Some Further Thoughts on My RFRA Post

April 27, 2015

church street and state streetLast week the AFSC Acting in Faith blog posted something I wrote about Indiana’s Religious Freedom Restoration Act (RFRA) and the controversy it stirred up. A friend wrote me about what I said there.  “Knowing that you actually have a strong opinion, I’m surprised at the quiet tone in this,” she wrote.  “I wanted it to feel more like the statement of a dedicated ally, because I believe that’s what you are.”

I’m sure everything I write can be improved, made both clearer and stronger. I want to add some further thoughts not in justification of that post, but rather to try to add clarity. Yes, I want to be an ally, but what does that ask of me?

I’ve written (and acted) strongly on behalf of equality for LGBTQ folks. Back in 2011-12, for example, I wrote 41 blog posts about this issue for Indiana Yearly Meeting. Most of those spoke to why we shouldn’t see the Bible as speaking against same-sex relations.

I believe the RFRA issue has some complexity to it that many who are denouncing the Indiana law may be missing. Yes, it’s a bad law, even in its revised form. Likely, the motives of those who put it forward are cynical. Nevertheless, religious freedom is a valid concern, and some balancing is required between religious liberty and other rights. In centuries past, Quakers were denied religious liberty. Today in the United States, Muslims are often denied religious liberty, and sometimes evangelical Christians are, too. That evangelical leaders cry wolf far too often doesn’t mean that there is no basis for worries about religious liberty.

My central concern about the current controversy is that we keep separate two different arenas in which the issues in play are being contested. One is a civil arena, and one is religious. There’s work to be done in each, but it is different work and, I believe, that work needs to be carried through in different ways.

In the religious arena, we want to allow people to have whatever religious beliefs they want, and we want to allow them to gather together in worship and belief according to their own lights. When people step out in public and engage with others who may well have different religious beliefs, that is when we enter the civil arena. Conflicts can arise in either arena, but we try to deal with them in different ways. In the religious arena, persuasion is what we want: you try to persuade me; I try to persuade you. In the civil arena, we insist on non-coercion and treatment as equals. In the first, we pay attention to sacred sources. In the second we pay attention to the law. These two arenas don’t stay neatly separated, however, and that’s why this ground is complicated. The civil arena is the one that is currently getting all the attention, but it shouldn’t.

A brief reminder about the rise of religious liberty (or tolerance) in the western world may be helpful here. Before the 17th century, no one much made claims for religious liberty. There were right ways of believing, those who believed different things were heretics, and governments punished heretics, often with death. Schismatic groups (Lollards, Cathars, etc.) were persecuted and destroyed. Non-Christians (Jews, Muslims) were occasionally suffered to live among Christians on terms of submission and yet were still subject to regular bouts of violence or expulsion. This began to change with the Protestant Reformation. New beliefs arose that again divided Christians. As some monarchs became Protestant, Europe entered into a long period of religious warfare as the various sides tried to compel each other to believe as they believed. These religious wars largely came to an end in 1648 with the Treaty of Westphalia, which provided that each political realm would have its own religious beliefs. There now would be tolerance or religious freedom at least for rulers. Monarchs were still free to persecute those they considered heretics within their realm, and often did. A century later, some countries—like the United States—began respecting a principle of religious freedom for all individuals, not just for monarchs.

Tolerance or religious freedom took hold not because anyone stopped caring about right belief, but because the cost in violence was too high in trying to make everyone believe in orthodoxy. It was in the rise of this principle of religious freedom that the two arenas were split apart. Thus we talk of separation of church and state. People could use argument and persuasion to draw adherents to their church, but in the public square, live and let live was to be the norm.

The two arenas regularly collide. Religious beliefs, for many, carry convictions about how we should behave—and not just in private but also in public. Religiously based morality, they believe, should apply everywhere. Hence we have controversies about things like abortion, the teaching of evolution in schools, conscientious objection from military service, public prayer and religious monuments, and much more. We make some concessions to allow people to live out their religious convictions in the civil arena: some think we make too many concessions, some think too few. The debate about RFRA is about whether we should allow another concession, one that would allow people to refuse service to some to avoid any participation in what they consider sinful behavior (read: cakes or photographs for same-sex marriages).

I believe this ‘religious freedom’ law is a wrong step. We said no to something similar when we said restaurant owners (etc.) could not refuse service to African-Americans on religious grounds. As with race and gender, so it should be for sexual orientation. In the earlier piece I said “we will not allow the fabric of our society to be torn apart by the exercise of religion; we said we must act civilly toward one another.” Public accommodations (restaurants, motels, commercial services) must be available to all on an equal basis: that’s the right approach in the civil arena.

Similarly, I believe that the law ought to permit same sex marriage. There is no legitimate public purpose to permit opposite sex marriages but not same sex marriages. To allow the one without the other is to allow religious purposes to be enshrined in law. Non-discrimination and equal regard are the principles that should prevail in the civil arena.

Not only do I believe this ‘religious freedom’ law is a wrong step, I believe it is being put forward with cynical intent to incite opposition to same sex marriage. The legitimate balancing purposes of religious freedom legislation are already well ensconced in the federal law passed in the 1990s. You get a glimpse of the cynical intent in the claim by Gov. Pence and others that the recently proposed Indiana law is ‘just like’ the federal law when it actually went much farther in allowing religious claims to trump civil equality.

I believe it was right to push back against the original Indiana RFRA and the similar versions now being put forward in other states. (Note: someone is coordinating this campaign.) But, as I said in the original piece, I think this controversy is a sideshow, and we want to be measured and thoughtful in our pushback because two other matters require our strength.

One need is to continue the fight for same sex marriage in every jurisdiction in the United States. That’s the real front in the civil arena. The denial of marriage rights is where the most harm is being done.

The other need is to speak clearly and yet respectfully to those religious people who believe homosexuality is a sin. It is not legislation (nor the repeal of it) that needs to be our approach in this religious arena. We need to speak to them in a religious voice, one genuinely grounded in care and love.

The prejudice against LGBTQ people is not a true leading from God, of that I am quite sure. But how to help others find their way to this understanding? Not through arguments about public policy, especially arguments that seem to demean religious belief. We cannot allow this to be an argument that pits religious people against secularists. (Of course there are religious people who think this is a bad law.) I worry that the more we rise to the bait of arguing against things like the Indiana RFRA, the more we appear to be saying that we place no value on religious matters. We may be maneuvered into appearing to care only about the civil arena and not at all about the religious arena. That’s precisely the appearance that those putting Indiana-RFRA-like bills in play want to bring about.

It is not a ‘quiet tone’ I am aiming for in this controversy. I certainly want to be strong. Rather I want to affirm LGBTQ rights and also affirm the importance of religion in a way that acknowledges that sometimes the exercise of religious rights collides with other rights.


About Doug Bennett

Doug Bennett is Emeritus President and Professor of Politics at Earlham College. He has a wife, Ellen, and two sons, Tommy (born 1984) and Robbie (born 2003).
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