipated. One of the easiest ways to analyze these claims, however, is to review the amendments that were offered by Democrats during the discussion of and votes on passage of RFRA. All of these amendments failed to pass and the votes were largely on party lines (which, given the Republican super-majority in both chambers, means that the votes weren’t even close). As you read these proposed amendments, keep the foregoing discussion in mind and then ask yourself why some of these proposed amendments were not adopted, especially if the intent of the bill was, as claimed, not to permit discrimination. Try to articulate an explanation for why you would vote against one of these amendments if your purpose in voting for RFRA had nothing to do with permitting discrimination.

Senate Amendment No. 1 (failed 40-10) introduced by Sen. Tallian (and almost identical to House Amendment No. 6) would have required a business that uses RFRA as the basis of a refusal to serve someone to first post a conspicuous sign telling potential customers that the business believes that a particular law or ordinance burdens the business’ religious exercise and identifying the groups or classes of individuals who will not be served by that business. In other words, the bakery would have to have a sign that says, “We believe same-sex marriage burdens our religious beliefs, so we do not bake cakes for same-sex weddings.” Now, I’ll agree that seeing signs like that would be a bit … weird. It would be a bit like seeing a sign that says “No Blacks Allowed”. But if the purpose of RFRA was not to allow a business to discriminate, then what is the problem with asking a business that does choose to discriminate from saying so in advance? If RFRA really isn’t about discrimination by businesses, then none of these sorts of signs would be posted, right? If, however, RFRA really is about giving businesses the right to discriminate, then why shouldn’t the public know in advance whether a particular business will invoke its religion to refuse service?

Senate Amendment No. 3 (failed 40-10) took a different approach. That amendment, also introduced by Sen. Tallian, simply replaced the word “person” with “individual” and deleted the definition of “person” that included corporations. As discussed above, the inclusion of businesses within the definition of “person” in RFRA essentially gives businesses a right to practice a religion. Now think back to the cases for which the original federal RFRA was intended to address (Native Americans smoking peyote as part of a religious service). Do you really think that those who passed the original RFRA legislation contemplated extending the notion of religious exercise to for-profit corporations? Certainly, Sen. Schumer didn’t think that was what his legislation was intended to address. Moreover, if the intent of Indiana’s RFRA law isn’t to permit a business to discriminate, then why do we need to include businesses within the protections of RFRA? A business isn’t going to Hell for failing to go to church on Sunday; a business doesn’t go to confession or take communion or even pray. So what exactly is it that a business is doing that really qualifies as the exercise of religion such that it needs protection via RFRA. Why couldn’t RFRA be limited to protecting individuals?

Senate Amendment No. 4 (failed 40-10), introduced by Senate Minority Leader Lanane would have added the following to RFRA:

This chapter does not apply to (1) IC 22-9-1 (Indiana civil rights law); or (2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.

Curious, isn’t it, that if RFRA was not intended to permit discrimination, an amendment exempting the civil rights law or local non-discrimination ordinances from RFRA was defeated. If you advocate for RFRA but vote against an amendment to prohibit discrimination, then aren’t you, in essence, advocating for the right to discriminate? I’d really like to hear some of the proponents of RFRA explain why they voted against this amendment if RFRA wasn’t intended to permit discrimination.

And remember when I discussed the right of the person successfully asserting a RFRA claim to receive attorneys’ fees but the lack of a corresponding right of the government in the case of an unsuccessful suit? Well Senate Amendment 7, offered by Sen. Broden would have changed that provision so that the “prevailing party” could have recovered fees. It failed. Now think about that for a moment. Those who voted for RFRA agreed that the government should pay attorneys’ fees to a person (or business) who sued on the basis of RFRA (or used RFRA as a defense), thus putting the State’s coffers (your tax dollars) at risk, yet they voted against making those people (or businesses) pay the State’s costs (i.e., repay you) if their RFRA claim was unsuccessful. Again, why? Why the difference in treatment?

Over in the House, Rep. Riecken offered House Amendment No. 1 (defeated 61-30) which would have added the following as an alternate exemption to RFRA (in addition to the compelling interest and least restrictive means exemption):

the governmental entity is applying or enforcing a statute, an ordinance, a resolution, an executive or administrative order, a regulation, or a custom to protect the health, safety, or welfare of a child.

I can see you scratching your head at this one and thinking, “Gee, wouldn’t protection of children be a compelling governmental interest?” Maybe not. As mentioned above, childcare advocates have been trying for years to get statewide laws to regulate so-called “childcare ministries” so that they would need to meet certain basic safety standards. Only in the last few years has the General Assembly been able to pass the most basic of regulations over the objections of (primarily) the religious right who sees these sorts of regulations (you know, like a requirement for smoke detectors or clean drinking water) as infringing on their religious freedoms. Seriously. So if the state can’t pass more stringent and far-reaching regulations, it seems dubious that a local community could successfully argue that it’s own more stringent ordinance could be deemed to be “compelling” if that same interest wasn’t compelling enough to sway the General Assembly to act. Or what about a parent who severely injures a child because his religion demands extreme discipline. And let’s not forget female genital mutilation and faith healing. This amendment might have been useful should those sorts of situations and defenses arise. Alas, it appears that RFRA’s supporters value religious freedom more than the safety of children. Good to know. And consider further than this House Amendment 1 was limited to children. Rep. Riecken didn’t try to exempt the health, safety, or welfare of all Hoosiers; just children. And yet 61 representatives voted against that exemption.

House Amendment No. 2 (defeated 60-31) introduced by Rep. DeLaney has several interesting ideas, none of which was adopted. First, the proposed Amendment would have stated categorically that “protecting the welfare of a child from abuse or neglect” and “protecting the health, safety, and welfare of the public, including protection against discrimination on any ground prohibited by federal, state, or local law” were compelling governmental interests. Wouldn’t you like to hear a RFRA proponent explain why that language wasn’t adopted? Note that the language doesn’t say anything about “least restrictive means”. It just identifies certain categories of law and makes a claim (which could be rebutted in court) that those laws serve compelling governmental interests.

House Amendment 2 also would have clarified one of the problems that I identified above with regard to the definition of “exercise of religion” by replacing the phrase “any exercise of religion” with “the practice or observance of religion.”

House Amendment 2 would have also changed the portion of the definition of “person” relating to churches and the like by limiting those types of organizations that are included in that portion of the definition to organizations that are tax exempt organizations under the Internal Revenue Code.

Finally, House Amendment 2 would have added limitations so that RFRA could not be used: (a) “in a criminal case involving a sexual offense or other abuse committed against a minor”; (b) by a public official to refuse to “faithfully and truthfully execute all duties required by the employee’s or officeholder’s oath of office”; or (c) to “justify practices inconsistent with the standards of care or service applicable to licensed professionals”.

The prohibition I’ve set forth as (c) would go directly to the pharmacist’s conscience defense that I’ve discussed previously; it would also prohibit, say, a doctor from refusing to perform an emergency abortion necessary to save a woman’s life. It would also prohibit a doctor from giving incorrect medical advice (such as the use of birth control medications to address other problems) because the doctor’s religious beliefs don’t condone the appropriate medical remedy or response. But that provision was defeated.

The provision I’ve enumerated above as (b) would, for example, prohibit a county clerk from refusing to issue a marriage certificate to people that the clerk doesn’t believe should be able to marry (and go beyond same-sex marriage here; think about interracial marriages, interreligious marriages, and marriages between previously divorced people). It would also prohibit a judge from making a ruling (or refusing to act in accordance with law) because of that judge’s religious views. Just imagine a judge who refuses to convict a man of spousal abuse because the judge believes, on the basis of his religion, that women submit to their husbands. Or what about a policeman who refuses to arrest someone for beating up a gay man or a fireman who refuses to put out a fire at a mosque … on religious grounds? Or maybe just a police officer who refuses to guard a gay pride parade? North Carolina just passed a law (and is in the process of overriding the Governor’s veto) that would allow state officials to refuse to issue marriage licenses on religious grounds, even if the couple is lawfully entitled to a marriage license.

And provision (a) … well, does that really need any explanation at all? I suppose that those who voted against that provision think that a person who sexually abuses a child should be allowed to say, “Well, my religion permits it!” What other explanation can there be for not passing that exemption? If you have a chance to talk to a Republican representative, you might ask why they voted against that sort of provision.

House Amendment No. 3, also introduced by Rep. DeLaney, has what I think is one of the most important provisions that was left out of RFRA, though I’ll acknowledge that adding this provision would also open a whole new can of proverbial worms:

A person asserting a claim or defense [under RFRA] must demonstrate that the claim or defense is based upon the person’s sincere religious belief.

Unless I’m mistaken, many of the state RFRA statutes include the notion of “sincere religious belief” and federal jurisprudence on what the Free Exercise Clause of the First Amendment protects is also grounded in the notion of sincere belief. Of course, the problem is that courts are loathe to involve themselves in determining which beliefs are sincere. But if someone (especially a business) is going to use religion to discriminate against someone else or avoid the mandates of a law of general applicability, shouldn’t there be some kind of test to be sure that the religious belief is sincere (or even sincere-ish) and not, for example, made of out whole cloth solely as an excuse to discriminate or to “opt out” of complying with a law? Without this sort of requirement, the new Church of Cannabis that was created to avoid marijuana rules should, I think, stand a very good chance of success using RFRA as a defense to prosecution.

