Cross Purposes: Should Anti-Discrimination Laws Trump Religious Freedom?

The good news coming out of the just-concluded legislative battle in Arizona is that religious freedom remains what it has been there, undiminished by Governor Jan Brewer’s veto of a bill meant to protect it. The bad news is that the debate over religious freedom has taken an ominous turn. Here are six takeaways from the controversy.

The media cannot be trusted to report accurately on social issues. I mention this first not because it is the most important part of the Arizona story — though it is very important — but because it has made understanding that story so difficult. The press leans to the left, as everyone knows, and especially on social issues. CNN anchors more or less openly advocated for a veto of the bill, which they would generally not do on tax legislation.

Political journalists tend to accept social liberals’ framing of issues, their terminology, and their claims, and to believe the worst about social conservatives. In the Arizona debate, these tendencies manifested in widespread reports that the bill authorized businesses to refuse to serve gay people who wanted to be their customers and in the labeling of the legislation as “anti-gay.”

Headlines in the New York Times, the Washington Post, USA Today, and many other outlets either used that label or repeated that claim. In their limited defense, the proximate reason for the legislation does have to do with homosexuality: Conservatives were concerned that without the law, business owners who object to same-sex marriage might be forced to take actions they regard as participating in, facilitating, or condoning it. They were moved by cases such as one in neighboring New Mexico, where a wedding photographer was punished for refusing to serve a same-sex commitment ceremony.

The legislation itself, however, did not mention gays, homosexuality, or same-sex marriage, and largely tracked the federal Religious Freedom Restoration Act (RFRA): a law that was enacted by large bipartisan majorities that included many liberals and was signed by President Clinton in 1993. It would not have authorized business owners to turn away gay customers — which, by the way, is something Arizona law already allows but that businesses have not been eager to do. It would not even have authorized bakers to refuse to make a cake for a same-sex wedding, which is a scenario both sides of the debate often mentioned. It would have given those bakers a claim in court but not guaranteed their success with it.

The RFRA says that religious believers can get exemptions from a generally applicable law if they can convince judges that the law imposes a substantial burden on the exercise of their faith and is not the least restrictive means of advancing a compelling interest of the government. That is the same rule that the Supreme Court followed, as a matter of First Amendment law, from 1963 through 1990. Neither the Court during that period nor the RFRA says that the religious believer’s conscience will always trump laws. The Arizona bill would not have said that either.

In cases where the government was trying to force a religious believer to do something he considered contrary to his faith — or a private party was trying to use a law to force him to do that — the believer would be able to ask the court to grant him an exemption if his case passed the law’s tests. The Arizona bill differed from the federal law, and clarified previous state law, in two ways. It explicitly allowed businesses, not just individuals, to make conscience claims in court, and it explicitly allowed the claims to be used against private litigants. Whether the federal law applies in these cases is disputed.

Neither difference would seem to justify labeling the Arizona bill as “anti-gay,” given that almost nobody labels the federal law that way.

What has changed since 1993 is American liberalism’s view of religious freedom. The RFRA was not something liberals conceded to religious conservatives. It was something they affirmatively sought. Then-representative Chuck Schumer (D., N.Y.) was a sponsor, and Senator Ted Kennedy (D., Mass.) was a strong supporter.

Now liberals regard religious exemptions from laws as suspicious privileges for religious believers. Brian Beutler, writing in Salon about the Arizona bill, makes the point thus: “To support SB 1062 you must conceive of religious liberty as a social trump card. . . . This view writes democratic norms and competing liberties entirely out of the equation. . . . That view reflects an old, reactionary conception of liberty.”

Beutler’s account is an overstatement but not an invention. The old, reactionary conception of liberty championed by Ted Kennedy really did regard religious liberty as a trump, in many instances, over laws that were enacted democratically to advance other values. The same is of course true of any other liberty: If it does not sometimes act as a trump, it does not exist; and if it does not often act as a trump, it hardly exists.

Beutler suggests that churches that refuse to marry same-sex couples should lose their “privileged tax status.” I doubt many liberals are there yet. They will probably move first against groups such as the Knights of Columbus, demanding that their halls be made available to same-sex weddings. But give them time.

The advance of gay rights has at best an ambiguous relationship to the older conception of liberty. Obviously, liberalism’s growing coolness toward religious liberty is intimately related to the growing place of gay rights within it and within American society. Those Americans at the forefront of this trend see it, and describe it, as a straightforward victory for liberty. And some of its important milestones fit the libertarian or classical-liberal template perfectly: in particular, the abolition of laws against sodomy.

Same-sex marriage is a different sort of issue. Governments do not “ban” it in the way some of them ban marijuana or once banned pornography: The question is whether they will grant it official recognition. (The fact that even National Review Online headline writers frequently describe laws defining marriage as the union of a man and a woman as “bans on gay marriage” is a testament to how deeply confused the debate has been.) The libertarian argument for same-sex marriage is rooted in discomfort with marriage as a separate legal category of its own rather than as one of an infinite variety of contracts individuals can make. That argument has not played an important role in the public debate.

