Indiana's RFRA: the fallout, Part I

by Michael Sean Winters

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The fallout from the fight over Indiana's Religious Freedom Restoration Act (RFRA) continues. Some of the commentary has been thoughtful, and some of it has been histrionic. As the dust settles, however, there are lessons to be drawn for all involved. This morning, I would like to address what are the principal lessons for the three groups I care about who were affected by the debate, starting with political liberals and liberal Catholics. Tomorrow, I will sketch the way forward for the leaders of the Church.

It is more than a little shocking to see major media outlets putting the words religious liberty in scare quotes as "religious liberty." It is yet more shocking to see liberals, for whom conscience rights are, or should be, as foundational a concern as any, fail to even acknowledge the possibility that government should tread lightly on the consciences of its citizenry. Yes, our nation was founded on many principles, and equality is one of those principles. But equality cannot trump everything, and conscience is one of the things it cannot trump.

When equality comes into conflict with minority rights -- and traditional Christians are a minority today -- there is a balance to be struck. That is the whole point to RFRA legislation: It requires courts to balance the interest of government in pursuing its objectives with the rights of individuals to be different. No liberal should sneer at concerns about conscience rights, and if you only celebrate conscience rights when a person invokes their conscience in support of a cause with which you agree, you are not celebrating conscience at all. You are celebrating agreement with your preferred political beliefs.

Regrettably, political liberalism today often has more to do with identity politics than principled politics. The Democratic Party does not so much stand for the principle that a woman should have the right to an abortion as it does for the proposition that women's groups can articulate a political orthodoxy to which all must adhere. LGBT rights' advocacy is a fine cause, to be sure, because LGBT Americans have long suffered the ill effects of discrimination. But it is a little creepy that people who do not sign on to each and every demand of the LGBT partisans are dismissed as bigots, told they are on the wrong side of history, or marginalized in other ways.

At The Atlantic, Conor Friedersdorf has a fine essay on the way both traditional Christians and LGBT Americans feel under assault and how both groups lack any capacity to recognize the legitimacy of the other side's sense of being under siege. Empathy has never been a strong suit of traditional Christians, but liberals did once prize empathy. They should learn to do so again.

Liberal Catholics are uniquely placed to help bridge the divide that exposed itself in the last couple of weeks. The media narrative posited two opposed groups: religious believers keen on discriminating against gays and gay rights groups indifferent to the conscience rights of religious believers. Can those of us who claim the mantle of liberal Catholicism insist that such a division into two camps is a thing to be resisted? Can we initiate conversations that will help generate the empathy with the sense of being beleaguered that both sides express? 

Peter Steinfels at Commonweal published an admirable column that starts precisely that conversation. If more liberal Catholics follow Steinfels' lead, this could be a great moment for liberal Catholicism. We are not in bed with conservative Republican operatives trying to push GOP-dominated state legislatures to get as much as they can. We will not wink at discrimination or at dismissing the significance of conscience rights. Liberal Catholics: Arise. Your country and your Church need you.

There is a further problem with the facile divide between believers and gay rights advocates. Where does that divide leave someone like me? I not only object to laws that permit discrimination against gays, I also support laws that protect the conscience rights of believers -- and of nonbelievers, who have consciences also. But I also resist the idea that religion should be used to justify discrimination.

There is an internal conversation taking place within the Church that needs our attention as much as the conversation regarding religion in the public square. Is baking a cake for someone's wedding really a significant form of "cooperation with evil"? Not all consciences are the same, but I would suggest that a conscience that thinks discrimination is just fine is an ill-formed conscience. A conscience that is indifferent to the suffering discrimination causes is an ill-formed conscience.

There are distinctions to be drawn. Say a gay couple walks into a bakery. The baker has half a dozen wedding cakes on display, and the couple asks, "Can we have cake No. 2 for Saturday?" All the baker knows is that the couple wants cake No. 2. If she asks, "This isn't for a gay wedding, is it?" she is showing a morally unnecessary prurience that disrespects the privacy of the customers.

But say the couple asks the baker to write the words "Marriage equality forever" on the cake. Now, a case can be made that the baker is not expressing any ideas by fulfilling the request; the idea belongs to the couple that has requested it. If I were a confessor and the baker came to me with a concern regarding such a situation, I would try and put their conscience at ease, assuring them that they were not cooperating with evil. Nonetheless, it should not go unremarked that a different part of the First Amendment, the guarantee of free speech, is now involved.

But say a racist wants a cake and asks the baker to inscribe "White power" on the cake. I use the racial analogy precisely because too often, the proponents of RFRA laws make the kind of sweeping statements that make you wonder if they object to the 1964 Civil Rights Act.

In this Associated Press story, Baltimore Archbishop William Lori is quoted as saying, "Individual or family-owned businesses as well as religious institutions should have the freedom to serve others consistent with their faith." No, they shouldn't, at least not necessarily. There were plenty of white Americans, some of whom were bakers or wedding photographers, who believed their religion dictated or at least justified the separation of the races. Our nation said, "Sorry, not good enough," and our nation was right to say so.

Finally, I suspect that only a liberal Christian, and probably a liberal Catholic, will be able to provide this discussion with the thing it most needs, a Sister Souljah moment. In 1992, the rap artist said: "If black people kill black people every day, why not have a week and kill white people?" Bill Clinton -- who was then running for president, enjoyed overwhelming support from African-Americans, and who would even be called America's first black president by Toni Morrison -- went before an African-American audience and criticized Sister Souljah's remarks. It was a moment of rare courage from the always-slippery Mr. Clinton, so slippery that many people felt the moment was contrived, an effort to reassure white voters. It may have been, but who cares. Mr. Clinton said it, and he said it in front of an audience that also felt itself beleaguered, under attack. Yet they needed to hear it. If there is to be a Sister Souljah moment on the issue of RFRA, it will only come from the bleachers on the left, not the right, of both Church and State.

Tomorrow, the way forward for the leaders of our Church. 

A version of this story appeared in the May 8-21, 2015 print issue under the headline: No liberal should sneer at conscience rights.

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