The Indiana Firestorm
by John Schroeder
In case you have missed it, the state of Indiana is in turmoil over the Thursday enactment of a Religious Freedom Restoration act. It has grown to the point where just two days after signing the bill, the governor is calling for legislation to clarify it. Google up “religious freedom” and you will note the amount of coverage is stunning.
Why all the hub-bub? Well according to the local Indianapolis Fox affiliate:
“We have this very particularized conflict between Christians and progressive gay rights interests,” said Indiana University constitutional law professor, John Hill.
To really understand what is at stake, you have to dig into this a bit.
Start with the law in question itself. Here is the operative section:
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) 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.
Prior to that section are the needed definitions, and subsequent to it are the sections that establish that a person so burdened can seek redress in court. It seems simple enough. The law is designed to allow private business to refuse to cater to same-sex weddings without suffering extraordinary fines or to allow churches to refuse to hire LGBT individuals. (This later example has yet to happen, but EEOC rulings make it inevitable.)
The lawyers are going to be parsing language and splitting hairs for quite a while on this one. I cannot begin to figure out where all this is going to end up legally – I just know it is going to get uglier before it gets better. What concerns me is the societal trend it represents.
The country, when the LGBT community began to clamor for it, was pretty quick to adopt civil unions to provide legal protections for persons of variant sexual practice. It seemed a reasonable accommodation. While many of us felt those practices aberrant, we did not see any reason to deny individuals so involved the same legal rights regarding their partners that were accorded the more mainstream. But that has clearly not been good enough for the LGBT community as it it has resulted in is louder, more shrill, and in some cases more violent, calls for “marriage.”
The religious community, of course is the last institution standing against what the LGBT community wants. The church as been specifically targeted. Rather than live with accommodation, the LGBT community now seeks to use the force of government to control religious opposition to their desires. This shows two trends:
- It represents the use of government force to try to shape public opinion
- It potentially unbalances the careful balance of societal influence between church and state that has made this nation great.
The first trend is pretty simple. Given how this moved on past civil unions, it is very clear that the LGBT community wanted more than to simply obtain legal status. They wish to be viewed as no different than anyone else. This is a normal human desire. It is; however, extraordinarily sad that they think the force of government can accomplish that. People usually resent what they areforced to think. Winsome persuasion is a far more effective tool than government force. Fifty years after the passage of the civil rights act, racism, though not nearly as prevalent or powerful as some would have us think, still exists. And if you have ever had the “privilege” of meeting a real racist (not the trumped up racists of most media stories) you would know that their contempt for the legalities of race has only hardened their racism.
I visited the Soviet Union in its dying days in 1991. I also visited the People’s Republic of China in 1989. Both were places where religion was strictly and legally forbidden. And yet religion thrived in both places. It was technically and officially underground, but it was most apparent and accessible to anyone looking for it. The communists of those countries could not eliminate religion, despite their best efforts. I honestly do not understand how the LGBT community thinks they are going to achieve their desires with this tactic. The church will go underground if they push hard enough, but it will never go away. And the funny thing is the church underground usually ends up growing stronger and more effective. From Rome to the Soviet Union, the church has ended up winning.
The mainline Protestant denominations are dropping like flies on this issue. Changing churches from the inside seems a much better strategy than this sort of governmental coercion.
Which brings me to the second trend. The Founders realized exactly the point I made in the prior discussion. They had learned through the history of Europe and the Reformation that the governmental establishment of a religion was a loser. That the best way to influence the moral and cultural thinking of a society was through winsome persuasion, not government force. In other words, in European nations with government established churches, other churches still took root and grew. Often leading to conflict. The governmental establishment of religion in Europe certainly lead to many of the colonies that founded the United States. Being capitalists, they figured the best way out of that sort of mess was to let the free market decide which religion should predominate in the new nation.
That has served us well for some centuries now. The constitution balances more than the branches of government. The Bill of Rights, with its protections of speech and religious expression seeks to balance government with the other forces that shape a society. The LGBT community, in trying to use the force of law to override religious conviction seeks to undo that carefully constructed balance.
As such, it reveals an essential lack of confidence in the rightness of their cause. If they truly believe their own rhetoric, could they not have confidence that they would eventually win in the free market of ideas?
There is a lot more at stake here than simply a law in Indiana. The fundamental shape of our nation stands on trial. I have confidence that ultimately religion will triumph. That does not mean that the LGBT community will be squelched, quashed, or otherwise put upon. It means simply that religion will retain its place in our society. It has prevailed throughout history in the free market of ideas and it will do so now.
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