In the dispute over the Arizona law, people who profess themselves to be dead set against using government to impose morality have cheered on exactly that. They see it as the only way to keep religious-conservative florists, bakers, and other businessmen from imposing their moral views on their customers. But this is true only if an insult, or a perceived insult, is an imposition. Only then can the old-fashioned pluralist answer to how to get along in the presence of differing moral views — keep the state out of it, and go to the shop down the street — be dismissed.

The regime of anti-discrimination law has worked a revolution in American liberalism, and American life. The reason the pluralist answer is no longer the default one is, of course, the struggle against Jim Crow. Hence its specter has appeared in the debate over the Arizona law. A few conservative defenders of the Arizona bill have argued that private actors should have the right to discriminate at will. But not many people are willing to follow that thought to the conclusion that the Civil Rights Act of 1964 has to go. Even the idea of a religious exemption from laws against racial discrimination makes most of us queasy, since we remember that some segregationists used religious justifications. (They lost in court.)

It is not impossible to devise an argument for leaving in place the rules against discrimination based on race while refusing to outlaw discrimination based on sexual orientation. While gays and lesbians have often been shamefully mistreated, they do not suffer under any oppression as terrible as slavery and segregation were, and the extraordinary measures that we have taken to destroy and prevent the reemergence of those latter evils are not called for.

If we thought about freedom and discrimination that way, we would start with a presumption in favor of tolerating private discrimination that we would overcome only for a very strong reason. The moral force of the attack on Jim Crow has instead created a strong tendency in our culture to think of anti-discrimination as something close to an absolute principle — a tendency with far-reaching implications that Thomas Powers pondered in a 2001 essay in The Public Interest.

He noted that tolerance, government neutrality, and depoliticization were once the guiding ideals of liberalism. The anti-discrimination regime, he argued, weakens these ideals or even replaces them with a moralized politics and politicized morality. It takes the reshaping of opinion, through the marginalization and stigmatization of views it considers bigoted, as one of its main goals. A same-sex couple with a psychology shaped by classical liberalism might have seen the baker who refused to make them a wedding cake as sadly misguided, or a jerk. The new regime encourages them to see him as a civil-rights violator.

This mindset, far from being confined to a left-wing fringe, is now the dominant one in America. Ari Fleischer, a White House press secretary in George W. Bush’s administration and still an influential figure among Republicans, reflected its influence when he said of the Arizona bill, “This bill instinctively struck people as a violation of individual liberty.” The idea that an individual’s liberty is violated when a florist refuses to make arrangements for his wedding can be conceived only in a culture in which the old, negative concept of liberty is no longer instinctive.

So Republicans have not been reliable champions of religious liberty. Mitt Romney, John McCain, and Jeff Flake — both of Arizona’s Republican senators and both of the last two Republican presidential nominees — urged Governor Brewer to veto the bill. Maybe they believed the media’s description of that bill, although one might expect Republicans who have run for president to have some sensitivity to bias. Even some of the legislators who voted for the bill counseled a veto, saying they had not understood what they had approved. (Perhaps they had not understood how controversial it would be.) Perhaps they thought that there was no need to approve controversial legislation until Arizona actually had a case like the one in New Mexico.

If Romney, McCain, and Flake truly believe that a baker should have to bake a cake for a same-sex wedding, even if he considers doing so participation in and endorsement of something he thinks wrong, then they have taken a decidedly odd position. All of them oppose legal recognition of same-sex marriage. They would be saying that it is all right for the government to discriminate against same-sex couples, by refusing to treat their unions as marital, while also forbidding private actors to do the same. They would be saying that the government can symbolically say something that it can also forbid private actors to symbolically say. If this is the way they think, then the private–public distinction really has collapsed.

For all that, the fight for religious liberty is not over. “GOP’s ‘religious liberty’ scam just died” was the headline on Beutler’s Salon article, and the claim has been widely echoed. But we do not have much evidence on whether the bill, or the idea of protecting religious dissenters even at the risk of discrimination, is unpopular. Same-sex marriage now appears to have the support of a small majority of the population. Surely some significant number of those supporters do not regard the opponents as the equivalent of Bull Connor.

Formal religious affiliation may be on the decline in the United States, but religion is not going away and neither are religious objections to same-sex marriage. We are not going to reach a point where there are as few traditional Christians as there are segregationists. (In that sense, the ultimate cultural ambition of the movement for same-sex marriage is bound to be frustrated.) Republicans may not want to fight this fight, but they will be forced to have it. Their supporters will not stand by idly while the expression of their beliefs — beliefs connected to some of their deepest values — is criminalized.

Social conservatives will be better prepared next time. The coverage of Arizona made them look like aggressors in a culture war; in time, cases will accumulate that make them seem more like victims. And the kind of media hysteria that sank the Arizona bill is hard to sustain for extended periods. Round One of this struggle went badly for the partisans of the older, sounder concept of liberty. Future rounds may show that it still has life in it.

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