Finally, House Amendment No. 5 (defeated 60-31), again introduced by Rep. DeLaney, expressly stated that the protection of civil rights and the prevention of discrimination were each compelling government interests. Apparently, 60 Republicans disagree. Is it, therefore, safe to argue that those 60 Republicans believe that it is not a compelling governmental interest to prevent discrimination? And if the government doesn’t have an interest in preventing discrimination, just who will prevent it? Or do they just not care or even want to see discrimination against certain “undesirable” elements of the community?

Letter from Law Professors

Before concluding, I want to highlight a few sections from a letter organized by Columbia University School of Law that was sent to Rep. DeLaney. The letter was signed by professors from fourteen law schools, and included twelve signatories from Indiana law schools, including Jeannine Bell, Aviva Orenstein, Carwina Weng, Deborah Widiss, Susan H. Williams, Shawn M. Boyne, Jeffrey O. Cooper, Jennifer Drobac, Rob Katz, Fran Quigley, Florence Wagman Roisman, and Lea Shaver.

Religious liberty, while fundamental, finds elevated protection under the Indiana Constitution along with other fundamental rights, and the hard work of the courts has been to find the proper balance among those rights.  As the Indiana Court of Appeals observed when it denied a state police officer’s plea for an exemption from working as a riverboat gaming agent on account of his religious objections to gambling: “Churches, and by implication the religious freedoms enjoyed by worshippers, are subject to reasonable regulations, not tantamount to alienation, by the State to the extent as might be required to promote the public health, safety, or general welfare … Law-enforcement agencies need the cooperation of all members … Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical. Just so with police.”

Federal free exercise doctrine follows a similar trajectory. A longstanding constitutional principle has held that neither the government nor the law may accommodate religious belief by lifting burdens on religious actors if doing so shifts those burdens to third parties. We see this principle enshrined in the U.S. Supreme Court’s recent decision in Holt v. Hobbs, a case in which a prisoner of faith sought an exemption from a prison no beard-policy because his sincerely held religious beliefs required him to wear a short beard.  The Supreme Court found unanimously that the Religious Land Use and Institutionalized Persons Act (RLUIPA) required that the Arkansas Department of Correction accommodate the prisoner’s religiously-based demand for an exemption from the no-beard policy. The unanimity of the decision turned on the fact that no third parties were required to bear the cost of the requested accommodation. The Supreme Court has consistently held that the government may not accommodate religious belief by lifting burdens on religious actors if that means shifting meaningful burdens to third parties. This principle protects against the possibility that the government could impose the beliefs of some citizens on other citizens, thereby taking sides in religious disputes among private parties. Avoiding that kind of official bias on questions as charged as religious ones is a core norm of the First Amendment.

…

[Advocates who favor the proposed state RFRA have argued that the proposals, at their core, mirror the federal RFRA, and that the federal law, in place since 1993, was supported by a wide coalition of Republicans and Democrats – and indeed, was signed by President Bill Clinton.  It is argued that given this bipartisan support for the federal RFRA in 1993, the proposed state RFRAs, mirroring the text of federal law, should also receive bipartisan support. However, this parallel between support for the federal RFRA and the proposed state RFRA is misplaced. In fact, many members of the bipartisan coalition that supported the passage of the federal RFRA in 1993 now hold the view that the law has been interpreted and applied in ways they did not expect at the time they lent their endorsement to the law. As a result, the legislators who voted on RFRA have distanced themselves from their initial backing of the legislation. This fragmentation occurred over questions such as the application of RFRA-based rights as a defense to liability for housing discrimination, the debates concerning the never-enacted Religious Liberty Protection Act (RLPA), debates over the scope and meaning of the Religious Land Use and Institutionalized Persons Act passed by Congress in 2000, and disagreement as to whether corporations of any size or corporate form could be religious liberty rights-holders.

…

In our expert opinion, the clear evidence suggests otherwise and unmistakably demonstrates that the broad language of the proposed state RFRA will more likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests.  This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so.  Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.  As we have learned on the federal level, RFRAs do not “open a door” to conversation, but rather invite new conflict that takes the form of litigation. This collision of public rights and individual religious beliefs will produce a flood of litigation, whereby Indiana courts will be asked to rebalance what has been a workable and respectful harmony of rights and responsibilities in a pluralistic society

[Internal citations and footnotes omitted.] The full text of the letter is available here.

Conclusion

At its most basic, some form of RFRA is probably a good idea. I think that we’re all concerned with the possible application of law that would stop us from doing things that our faith requires (Native Americans and peyote) or force us to do things our religion prohibits (such as requiring a pacifist to serve in the military). However, I believe that these recent incarnations of RFRA are really aimed at protecting a different set of concerns and addressing a different set of issues. There is an enormous difference between protecting a person from being unable to actively practice what their religion requires or forcing them to do what their religion prohibits and allowing a person to use his or her religious views as grounds to do or not do something that has an impact on a third party. There is a difference between doing something and being paid to have a business relationship with someone else who is doing something. There is a difference between engaging in prohibited conduct and being associated with an event or with people who might engage in disfavored conduct.

And there is an even bigger gap between the idea of protecting an individual who wants to practice his or her religious observances and obligations and protecting a business that wants to use the religious views of its owners to discriminate against those who might not share those same beliefs.

Unfortunately, it seems clear to me that Indiana’s adoption of RFRA was not really about protecting the Native American who wants to smoke peyote, the Muslim prisoner who wants to grow a short beard, the Santeria priestess who wants to ritually slaughter a chicken, or the Jewish family who wants to serve a little wine as part of a bar mitzvah ceremony. Rather, it was about protecting mostly evangelical Christians who are so worked up over same-sex marriage that they felt that their religious views were “under attack” and needed to be prevented. It was about giving one group an “out” so that they wouldn’t have to have involvement with people who have worldviews that are different from their own. It was about trying to let those people hold back the ever-flowing tide of progress, in particular progress toward tolerance and equality.

We must also be wary of “pick-and-choose” or “cafeteria” theology that makes no real demands upon people and which offers them the ability to obey just those rules that they like but which can then also serve as a sword to be used against others or a shield to be used when convenient. I’m not suggesting that people shouldn’t have the right to pray and believe as they choose; hey, that describes my approach to faith. But I have grave concerns when people ignore all sorts of religious obligations and prohibitions, but make an active effort to choose and prioritize those prohibitions that have little or no impact upon the “believer” but a severe impact upon others. I may not be the most observant Jew; I’ve chosen which elements of my religion I do and don’t want to make a part of my everyday life and my belief structure. But I don’t take those choices or other Biblical commandments or prohibitions and try to force others to live by those dictates. I don’t try to stop others from eating pork just because G-d said “yuck” and I don’t try to keep the schools from serving pork, either. I don’t try to outlaw barbershops or football. And I wouldn’t avoid a wedding just because they planned to serve shrimp cocktails.

So, while I may support the core notions behind RFRA, as initially codified, the purpose and nature of the law have changed dramatically. No longer can RFRA be seen as, primarily, an innocuous law that would have little effect; rather, it has become a sword that can be used to cut at the fabric of our civil society and to further segregate and separate people on the basis of certain characteristics. And that is an idea with which I fundamentally disagree. It is an idea that frightens me. Perhaps those who are pushing this sort of legislation should try living as part of a minority community that has faced discrimination. Yeah, right.

Please, when considering the impact of laws like RFRA, stop thinking of them — or allowing them to be framed — solely with regard to impacts upon the LGBT community. Instead, ask yourself if you would be comfortable with the same result if it were applied to someone on the basis of their race or religion. Should the florist be able to refuse service to the gay couple, but not the black couple or the Muslim couple? And think beyond just discrimination. Think about women in small towns who might be denied birth control because their local pharmacist believes that birth control violates his religious belief.

Moreover, if the purpose of Indiana’s RFRA law really wasn’t about giving a right to discriminate against homosexuals, then why didn’t Republicans accept proposed amendments that would have addressed that concern?

Protecting true religious liberty and freedom is important; it is bedrock to our society and our Democratic system. But we can’t allow prejudices and bigotries to work their way in (or back in) to our society and culture. We need to be clear in our understanding of the difference between religious liberty as expressed in individual exercise of religious obligation and prejudice that uses religious belief as an excuse to keep away those that religious dictates hold in disfavor. If your religion says that same-sex marriage is wrong, then don’t have a gay wedding; but just because your religion says that same-sex marriage is wrong doesn’t mean that your religious views should prevent others from doing certain things or give you an excuse to discriminate against those who hold different, especially minority, views.

The notion of religious liberty exists to protect each of us from a majority that might want to stop us from doing those things that our religion demands (or force us to do those things that our religion prohibits). Religious liberty does not exist to keep us from being offended by how others live their lives or by what they choose to believe. Freedom is about the individual; it is not about corporations and it is not about giving an individual a right to impose their belief structure upon others or to wield those beliefs as a sword against those who hold different beliefs. That is the concept that has been lost in the years between the peyote smoking Native Americans and the florist, bakers, and photographers opposed to same-sex marriages.

I hope that you can see the difference.

