The Limits of Religious Freedom

It has happened. Certain forms of discrimination are now legal in the state of Indiana. In case you haven't been paying attention to the news for the last two weeks, Governor Mike Pence (R) of Indiana signed into law a bill that would prevent the state government from interfering with the religious practice of people.

Sounds reasonable, right? Well, there are two major problems I can see. First is that the bill defines a person as an individual, a religious organization, or a business. Businesses now have the right to free practice of religion in Indiana. The second problem is that many business owners have determined that serving certain people is a violation of their religious beliefs.

Since I normally write about autism, let me get this out of the way now. I don't believe that this law will result in autistic people being discriminated against. First, disabled people are a protected minority. Even though that often isn't very strictly enforced when it comes to autism, I don't know of anyone claiming that autism violates their religion.

As an advocate for equality, I feel I should stand up for other minorities as well. Since sexual preference and gender identity are not protected minorities under Indiana law, the people most likely to be negatively impacted by this law will be the LGBT community.

To fully understand what's going on here, let's go back to the beginning. In the 1960's and 70's, the US Supreme Court began to determine that limits can be placed on religious freedom if those limits apply to everyone, not just those practicing the religion. Most notably, Native American religious practices were attack by these rulings, famously including restrictions on the use of peyote during religious ceremonies, an action that affects no one but those who voluntarily take part in the ceremonies.

To counter these decisions, the Religious Freedom Restoration Act was passed by unanimous vote in the US House of Representatives, receiving only three votes against it in the Senate, and signed into law by President Bill Clinton in 1993. On a side note, contrary to the assertion of Gov. Pence, then not-yet-senator Barack Obama did not vote for the bill for obvious reasons. Since the passage of the RFRA, several states have passed bills affirming that it applies in their states.

So if other states have passed religious freedom laws, why is Indiana different? In part, it has to do with how the word 'person' is defined in the bill, including a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, and an unincorporated association. This, combined with certain absences from protected minorities in the state of Indiana, means that a business that asserts a religion can deny service to LGBT customers on religious grounds.

In fairness, Gov. Pence has stated that this law isn't about discrimination against gay people. He said that it simply puts a higher level of scrutiny on discrimination by government entities against religion. Let me translate that. In most states, when a person makes a discrimination complaint against a business, it's up to that person to prove the discrimination happened. Under this new law, when action is taken on a discrimination complaint by a government entity, the government entity will be required to prove that it is not infringing on the business's religious freedom.

As I understand it, a business still cannot claim religious freedom to refuse service to protected minorities. That means there is a very simple fix for this law. Simply declare sexual preference and gender identity to be protected minorities. Gov. Pence has stated that he will not seek to do this.

I've heard some people say they don't have a problem with this law because we have a right to discriminate in the United States, and why would you want to shop at a business that wants to discriminate against you anyway? At least now we'll know who they are.

I have a couple of problems with this mind set. It's arguable whether we have the right to discriminate against others. Whether we do or not, we don't have the right to run a business. Much like driving, it is a privilege granted by the government, which can be taken away if it is done in an inappropriate or dangerous manner.

We've already made the decision that businesses are not allowed to discriminate against certain minorities. In the 1960's, whites' only lunch counters were common. Even restrooms and drinking fountains were segregated. And yes, religion was sometimes used as a justification. Lyndon Johnson signed civil rights legislation into effect to counter this.

Why would we want to patronize businesses that discriminate against certain minorities? Well, we probably wouldn't, especially if they discriminate against minorities we might belong to. I'm familiar with this idea, since there are certain businesses I don't patronize to avoid any of my money being donated to Autism Speaks, an organization I have many problems with. However, I don't care that much what a business owner's opinion on minorities might be, as long as none of the businesses resources or income are used to act on it. You go into business to run a business and make money, not to exercise religion or force your values on others.

On one final note, I am absolutely in favor of religious freedom. Religion is an important thing for a lot of people. However, the line we've historically drawn is that you cannot use your religion against others. It's important to remember that in a country where everyone is free to worship as they please, or even not at all, none of us have the right to force others to believe as we do.