Indiana Pastors Alliance Open Letter in Support of RFRA: My Response

By now, I’m sure that most of you have seen the open letter from the Indiana Pastors Alliance to Gov. Pence and the Indiana General Assembly that was published in The Indianapolis Star late last month. I’m still working on my (lengthy) deep dive into the Religious Freedom Restoration Act (RFRA) and the so-called “fix”, but in the meantime, I wanted to address some of the statements and claims in that open letter. Taking the time to write this post has given me a bit of a needed breather while I work on that post.

A few preliminary points: First, this is not the first time that The Indianapolis Star has given Pastor Ron Johnson (the author of the letter) a prominent spot in the paper to espouse his intolerant views. In January 2014, as debate raged about amending the Indiana Constitution to prohibit same-sex marriage, Pastor Johnson was featured in a front page article. I examined the views that he expressed in that article (and in an accompanying video) in my January 21, 2014 post “A Closer Examination of The Indianapolis Star’s ‘Gay Marriage Ban: The Case Against’”.

Second, this was the first time that I’ve heard of the Indiana Pastors Alliance (IPA). As you’ll see, in the letter, Pastor Johnson claims that the IPA represents “millions of Christians”. I was curious to know which churches and denominations were members of the IPA. So I Googled and found the home page of the Indiana Pastors Alliance. Based on the archive of posts, it appears that the group only came into existence in February 2015. However, a Facebook page for the group appears to have been created back in 2012. Oddly, though, for a group that claims to represent “millions” and which has had a Facebook page for 3 years or so, they have a paltry 470 likes (as of yesterday). Hmm. By comparison, the Facebook page for the Indianapolis Jewish Community Relations Council, which claims to represent tens of thousands (rather than millions) of Hoosiers has 422 likes. Oh, well. (And I can’t help but mention that on May 5, 2014, the IPA Facebook page posted a video with a “powerful, prophetic word for America” featuring a so-called Messianic Jewish Rabbi; in other words, a Jew who has rejected Judaism in favor of Christianity.)

More importantly, the website for the IPA claims that “The Indiana Pastor’s Alliance is a network of clergy, churches and Christian organizations who have come together to advance and defend the cause of faith, family and freedom throughout our great State.” However, nowhere on the website is there any mention of who any of these clergy, churches, or Christian organizations are. In fact, there is no identifying information of any sort other than Pastor Johnson. IPA’s “About” page says more about Pastor Johnson than about the group itself. And color me surprised when I noticed that every single post on the the IPA’s website was written by Pastor Johnson. Look, I don’t know if IPA is just Pastor Johnson or if there are thousands of other clergy, churches, and organizations who actually are members. But before news organizations simply accept the claim that the Indiana Pastors Alliance does, indeed, represent “millions of Christians” and gives Pastor Johnson attention and an opportunity to express his views, it would be nice to see a little, you know, journalism. Yeah, probably asking too much…

Oh, and two more things that I found interesting when I looked at the IPA website. First, they talk about their supporters and co-sponsors (I’ve added links for the referenced groups):

Events and programs of the Indiana Pastors Alliance are often co-sponsored or supported by the Family Research Council, Focus on the Family and the Alliance Defense Fund.

(Interestingly, the Alliance Defense Fund changed its name to the Alliance Defending Freedom way back in 2012, yet the IPA doesn’t seem to have noticed…) And then in its mission statement, the IPA strikes what can only be described as a militant posture (emphasis added):

We are convinced that pastors are the key to seeing a revolution of righteousness take place across America. The fuel for the fires of the first American Revolution came from biblically saturated pastors who stood boldly in their pulpits and courageously proclaimed God’s principles for liberty. They willingly took their posts as “watchmen on the wall” and became prophetic voices of both encouragement and warning. As a result of their firm, passionate leadership, the people turned to their pastors and clergy for moral strength, guidance, and direction.

We believe the time is NOW to form an alliance of like-minded pastors and clergy who are committed to seeing spiritual awakening in our State and our Nation. The Old Testament nation of Israel provides a great model for our alliance. While there were twelve tribes, each with their own unique tribal distinctions, they came together for two purposes: to worship & to war. Yearly celebrations were established for the purpose of prayer and worship. And when their adversaries attacked, each of the tribes came together under one banner with one strategy to defeat the enemy.

This is our vision for the Indiana Pastors Alliance. What would the Lord do if we came together at strategic times for encouragement, equipping and prayer? What could happen if we took the time to build relationships with other Christian leaders who were praying and working together for spiritual awakening? What if we had a unified strategy and a single voice when confronting issues like the attack on traditional marriage, hate crime legislation, pornography, rampant sexual permissiveness, the undermining of a biblical worldview in our public schools, abortion, the attack on religious liberty and speech and a host of other evils that seek to destroy the core teachings of our Christian faith?

So, with that background in mind (and I’m not going to spend any time dissecting it…), let’s see what Pastor Johnson has to say on behalf of the “millions of Christians” that he claims to represent.The original letter is presented indented and in green with my commentary un-indented and in black.

Dear Governor Pence and the State Legislature of Indiana:

Not exactly a great start given that the “State Legislature of Indiana” is actually called the “Indiana General Assembly”. Ah, but why quibble.

We are writing on behalf of the Indiana Pastors Alliance and the millions of Christians we represent across this state who feel deeply betrayed by your leadership. As pastors, we recognize the recent legislative debacle surrounding the Indiana Religious Freedom Restoration Act (RFRA) is not the sole responsibility of any one individual. We recognize that when political activity occurs there can be a variety of culprits and innocents in what has turned out to be one of the worst legislative decisions in recent history. That being the case, it does not absolve your actions nor does it remove your responsibility in the final legislative outcome.

Again, I’d really like to know who the “we” really is or how Pastor Johnson calculates that they represent “millions of Christians”. It’s worth noting that Indiana’s population is only about 6.5 million. So, if the IPA represents “millions” (i.e., at least 2 million), then they claim to represent no less than one-third of the population of the State. Sorry, but color me at least a bit skeptical.

Pastor Johnson and the IPA claim that they feel “betrayed” by Gov. Pence’s “leadership”. My question here is just what “leadership” they are referring to? I’m not sure that I’ve really seen Gov. Pence do much leading. But that’s a discussion for another day, I suppose…

I’d like to think that when Pastor Johnson refers to the “legislative debacle surrounding” RFRA he meant the backlash against the law; alas, as we’ll soon see, I think that the word “debacle” in his mind was the decision to craft and pass a “fix” for the law. Similarly, when he refers to “one of the worst legislative decisions in recent history,” I don’t think he means passage of RFRA in the first place, but rather the decision to “fix” it. But his choice of the words “culprits and innocents” is … well … interesting. Apparently, as I think we’ll see, those who opposed RFRA or sought to “fix” it are the culprits in this act while those who did nothing more than seek government sanction to discriminate against people are the “innocents”. Noted.

We are acquainted with, and tired of, the increasingly used excuses that compare the ugliness of legislation with “sausage-making”. We are aware of the “back-room deals” that make finding culpability nearly impossible as blame is shifted from person to person or simply allowed to taint the whole legislature. But one thing remains clear, this “fixed” RFRA legislation has opened the door to a trampling of our liberties, and we are deeply concerned. We longed to see our leaders demonstrate moral courage in protecting the religious liberty of all Hoosiers and they capitulated, despite all well-crafted protestations to the contrary. There are few ways this could be interpreted besides betrayal. We are grieved more than you could possibly know.

So next Pastor Johnson launches into what can only really be seen as an attack on the basic functioning of the democratic legislative process. You see, the phrase “sausage-making” as used to describe the legislative process usually refers to the need to find consensus via compromise. Not everyone gets what they want but legislators work together to craft something that has sufficient support for passage (at least that’s how it is supposed to work; but in a legislature where one side has supermajorities in both houses, the sausage-making analogy may be a bit thin).

And then Pastor Johnson finally gets to the meat of his argument: the “fixed” RFRA “has opened the door to a trampling of our liberties”. Really? Let’s remember just what that “fix” really entailed (and I’ll dive into this in much greater detail in my expansive RFRA post):

This chapter does not:

(1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;

(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; or

(3) negate any rights available under the Constitution of the State of Indiana.

That’s it. That’s the so-called “fix” that Pastor Johnson claims will trample liberties. It’s worth noting that the definition of “provider” that was also a part of the “fix” specifically excludes churches, nonprofit religious organizations (including schools), and clergy. So just how does the “fix” open the door to a trampling of liberties? The only way to make sense of this argument is to recognize that what Pastor Johnson and others like him are saying is that, in their view, liberty is trampled if discrimination is prohibited. But note that the “fix” only means that you can’t use RFRA to discriminate; however, because sexual orientation and gender identity aren’t protected classes in most of Indiana, people remain free — or have the “liberty” — to discriminate against others on the basis of sexual orientation or gender identity throughout most of the State.

And ask yourself this: Who, other than members of the LGBT community do Pastor Johnson and his flock want to discriminate against? Or are we to believe that religious liberty is only about “the gays”?

Pastor Johnson has the gall (I was going to say chutzpah, but … no) to claim that legislators failed to “demonstrate moral courage in protecting the religious liberty of all Hoosiers”. Um, wow. Really? You see, Pastor Johnson, some of us would argue that true moral courage comes not from capitulating to the will of the majority and its fear-mongering, but rather in standing up for the unpopular, mistreated, aggrieved minority. It’s easy to say, “my constituents don’t like gays, so I’m going to vote to allow them to discriminate against gays”; it’s much, much harder to say, “even though my constituents don’t like gays, I’m going to support gay rights because protecting the minority is a core principal of our democracy.” But I suspect that Pastor Johnson is less than enamored with democracy and the democratic process and would prefer a theocratic system (so long as people with the “right” beliefs are in charge). What? You think that’s an overstatement? Keep reading.

And I’m sorry, but I don’t care how often you repeat it, I simply do not accept the claim that being allowed to discriminate is a principle of religious liberty. The right to own slaves wasn’t a religious liberty; the right to turn people away because of skin color isn’t a religious liberty; and the right to treat members of the LGBT community in a discriminatory manner isn’t a religious liberty.

Governor Pence, we are hurt and disappointed. As the Chief Executive of the state of Indiana, you were the “face” of this RFRA legislation and someone we trusted as a friend and defender of religious liberty. Your desk was the final stop for the bill that purportedly “fixed” this piece of legislation. You received godly counsel from strong and knowledgeable leaders from across our nation who encouraged you to stand strong and to veto this legislation. You failed. In doing so, you betrayed the trust of millions of Hoosiers who elected you to protect the liberties we hold dear.

Poor Pastor Johnson is “hurt”. Aw. Don’t you feel sorry for him? I mean now he’s going to have to … um … er … well, he’s not going to have to do anything. But businesses owned by his flock, in some parts of Indiana, won’t be able to turn away gays. Now, compare that “hurt” to the feelings of those in the LGBT community who can be turned away from a business, who can be denied housing, who can be fired or denied employment, just because they are gay. So, Pastor Johnson, please take that “hurt” of yours and … well … I’ll try to keep this more civil than that. But it makes you wonder if Pastor Johnson has ever taken the time to really learn about the issues and concerns facing the LGBT community or if he would just prefer to denigrate them from afar.

Now Pastor Johnson is certainly correct in noting that Gov. Pence became of the “face” of RFRA. You probably saw Gov. Pence’s face on TV making a fool of himself as he tried to explain the law with half-truths and platitudes (or worse). As a result of the “face” of the legislation, Indiana is now spending millions to try to clean up and resuscitate the State’s public relations.

I note that Pastor Johnson focuses on the “godly counsel” that Gov. Pence received. I’m curious to know whether Pastor Johnson would argue that the counsel from religious leaders who hold a different view (say, for example, most Jewish clergy, or clergy for the Disciples of Christ) was somehow “ungodly”? And I note that Pastor Johnson sort of glosses by citing the precise chapter and verses in The New Testament when Jesus says, “thou shalt not provide flowers to a gay wedding” or “gays are damned and must therefore be denied pizza”. Maybe it’s in one of those little-noticed footnotes?

Pastor Johnson is also angry that Gov. Pence “betrayed the trust of millions of Hoosiers”. Hmm. I wonder whether it crossed Pastor Johnson’s mind that Gov. Pence upheld the trust of people who think that the role of a governor is to protect all of his or her citizens and not sign legislation that harms one group for the benefit of another. Oh, and let’s not forget that Gov. Pence did not receive a majority in the 2012 election. He just got more than the other candidates did. But the presumption that all but a loud few hold beliefs similar to Pastor Johnson is hard to shake … at least by those holding those beliefs.

Representative Bosma and Senator Long, it is clear that your actions were the driving force behind this cowardly capitulation. During your press conference, you continued to repeat a narrative that is both deceptive and dangerous. You state that you are committed to an Indiana where religious rights and individual rights coexist in harmony. While this sounds wonderful, we all know that the demands of the LGBT lobby make this untenable with those who profess faith in Christ and faithfulness to the Scriptures. It was clear from the press conference that the next “discussion” will involve the creation of sexual orientation and gender identity as a special protected class in Indiana. Leadership from the gay community told all who were listening that this will become a reality in Indiana.

I’ve met both Sen. Long and Speaker Bosma. We don’t always agree, but I think that we have very cordial relationships. Somehow, I doubt either of them will take particularly kindly to being called “cowardly”. And from what I’ve learned about politics, attacking legislators on your side of the aisle with attacks like this is not the proverbial way to make friends.

The language that you really need to focus on, though, is what Pastor Johnson says next (emphasis added):

[Y]ou continued to repeat a narrative that is both deceptive and dangerous. You state that you are committed to an Indiana where religious rights and individual rights coexist in harmony. While this sounds wonderful, we all know that the demands of the LGBT lobby make this untenable with those who profess faith in Christ and faithfulness to the Scriptures.

Wow. Just … wow. I want to talk about this some more, but in order to do so, it’s worth noting how Pastor Johnson begins his very next paragraph, especially when read in light of the emphasized material I’ve just quoted: “As Christians, we have no problem demonstrating tolerance for others.” Compare that with the statement that the “demands” of the “LGBT lobby” make coexistence between individual and religious rights “untenable”. (Oh, and ask yourself what the difference is between “religious rights” and “individual rights”. Do religions themselves have rights separate from or different than the individuals who express belief in or consider themselves members of those religions? Does Christianity have rights in addition to or different than the rights afforded to Christians?)

Think about what Pastor Johnson is really saying here. In his myopic worldview, Christian religious liberty cannot live in harmony with equal rights for gays. Either the Christian view of the world “wins” and gays remain an unprotected minority class or equality expands but at the expense of “those who profess faith in Christ and faithfulness to the Scriptures”. There is, apparently, no middle ground, no possibility for compromise. Either Christianity wins or the LGBT lobby wins; a zero sum game with no possibility of cooperation or compromise.

And I know that I’m beating the proverbial dead horse, but why is it that Pastor Johnson’s understanding of Scripture is correct while others are, by definition, wrong? Why does Pastor Johnson get to choose which passages from Scripture must be followed and which can be ignored? I haven’t seen Pastor Johnson or his flock protesting Colts games (pigskin), Red Lobster, cheeseburgers, or cotton-polyester blends. I haven’t seen him advocating that gays to be stoned (hey, if he’s going to follow Scripture that says homosexuality is bad, then shouldn’t he follow the whole pronouncement and also call for gay men to be put to death?). And I’d be curious to know if his children have ever talked back to him and, if they have, whether he stoned them. You know, like the Bible commands.

I also find it interesting to note that Pastor Johnson points to the leadership of the LGBT community who claim that they will seek to make sexual orientation and gender identity protected classes. First, so? Is that bad? (I think that part of the problem here is the oft-repeated notion that protected classes are granted more rights; that isn’t the case at all. Instead, a protected class is simply a status that cannot be used for the basis of discrimination. And protected class covers the spectrum; thus, the protected class of race protects blacks and whites; the protected class of religion protects Jews, Muslims, and Christians, and the protected class of sexual orientation would protect homosexuals and heterosexuals.) More importantly, I find it interesting that we are supposed to take seriously what the LGBT community says it wants to do, but we were supposed to ignore the claims of RFRA supporters that the bill would indeed allow for discrimination.

As Christians, we have no problem demonstrating tolerance for others. Tolerance exists and is valued because of our Christian values, not in spite of them. But the LGBT community is anything but tolerant. They are not content to practice tolerance, demanding instead that people of faith celebrate a lifestyle which is expressly forbidden by God in the Scriptures. When Christian business owners refuse to participate in homosexual weddings, something most Christians consider to be a mockery of the sacred institution of marriage, they are not extended tolerance. To the contrary, they are vilified, threatened, attacked, and fined into submission by a sympathetic state that has foolishly exchanged our God-given, First Amendment rights for sexual license.

Read that first statement again: “As Christians, we have no problem demonstrating tolerance for others.” Ok. Done laughing yet? Look, I don’t mean to suggest that all Christians are intolerant; far from it. But the whole point of Pastor Johnson’s diatribe is that he and those like him demand that they be protected when they choose to be intolerant. He points to his Christian values but he doesn’t quite seem to connect the dots and show how he has been tolerant at all. Sorry, but saying, “Gee, I’ll let you live, but I need the right to discriminate against you, to retain the ability to fire you or refuse to give you housing, and to prohibit you from marrying the one you love, and you better not even think of asking to be treated fairly” doesn’t really sound very tolerant or Christian.

Then Pastor Johnson goes on, trying to justify his intolerance and bigotry. When has the LGBT community “demanded” that “people of faith celebrate a lifestyle … expressly forbidden by God”? First, I’ll note that the Biblical commandments say nothing about female homosexual relationships, just male. So I supposed that Pastor Johnson draws a line between homosexual male weddings and lesbian weddings? Moreover, as I’ve just mentioned, there are all sorts of Biblical commandments and prohibitions (nice haircut, Pastor Johnson!) that we don’t enshrine into law. Take for example that whole “no other gods” prohibition. That doesn’t seem to square very well with the First Amendment, yet we certainly “celebrate” the religious freedoms offered by the First Amendment, don’t we. Does Pastor Johnson believe that Christian businesses should also be able to refuse to provide flowers, photographs, or cake for a Jewish wedding or for the wedding of someone who was previously divorced or who has a child out of wedlock? Does Pastor Johnson believe that Christian businesses should also be able to refuse to provide flowers, photographs, or cake for an interracial wedding? Let’s not forget that religion and “Biblical” teaching was one of the reasons that interracial weddings were prohibited in many states:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Judge Leon Bazile in Caroline County Court, 1958. Does Pastor Johnson believe that Christian businesses should have the right to refuse to participate only in same-sex marriages or does that right to refuse extend to any marriage or other activity with which the Christian business disagrees? If the former, why? Why does Pastor Johnson draw his line at same-sex marriages while “permitting” participation in other, probably more egregious “anti-Biblical” behavior? If the latter, does he understand what this would mean for our society? In Pastor Johnson’s world, we’d likely have a society segregated on religious belief; businesses for Christians and businesses for Muslims; businesses for straight people and businesses for gays; businesses for religious believers and businesses for atheists. Does that sound like what America is supposed to be like?

Furthermore, there is a huge difference between “celebrating” or “participating” in something and “entering into a business transaction” related to that something. When someone participates, you don’t pay them. The exchange of money distinguishes participation from a business transaction. A celebration is a happy event that someone chooses to be a part of. A business arrangement is not a celebration for the person paid to provide a service. But follow Pastor Johnson’s line of argument to its logical conclusion: Wouldn’t baking a cake for the birthday party of a three year old born out of wedlock be participating in a celebration of single parenthood and promiscuity? Wouldn’t attending the wedding of a previously divorced person be a celebration of the right to divorce? Wouldn’t paying a salary to someone who uses that salary to pay for an abortion be tantamount to participating in that abortion?

Next, Pastor Johnson offers one of the most Orwellian talking points to come from the anti-LGBT community: Christians who exercise their religious beliefs are “vilified, threatened, attacked, and fined into submission” by those who have “foolishly” allowed “sexual license”. Pastor Johnson wants us to feel bad for the poor, mistreated Christian business that is just trying to operate according to religious doctrine and who suffers at the hands of the militant State that has given … gasp … First Amendment rights to those who believe differently. But here’s the thing. That Christian business isn’t just keeping to itself; nope. It is open for business to everyone except those that it disfavors. More importantly, in exercising those religious beliefs it is both demonizing and harming others.

Pastor Johnson bemoans those businesses that have suffered because of their refusal to participate in same-sex marriages. But he omits one important little detail: In the cases in which a business has been fined for refusing to participate in a same-sex marriage, the fine comes as a result of the violation of a law or ordinance that treats sexual orientation or gender identity in the same way that race, national origin, gender, disability, and religion are treated for purposes of non-discrimination. Does Pastor Johnson believe that a Christian business should be free to discriminate on the basis of race, national origin, disability, gender, or religion? Does he believe that a Christian business should be able to refuse to provide services for a Muslim, Jew, Catholic, or Christian who belongs to a non-evangelical church?

Or, let’s frame it as it really is: Pastor Johnson is angry that tolerance is not shown to those who expressly choose to be intolerant. Resorting to the rule of law to punish illegal conduct is intolerant when the illegal conduct is a form of intolerance. Or am I missing something?

Pastor Johnson also tells us that “most Christians consider” same-sex marriage “to be a mockery of the sacred institution of marriage”. Really? I note that Pastor Johnson provides no evidence for this claim. Perhaps Pastor Johnson should have reviewed Changing Attitudes on Gay Marriage published by Pew Research Center in September 2014:

Note that according to that poll, both White mainline Protestants and Catholics favor same-sex marriage. Black Protestants don’t support, but the margin is relatively close. Only White evangelical Protestants, you know, like Pastor Johnson, are overwhelmingly opposed to same-sex marriage. Thus, I’d have to call “bullshit!” on his claim that “most Christians consider” same-sex marriage “to be a mockery of the sacred institution of marriage”.

Oh, and just what exactly is this so-called “sacred institution of marriage” of which Pastor Johnson speaks? Was Britney Spears’ 55-hour marriage part of that sacred institution? Does that make a mockery of the institution? If not, why not? If so, why isn’t Pastor Johnson seeking to be sure that Indiana doesn’t recognize that sort of marriage performed in another state? Why is it only same-sex marriages that make a mockery of the institution? And I know that I’ve shared this video explanation of “traditional marriage” before, but it’s still relevant (and hysterical):

A quick query for Pastor Johnson and his flock: Can you point me to the provision in either the Bible or the Constitution where G-d gave us First Amendment rights? I don’t seem to recall that in the Bible (lots of smiting of those who worshipped other gods and lots of stoning for those who spoke unflatteringly of G-d, but free speech, freedom of religion, freedom from state-sponsored religion, freedom of the press, and freedom to assemble seem to be prominent themes in the Bible). And last time I read the Constitution, neither the words “God” nor “Jesus” were mentioned. Maybe Pastor Johnson is reading a different Constitution and a different First Amendment because the Constitution that I’m familiar with takes a neutral stand toward any particular religion and protects minorities from the so-called tyranny of the majority.

As to the whole complaint about sexual license, perhaps Pastor Johnson should familiarize himself with parts of the Bible that don’t necessarily support his view. Maybe he should read, with a slightly more open mind, the Song of Solomon, part of which seems to specifically permit or even encourage both oral and anal sex.

He shall lie all night between my breasts… His left hand under my head, and his right doth embrace me… Thy young breasts are like two young roes that are twins, which feed among the lilies… Come, blow upon my garden, that the spices thereof may flow out… My beloved put his hand by the hole of the door, and my bowels were moved for him. Thy stature is like a palm tree, and thy breasts are clusters of grapes. I will go up the palm tree, and grasp the boughs. I am a wall, and my breasts are as towers.

And if you really want to talk about sexual license, we should look at Genesis 19:30-36 in which Lot’s daughters get him drunk, have sex with him (several times), and get pregnant, all without penalty or criticism. But gay sex? Gasp! Sexual license!

OK. OK. Moving on…

We need to be abundantly clear. The coming together of religious liberty and sexual license is not a peaceful coexistence, but a violent collision. For the Christian, God is the ultimate authority. This is why our forefathers acknowledged that the consciences of men were outside of the authority of human governments. God’s Word is very clear about the proper expression of human sexuality, and homosexuality is one of a variety of sexual behaviors God expressly condemns. For Christians, therefore, sexual sins can never be treated as civil rights. God’s view on marriage is equally clear. These beliefs are non-negotiable for Christians. So how can those with diametrically opposed worldviews live in the political utopia you have foolishly portrayed?

Wait, what? religious liberty and sexual license (whatever that means) can’t share peaceful coexistence and must, instead, face a “violent collision”? Think about that statement for a moment. To Pastor Johnson, what you do in your bedroom, if it’s anything other than plain vanilla sex with your (opposite sex) spouse for the purpose of procreation, cannot exist peacefully with the notion of religious liberty. The fact that you and your partner (whoever he or she may be) might be unmarried, might have sex for pleasure rather than procreation, or might enjoy a little kink or two apparently threatens the religious liberty of Pastor Johnson and his flock. Um, how? You see, here we really get back to what is at the core of so much of this: The notion that sex is bad, evil, of the devil, and so forth, unless the purpose is to make a baby (a good Christian baby, no doubt…). But you know what, Pastor Johnson? Not all of us agree. Suggesting that “sexual license” must be in violent collision with religious liberty is a bit like saying that your religious liberty is threatened because I don’t believe in the divinity of Jesus or that my religious liberty is threatened because you had a ham & cheese sandwich last night (double blasphemy!).

I understand Pastor Johnson’s assertion that to Christians, “God is the ultimate authority.” That’s fine. I presume that he will agree that to Muslims, “Allah is the ultimate authority” and that to Jews, “G-d is the ultimate authority”. But would he also agree that the prohibitions and obligations expressed by that “ultimate authority” differ depending on which version of “ultimate authority” you subscribe to? I wonder why Pastor Johnson is so cavalier in violating those dictates handed down by prophets of all those gods that he chooses not to follow and why he thinks it’s his role — his right — to demand that those who follow a different “ultimate authority” accept and respect his views?

Does God expressly condemn homosexuality? Yep. Male homosexuality. Lesbians get off easy (no pun intended; well, maybe just a little…). But so what? God expressly condemns lots of things and we don’t hear Pastor Johnson complaining about those things do we? And God expressly demands certain things, too. But I don’t see Pastor Johnson expressing a lot of anger at the fact that we are a State that tolerates a population in poverty without sufficient food or shelter. You tell me: Which did Jesus care more about? It’s also interesting to note that while Pastor Johnson wants to follow God’s dictates that homosexuality is condemned, he doesn’t seem to also feel obligated to enforce the penalty that God specifically sets forth for (male) homosexual sex: Death. Wait a minute. I thought God was the ultimate authority. If God decrees death for gay sex, then why isn’t Pastor Johnson demanding the death penalty for those caught engaging in gay sex? Who is he to not follow God’s demands?!

On the basis of all of this, Pastor Johnson then argues that “sexual sins can never be treated as civil rights”. Ok. Two questions: First, perhaps I’m wrong, but I don’t see a whole lot of civil rights in the Bible (Old Testament or New). There are kings. There is slavery. There is smiting. But I’m not sure that the Bible talks much about the rights that people have. So why does Pastor Johnson limit his claim to “sexual sins”? Why do I have the right to worship any god I want (or not to worship any god at all) when G-d told me not to? It would seem to me that Pastor Johnson should be much more upset at the prospect of some people having the civil right to reject his form of religious belief or to worship Odin or Satan (or not to believe in the existence of any deity). Or maybe he doesn’t really care about God’s prohibitions at all; maybe he just finds gay sex to be icky.

As to the claim that “God’s view on marriage is equally clear” I’d first suggest watching the video I posted above (click the link if the video isn’t embedding properly). Then I’d query whether God’s view on marriage as expressed either to Mormons or to Muslims is somehow less clear (you know, the view that permits polygamy…)? I presume that Pastor Johnson will be on the front lines demanding that the Indiana General Assembly permit polygamy if a person’s religious belief permits or demands? Right?

I understand the concept that beliefs are non-negotiable. Fine. Pastor Johnson can continue to believe that people don’t have a right to worship other gods (and that doing so should be punishable by death), that women must be subservient to their husbands, that the Iraqis and Afghans that we defeated in battle should now be our slaves, that the Sun orbits around the Earth, that the Earth is 6,000 years old and evolution is a lie. Fine. But it seems odd, doesn’t it, that these non-negotiable beliefs aren’t universally followed or acted upon by every Christian and that even a good Christian like Pastor Johnson doesn’t follow every single commandment set forth by God (nice haircut!). In other words, God’s commandments are non-negotiable except when inconvenient. I mean, I understand why Christians eat bacon; it is delicious, even if G-d says it’s a no no.

Pastor Johnson rhetorically asks “how can those with diametrically opposed worldviews live in the political utopia you have foolishly portrayed?” Yeah, how can Jews and Christians live together? How can Atheists and Christians live together? How can the rich and poor, Republicans and Democrats, Yankee fans and Red Sox fans live together? Dammit, it’s time to start stoning those with worldviews diametrically opposed to our own. Um, what? Let’s remember the point of the American experiment and American democracy: To provide a haven for those with different worldviews and religious and political philosophies where ideas could be freely expressed and minority beliefs would be respected. Maybe somebody needs to send a memo to Pastor Johnson because he seems to be under the misapprehension that only one worldview (surprise: his!) can be protected or respected in these here Theocratic States of ’Merica!

But it is nice to know that evangelical pastors like Pastor Johnson believe that their worldview is diametrically opposed to a worldview that favors equality.

You speak of a state where discrimination of any kind will not be tolerated, yet you and the other legislators invest your lives in passing laws. Each law makes a discrimination. Laws tell us the right or legal way to behave and what is the wrong way to proceed. Every law is a reflection of someone’s morality. So it’s clear we all make discriminations. Concerning sexual behavior, most Hoosiers would agree that it is wrong to allow a sexual offender to run a daycare facility. We all draw moral lines of distinction somewhere. So living in a state that “does not tolerate discrimination of any kind” is yet another false, misleading narrative. We’d have to shut down our statehouse and our courts if we really believed that.

Let me see if I get this right. Pastor Johnson argues that because we have laws, the claim that Indiana does not tolerate discrimination is, by definition, “yet another false, misleading narrative”. Perhaps, in some sort of formal linguistics, hyper-technical understanding of those words, he just might be right. But really? Is that what he thinks we mean? Is that what he thinks anyone means? In reality, Pastor Johnson’s motivations and concerns are revealed by the example that he chooses. Do you think it’s mere coincidence that he uses the example of a sexual offender and children? Of course not. Because in the narrow worldview shared by Pastor Johnson and his flock, all gays are pedophiles who seek nothing more than to indoctrinate children into the homosexual lifestyle.

What Pastor Johnson seems not to understand (or wants to ignore) is that most (though not all) of the laws that he rails against as being discriminatory are designed to protect people who would be harmed by conduct. We prohibit the sexual offender from working in the daycare facility in order to protect the children. We prohibit certain people from driving cars, flying airplanes, or owning guns, in order to protect the public. We prohibit certain pesticides, drugs, and food ingredients in order to protect people from their effects. <Sarcasm> Perhaps we should limit who can be a pastor in order to protect people from the views that Pastor Johnson is keen to express? </sarcasm> Similarly, we have laws prohibiting discrimination to protect those who would be discriminated against.

And yes, laws are a reflection of morality, but not just “someone’s morality” and certainly not the morality of just a particular religious viewpoint, let alone a narrow view of a subset of that religion. Laws are enacted by popularly elected legislators and signed into law by popularly elected executives. Thus, I’d suggest that those laws reflect society’s morality, which is subject to change over time unlike many religious moralities which remain fixed in ancient texts. (And query whether we should really feel compelled to follow morality set forth in an age when the world was a far more different, far more brutal place in which the lessons of science had not yet taken hold.) Moreover, society’s morality is still subject to limitation on the basis of the constitutional protections afforded to minorities and minority views.

Your press conference to “fix” a piece of legislation which required no fix made it abundantly clear that you have sold out the religious liberties of Christians to momentarily quell the cries of special interest groups and alleviate the financial fears of big business. Conspicuously absent from the discussion were spiritual leaders from the Christian community. We will no longer sit passively and allow cowardly political leadership to remove religious liberties from the marketplace. If we do, it’s only a matter of time before these same liberties are removed from the Church. We are here to remind our leaders that our liberties come from God, not the state. When you fail to honor God, when you attempt to turn moral wrongs into civil rights, you forfeit your God-delegated privilege to rule and must be stridently resisted.

Boy, there’s a lot to unpack in that first sentence (before moving on to the threats and batshit crazy claims that follow). OK. So, no “fix” was necessary. Well, I think that we’ve established that Pastor Johnson indeed wanted businesses owned by his flock to be able to discriminate against gays (and others, perhaps?). But apparently signing legislation to prohibit discrimination on the basis of sexual orientation or gender identity is … um, wait. The RFRA “fix” doesn’t actually prohibit discrimination at all. Nope. All it does is say that RFRA can’t be used as the basis for discrimination. But in the large swaths of Indiana where there are no protections afforded on the basis of sexual orientation or gender identity, Pastor Johnson’s flock are free to discriminate against the LGBT community to their bigoted hearts’ content. Furthermore, the only “religious liberty” implicated by the “fix” is the right to discriminate on the basis of religion. That’s it. So now we see, quite clearly, that the religious liberty that Pastor Johnson truly seeks is the liberty to be intolerant and to turn away those he views with disfavor. That’s it. How Christian of him.

Pastor Johnson also complains of alleviating the “financial fears of big business”. First, I’d suggest that the opposition to RFRA was from businesses both large and small. But, as in politics in general, the opinions of those with the loudest voices (and, in the case of businesses, “loud” usually means willing to spend money) are heard most. But it was the small business who were putting up stickers saying “we don’t discriminate”. It was convention organizers saying “we won’t come to Indiana”. It was the current Republican Mayor of Indianapolis, together with the previous Democratic Mayor of Indianapolis and the three Republican Mayors of Indianapolis who preceded them, who were saying “no”. Similarly, mayors elsewhere across the State, both Republican and Democrat, spoke out against RFRA. And though I’m sure Pastor Johnson is loathe to admit it, there were other church groups who were speaking out against RFRA (such as the Disciples of Christ who canceled their convention in Indianapolis because of RFRA). But I guess those groups probably don’t count in Pastor Johnson’s worldview.

Pastor Johnson also rails against the “conspicuous absence” of Christian leaders from the discussion regarding the so-called “fix”. Hmm. It seems to me that all sorts of religious leaders were involved in that discussion, whether directly or indirectly. If nothing else, the airwaves and newspapers were full of people, including religious leaders, expressing their thoughts. And I’m sure that religious leaders made ample use of the telephone and email to contact their legislators. I think that Pastor Johnson has confused the meaning of “conspicuously absent” with “didn’t prevail”. Of course it’s also worth remembering that religious voices opposed to RFRA weren’t listened to prior to its passage; Pastor Johnson was included in the group of religious leaders who were invited to attend the Gov. Pence’s private signing ceremony for RFRA. Conspicuously absent from that event were the myriad religious leaders who opposed RFRA.

Does Pastor Johnson really then claim that he and his flock have been “sit[ting] passively”? Really? It seems to me that the evangelical Christian voice has been quite loud and quite involved in politics and the electoral system in recent years. After all, who was it that was pushing RFRA in the first place? Who was it that wanted a constitutional amendment to prohibit same-sex marriage? Who was it that didn’t want “childcare ministries” to have to meet certain health standards? I could go on and on. No, I’d say that the evangelical community has been dominating our politics for a while and they are having a temper tantrum as they watch their influence begin to be challenged and perhaps, even, begin to wane.

Then, once again, just in case he hasn’t been clear so far, Pastor Johnson again makes it clear that his intent for RFRA was for Christian businesses to be allowed to discriminate against those who might be disfavored (the LGBT community, in particular) when he talks about removing religious liberties from the marketplace. What religious liberties have been removed from the marketplace (or are even being contemplated being removed from the marketplace)? Are businesses now prohibited by law from putting a cross on their window or wall? Are businesses prohibited by law from saying “have a blessed day” or “Merry Christmas”? Are businesses prohibited by law from closing for religious holidays or Sunday? Are businesses prohibited by law from selling the New Testament or the Left Behind series? Are businesses prohibited by law from selling books saying that Christianity is right and that other religions are frauds or a form of blasphemy? Obviously not. No, the only thing that is being contemplated is telling all businesses that are open to the public that they have to serve everyone and cannot discriminate on the basis of their religious beliefs. Or, said differently, that all businesses that are open to the public must follow generally applicable laws. Exceptions for individuals to exercise their own religious practices are one thing; exceptions to allow a business to exclude people because their religious dictates followed by the owners of the business is something else entirely.

Don’t forget that G-d didn’t create corporations; the legislature did. And don’t forget that there is a benefit in forming a corporation and operating a business through the corporation, namely the protection of the individual owners of that corporation from liability (the so-called “corporate shield” or “corporate veil”). Yet now individual business owners, who have chosen to utilize the benefits and protections afforded by forming a corporation, seek to ignore that corporate form in order use their own religious beliefs as a sword. If liability can’t flow through a corporation to its owners, why can the owners’ religious beliefs flow through the corporation to its customers or employees?

Next, Pastor Johnson launches into one of those slippery slope forms of fear-mongering that seem to play well with those who don’t take the 17 seconds necessary to think about the claim and recognize it for the absolute bullshit that it is: “[I]t’s only a matter of time before these same liberties are removed from the Church”. No, Pastor Johnson, it isn’t “only a matter of time” unless by “a matter of time” you mean never. The First Amendment absolutely protects churches from having their religious liberties removed. Note that Pastor Johnson doesn’t offer any examples of just how this might happen. No church will be forced to either perform or recognize same-sex marriages just as no church (or synagogue or mosque) has ever been forced to perform or recognize any marriage that it chooses not to. No pastor will be jailed for preaching that homosexuality is a sin just as no pastors have been jailed for preaching that interracial or interreligious marriages are a sin, preaching that Jews are Christ-killers, or railing against any of the innumerable perceived sins and transgressions that rain down from pulpits across this country. The pastor in Arizona who prayed for President Obama’s death is still preaching his spectacular form of hate. People, pastors, and churches remain free to believe and say what they want. That is what we mean by the free exercise of religion. But people who only listen to one side of these debates and who don’t really spend much time thinking about constitutional jurisprudence or the true meaning of the First Amendment are easily swayed by false claims that pastors will be jailed for preaching against homosexuality or that churches will be fined if they don’t perform same-sex marriages. The question I ask is whether Pastor Johnson really knows this but makes the claim to scare those who listen to him or if he really is so ignorant that he thinks that there is truth behind his fear.

Pastor Johnson then “reminds” the Governor and General Assembly that “our liberties come from God, not the state”. Um, wrong again, Pastor. You may believe your liberties come from God; that’s your right, protected by the First Amendment. But guess what? Others believe that their liberties come from different places, whether it be other gods or from nature itself (remember that the Declaration of Independence talks about the Creator and Nature’s God, not about G-d); and it’s worth noting that the Declaration of Independence is not the law.

It seems to me that Pastor Johnson’s claim that liberties come from God creates several paradoxes. First, if those liberties do, indeed, come from God, then shouldn’t everyone share them? But there are people all across the globe who don’t have the right to worship as they want, to speak freely, or to exercise any of the host of liberties we take for granted. So if those liberties are really God-given than God must just be doing a really shitty job of, you know, actually giving those liberties to everyone.

Or what about “God-given” liberties that seem to conflict among religious viewpoints? For example, most Jews believe that women have the liberty to have an abortion, a liberty derived from a religious understanding of the relationship between a fetus and a woman and of the moment that a fetus is imbued with a soul. Yet many Christians will argue against abortion rights on the basis of their own religious beliefs. Perhaps we need, oh, I don’t know, a few millennia of religious-based strife so that those with different beliefs can try to subdue those who hold the “wrong” belief into submission and into giving up on the particular religious liberty in which they believe.

I’d also be curious to know how Pastor Johnson explains my religious liberty not to believe in Jesus as the messiah and yet also believe that if I don’t come to his religious viewpoint, I’m going to Hell. If we try to piece Pastor Johnson’s worldview together, apparently G-d gave me the religious liberty to not believe but will then punish me for exercising that G-d-given liberty? Huh?

I wonder if someone can point me to the Biblical passages that expressly grant the liberties of which we are so proud and celebrate (or for which we continue to struggle) here in America. Which Biblical passage expressly talks about equality for women, either in the workplace or in the home (well, I guess we have a lot of work still to do on that one)? Which Biblical passage gives people the freedom to eat whatever food they want, to wear whatever fabric they want, or to wear their hair the way they want? Which Biblical passage tells people that they have a right to keep and bear AK-47 assault rifles? More importantly, Which Biblical passage recognizes the fundamental liberty to believe in a different god (or gods) or in no deity at all? Which Biblical passage expressly says that people shouldn’t be discriminated against on the basis of their skin color? Which Biblical passage gives people the fundamental liberty to choose their own government at the ballot box or to speak freely about their religious or political thoughts? Which Biblical passage says that people have a fundamental liberty not to be slaves?

Hmm. Perhaps the liberties that we take for granted aren’t really Biblically ordained.

Our liberties come from our existence as humans and the shared human experience and understanding of right and wrong.

Pastor Johnson is right that our liberties don’t come from the State; rather, it is the job of the State to protect those liberties that we, as a society and nation, have agreed deserve to be protected both from the State itself and from the rest of society.

Pastor Johnson concludes this paragraph with one of the most asinine statements I’ve seen in a long time: “When you fail to honor God, when you attempt to turn moral wrongs into civil rights, you forfeit your God-delegated privilege to rule”. Whoa. “God-delegated privilege to rule”? Um, what the fuck? I thought Divine Right was eliminated when we declared independence from Britain. Oh, and what about that whole “no religious test” provision in the Constitution? I think that Pastor Johnson, with this statement, demonstrates his fundamental disdain both for democracy in general and for a system that protects the rights (and liberty!) of minorities and those who hold minority views.

Think of it this way: Pastor Johnson is saying that if you don’t honor God and protect conduct that he views as immoral, then you are ineligible to be a democratically elected leader. Maybe I’m missing something, but isn’t that essentially the position of the Taliban and the Ayatollahs in Iran?

Moreover, by extension, isn’t Pastor Johnson really saying that only Christians (and Christians who share his narrow interpretation of what his particular version of Scripture demands or prohibits) are eligible to represent us in government? Oh, I suppose that he might think that a Jew or Catholic or Mormon would “honor God” but what about a Muslim (yes, I know that Muslims worship the same God as Jews and Christians, but I’m not so sure that everyone is willing to accept and recognize that fact…), Buddhist, Hindu, Native American, Pastafarian (look it up), or atheist? Do their core beliefs and worldviews, including somewhat (or vastly) different teachings on certain broad moral standards, expressly disqualify them from being elected to American legislative or executive office? Maybe I’m wrong, but it sure seems as if that is what Pastor Johnson is arguing.

I don’t know about you, but I’m actually frightened of what our democracy (former democracy?) might look like if Pastor Johnson and those with similar religious views were to gain more power in Indiana or America.

And then Pastor Johnson comes to his call to arms.

You’ll recall the mission statement of the Indiana Pastors Alliance and its militant language linking worship and war. And you’ll recall Pastor Johnson’s claim that religious liberty and sexual license must meet in a violent collision. Now look at this final words in this paragraph, his expression of what must be done when our elected officials have forfeited their “God-delegated privilege to rule”: They must be “stridently resisted”. Combine that with some of the previous statements and one could, I think, make the plausible statement that Pastor Johnson is calling for a violent resistance to the authority of the government and to the laws that the democratically elected legislature and executive have enacted.

Yeah, I am getting a little bit scared of Pastor Johnson. I mean, we’ve already seen people with views similar to Pastor Johnson’s blowing up abortion clinics and murdering doctors. We’ve seen them walking into Sikh temples and killing innocents. We’ve seen them blow up a federal building in Oklahoma City. And we’ve seen them attack gays and lesbians. What sort of “strident resistance” does Pastor Johnson seek? Remember, his words talked about a “violent collision” and the non-negotiability of his principles. When we combine “violent collisions” and “strident resistance” and mix in a little theocracy (“God-delegated privilege to rule”) then the peaceful America with its core of democratic governance via the marketplace of ideals begins to look like it could be in jeopardy.

American pastors have historically served as the moral and cultural conscience of the nation. When government forgets God and promotes policies in direct opposition to God’s Word, the Church has a God-given mandate to speak up. It is with this in mind that the Indiana Pastors’ Alliance feels compelled to bring to the Indiana Legislature an open, public rebuke. Psalm 105:14 reminds us that when God’s people are put in an oppressive place by civil authority, that authority is to be rebuked. Scripture goes on to say, “Open rebuke is better than love carefully concealed. Faithful are the wounds of a friend, But the kisses of an enemy are deceitful.” (Proverbs 27:5-6)

Pastor Johnson uses the definite article “the” in the first sentence of this paragraph and, frankly, that ticks me off a bit. Yes, pastors have served as a moral conscience. Sometimes. But pastors have not been the only people to serve in that role. Moreover, while many, if not most, pastors have played a positive role, there are still many who have played a negative role and worked to further a very, very narrow and limited moral and cultural understanding. A pastor who advocates for racial segregation, who preaches supersessionism (replacement theology), or who shares a worldview that demeans or belittles those who have different theological (or atheological) views, isn’t acting as the moral or cultural conscience of the nation. And that is a major part of Pastor Johnson’s misunderstanding of his importance; he doesn’t seem to understand one very simple truth: Not everyone agrees with him and disagreement with him and his views is not, by definition, immoral.

“When government forgets God…” Um, isn’t Government really supposed to forget God? Isn’t that what the Establishment Clause of the First Amendment is really all about? And as to the promotion of policies “in direct opposition to God’s Word”, I’d again point the the cherished right to worship freely (um, “religious freedom, anyone”?) found in the First Amendment. Our government certainly (and rightly) promotes and celebrates the right of all Americans to believe and worship as they choose, but doesn’t that directly contradict “God’s Word” (you, know, that whole “no other gods before me” thing…)? So is Pastor Johnson really claiming that our cherished Constitutional protection of the free exercise of religion is either wrong (because it contradicts “God’s Word”) or that it only applies to Christians?

You know what, though? This may surprise you (though it shouldn’t). I have absolutely no problem whatsoever with Pastor Johnson and the Indiana Pastors Alliance “rebuking” the General Assembly. That is their right as Hoosiers and it’s a right that I’ll fight to defend. I don’t have to agree with their message or the substance of their rebuke to defend their right to do so. I just wish that I knew that the Indiana Pastors Alliance shared that sort of view regarding the rights of others who may share different views of important life and cultural issues. If Indiana tried to force Pastor Johnson to perform a same-sex marriage or prevented him from preaching from his pulpit, I’d be there to defend him; but when Indiana tells a liberal Jewish rabbi that she can’t perform a same-sex marriage, is Pastor Johnson there to defend her?

I don’t really want to get into an argument with Pastor Johnson regarding Biblical verses; I’m far from an expert. But I would suggest that the his quotation of a Psalm that talks about G-d’s “rebuke” of an absolute monarch who had enslaved an entire people (Pharaoh) is vastly different from the opprobrium due to a democratically elected legislature that can be voted out of office or which may actually be representing the will of the electorate. I don’t think that the author of Psalm 105:14 contemplated democracy (which the Greeks wouldn’t get around to inventing for a few hundred [or more] years).

Note Pastor Johnson’s use of the phrase “oppressive place”. I almost think he tried to sort of slide that phrase by. But no matter how much he may try to argue the point, telling someone that they can’t discriminate against people in the public sphere is simply not a form of oppression. A state or country that is welcoming of diversity and strives for equality for all is just not an “oppressive place”. If Pastor Johnson wants to see a truly repressive place, perhaps he should look around the world and back through history at theocratic regimes.

Read that last line from Pastor Johnson: “Faithful are the wounds of a friend, But the kisses of an enemy are deceitful”. Now remember that he is advocating in favor of a right to discriminate against people on the basis of sexual orientation or gender identity. Then look at this photo of Pastor Johnson embracing a protestor from the LGBT community during the press conference that Pastor Johnson and the Indiana Pastors Alliance held at the Statehouse on April 27, 2015:

“Faithful are the wounds of a friend, But the kisses of an enemy are deceitful.” I’m curious if those words apply to Pastor Johnson…

The state leadership of Indiana has not only been remiss in their duties, but they have opened a door of oppression upon the community of which many of them say they are a part. Our job as spiritual shepherds is to do our part in protecting the sheep from those who do such things. The Scripture plainly teaches us that we are to evaluate leaders based upon the fruit of their actions and not only the confession of their lips (Matthew 7:16-20). Politicians are not exempt. Your actions have demonstrated that when the heat is turned up, your “deeply held principles” become easily negotiable. If increased pressure changes one’s principles, then one could rightfully question the reality of those principles.

The Governor and members of the General Assembly have been “remiss in their duties”? Really? Is it their duty to codify a right to discriminate? Is it their duty to legislate solely in favor of one religious viewpoint? Is it their duty to enact legislation that makes Indiana a pariah? And if it is their duty to protect evangelical Christians from the scourge of homosexuality, then isn’t it also their duty to eliminate divorce, outlaw cheeseburgers and shrimp cocktail, reinstitute stoning of gays, and most importantly, amend our Constitution to prohibit freedom of religion for those who haven’t accepted Jesus as their savior?

But it’s Pastor’s Johnson’s next comment that … well, it almost makes me laugh when Pastor Johnson argues that the Governor and members of the General Assembly “have opened a door of oppression”. Yep. Now evangelical Christians will be denied jobs and housing, they’ll be turned away by businesses, they’ll be prevented from marrying the person they love or visiting that person in the hospital. Oh, wait. Ooops. My bad. That’s the sort of the thing the General Assembly has allowed to happen to the LGBT community, not Christians. Again, I don’t care how often Pastor Johnson repeats his mantra, telling a business that it can’t discriminate on the basis of religion, race, national origin, sexual orientation, or gender identity is not a form of oppression.

As to his whole diatribe against politicians who changed their minds, let me just suggest that there is a huge difference between holding a “deeply held” view in favor of “traditional marriage” (i.e., opposition to same-sex marriage) and the belief that it’s the job of the State of Indiana to condone and make statutory allowance for discrimination against religiously disfavored groups. But if Pastor Johnson and his flock want to question the principles of our elected officials or even challenge them at the polls, that is their right; that’s how democracy and free speech work. Of course, I’m allowed to question whether Pastor Johnson’s principles and his devotion to Biblical teaching is sincere, especially given that it appears that he is violating at least some Biblical prohibitions and commandments at the same time that he’s trying to get the government to enforce others. Perhaps an evangelical Christian pastor who spends time advocating against guys because homosexuality is a sin but who doesn’t spend time picketing his local Red Lobster, McDonald’s, barber shops, and footfall fields, isn’t really that sincere is in his own religious beliefs. I’d be curious to know if Pastor Johnson permits divorced members of his church or if he’ll officiate weddings where one spouse was previously divorced. Does he baptize children born out of wedlock and, if so, isn’t that really “celebrating” promiscuity and the single parent family. Maybe he’s only really sincere about, oh, I don’t know, maybe hating the gays?

In conclusion, we understand that in most politicians’ minds, moments like this will soon pass. The electorate, so we are told, has a short memory. No doubt that has been illustrated abundantly through the years. All we can say is that as pastors we will do our best to “mark those” who bring oppression and offense to our faith (Romans 16:17-18). It is with a profound sense of sorrow we issue this rebuke. Our hope is that those who have been entrusted with governmental authority will remember that they remain God’s ministers (Romans 13:4) and as such, will must redress this egregious attack on our God-given liberties.

So now Christians with beliefs like Pastor Johnson will be “marking” politicians with whom they disagree? First, haven’t they been doing that for years on issues like abortion and, yes, gay rights? Perhaps, though, this will give us the opportunity to put aside silly political labels like Republican or Democrat, liberal or conservative, left or right. Perhaps, instead, we can begin electing legislators based solely on their religious views and whether unelected clergy has “marked” a legislator for office or not. You know, we can have the evangelical Christian ticket of candidates, the Jewish ticket, the Muslim ticket, the Catholic ticket, the Mormon ticket, the Buddhist ticket, the Hindu ticket, the atheist ticket, and so on. Because I can’t think of anything that would be better for our democratic system than open religious strife the exercise of power by majority religions against minority or unpopular faiths. Won’t that be cool?

I hate to have to repeat myself, but Pastor Johnson’s Theocratic States of America and the State of (God’s) Indiana just don’t line up with reality. I’m sorry to have to break it to Pastor Johnson, but our elected officials are not “God’s ministers”. G-d didn’t elect them; G-d didn’t appoint them. In America, in Indiana, elected officials represent the people. Neither belief in the a god nor membership in any particular faith is required either of the people or the officials they elect. And it doesn’t really matter what somebody wrote in a letter to or about a dictatorial society 2,000 years ago.

With Great Respect for both the Office and the Officeholders,

Dr. Ron Johnson Jr.

Executive Director

Indiana Pastors Alliance

Disclaimer: The views expressed here are solely those of the Indiana Pastors Alliance and are not intended to represent the views of other organizations who have spoken out on behalf of Indiana’s Religious Freedom Restoration Act.

“With Great Respect”? Really? Oh, and if you go back and re-read the first paragraph of Pastor Johnson’s letter, you’ll note that he phrases it in terms of “we”. Yet, at the end, there is no “we” signing the letter; just Pastor Johnson.

Whew. OK. I’m done. For now. I know that was a lot to digest, but Pastor Johnson’s letter really got me angry. As it says on the header way up above, the purpose of this blog was to give me an opportunity to vent. And this exercise … well, it gave me that sort of release and allowed me to clear my head from the detailed analysis that I was working on in my forthcoming RFRA deep dive post. Anyway, as an added benefit, I think working on this particular post may have rekindled my interest in blogging. Maybe.

I hope to follow this post (in the not too distant future) with my deep dive into the actual text and meaning of RFRA. Spoiler: It really was all about the right to discriminate.