The Left’s Radical Consistency On RFRA

The Left’s Radical Consistency On RFRA

The Progressive ideology explains why the Left supported RFRA in 1993 but is so opposed to it now.
Andrew Evans
By

Many conservatives have been scratching their heads over the uproar in Indiana and Arkansas as those two states passed Religious Freedom Restoration Acts. The progressive Left has led the uproar in support of gay rights, but the laws passed in those states are very similar to a law Bill Clinton signed that a Democrat-controlled Congress passed in 1993. Not only that, then-Rep. Chuck Schumer and the late Sen. Ted Kennedy, noted liberals both, introduced the federal RFRA that passed unanimously in the House and with only three dissenting votes in the Senate.

So why are progressives in such a tizzy about these states’ RFRAs? Aren’t they being inconsistent and hypocritical? How could such progressives as Kennedy support RFRA then but progressives now so vehemently oppose it?

Progressives aren’t exactly being inconsistent or thoughtless reactionaries here. Instead, they are acting on one of the deepest impulses in their ideology: the pursuit of complete individual autonomy and self-realization.

The Original RFRA

Congress passed the original Religious Freedom Restoration Act in response to a 1990 decision by the Supreme Court, Employment Division v. Smith. In that case, a couple of Native Americans who worked at a private drug rehabilitation clinic were fired after taking peyote, an illegal drug, as part of a religious ceremony. The two workers applied for unemployment benefits, but the state of Oregon denied their application because they were fired for a legitimate cause—taking an illegal drug. The two appealed, and the Supreme Court ruled that Oregon could deny unemployment benefits to the men who ingested peyote because the state does not have to exempt individuals from a general law.

At issue was the freedom of a small and historically repressed group (think the Trail of Tears) to practice their idiosyncratic religion.

Many people viewed this decision as a terrible mistake. The men had to take peyote as part of their religion, so to penalize the men for following their religion (by denying them benefits) infringes on their religious freedom. So, in response, Congress overwhelmingly passed the federal RFRA, which prevents the government from “burdening” people’s practice of their religion unless it has a “compelling” reason for doing so and is doing so in the “least restrictive” way possible.

The circumstances of the 1993 federal RFRA are essential for understanding why progressives (and indeed, nearly everybody) supported it then: At issue was the freedom of a small and historically repressed group (think the Trail of Tears) to practice their idiosyncratic religion. Native Americans had no great sway over the broader culture, and they did not have a sufficient mass to compel others to follow the dictates of their religion. At issue was simply the ability of few people to live how they wanted to live—to realize their lives according to the dictates of their conscience. The government was making it harder for them to live as they wanted to live, so the people, through Congress, rose up and defended this freedom.

Kennedy pointed, if subtly, at this reasoning in his opening statement at a hearing on this law back in 1992. “The brave pioneers who founded America came here in large part to escape religious tyranny and to practice their faiths free from government interference,” he said at the beginning of the hearing. “The persecution they had suffered in the old world convinced them of the need to assure for all Americans for all time the right to practice their religion unencumbered by the yoke of religious tyranny.”

The emphasis here is on individuals escaping tyranny—not on the importance of protecting religion.

Kennedy here is making a fairly uncontroversial statement, but his emphasis is enlightening: A discrete group, the “pioneers,” came to escape “religious tyranny” (a phrase he repeats twice in these two sentences) that prevented them from living out their religion. The emphasis here is on individuals escaping tyranny—not on the importance of protecting religion. The pioneers were being repressed, so they acted to fulfill the dictates of their conscience. The great evil is tyranny, and just as the pioneers set up a country to prevent tyranny, the 1993 RFRA was a renewed effort to liberate from tyranny.

Evangelicals and RFRA Today

The victims of “religious tyranny” then were a very sympathetic group: powerless Native Americans, humbly seeking to live out their faith. Everybody (except those three obstinate senators) could and did rally around them. But the context today is radically different.

Evangelicals are a very different kind of victim than Native Americans: They are millions strong and have a strong influence across the country.

The immediate context for RFRAs now is the Hobby Lobby Supreme Court decision, which was decided only last year. The victim in that case of government oppression was not such a sympathetic group; instead, it was a huge chain store that employs more than 20,000 employees and brings in billions of dollars in revenue a year. Its owners are quite rich—and they happen to be evangelical Christians.

In Hobby Lobby, the Supreme Court gave a corporation owned and run by evangelicals the right to opt out of a federal regulation requiring the company to provide its employees certain kinds of birth control. And evangelicals are a very different kind of victim than Native Americans: They are millions strong and have a strong influence across the country, particularly in the South. Their faith has shaped the country, especially at the local level, for centuries.

Evangelicals, in other words, are a large and powerful group with considerable influence over society. And what are evangelical Christians known for? For better or for worse, they are known for the culture wars, and right now the culture war is over gay marriage. On this issue, the vast majority of evangelicals are at least uncomfortable with, if not outright opposed to, gay marriage. While 39 percent of all Americans oppose gay marriage, 70 percent of white evangelicals oppose it, according to Pew (while 49 percent of black Protestants oppose it, compared to 43 percent who support it).

Gay-rights activists have a great concern with RFRAs like the ones passed in Arkansas and Indiana: They are worried the law could be used as a shield to protect evangelicals when they discriminate against gay couples. A Christian florist, baker, or even a pizza maker could refuse to offer his or her services at a gay wedding simply because the couple marrying is of the same gender, and the state RFRA could be used to protect the Christian business even as it discriminates.

Gay activists are worried RFRA could be used as a shield to protect evangelicals when they discriminate against gay couples.

In the hypothetical conflict between the Christian pizzeria and the gay couple hoping to wed, the victim is much less clear, especially for progressives. Back in 1993, the victim was a small minority of the population that has been historically repressed and who hopes to live out their deep convictions despite a general prohibition against it. Much the same could be said about the gay couple now: Same-sex couples are a relatively small part of the population that were forced into the closet for many years, who were often ridiculed and treated shamefully when out in the open, and who hope to live out their lives according to their deepest convictions.

Evangelicals, in contrast, have been in a position of power across the country for many years. They have shaped the laws and mores of the country, and the historic cultural reluctance to accept the legitimacy of homosexual relationships, which existed up until a couple of years ago, is no doubt rooted in the Judeo-Christian prohibition of homosexuality.

Gay-rights activists, and progressives more broadly, therefore see in evangelicals not a repressed minority (for in many places, especially rural areas across the South, they are in fact not a repressed minority) but rather a powerful purveyor of an insidious belief that needs to be destroyed.

The Government Must Stop Stigma

To understand why progressives see evangelicals as the enemy here, we have to understand their understanding of liberty. Liberty, for them, is the ability to live life fully free from any constraints or barriers. It is the ability to live autonomously—literally, to legislate my own laws myself for how I will live. It is the freedom to realize “who I am”—think of the popular phrase, “You do you.” It is to live with no reference point except to what I myself will to be true.

Liberty, for progressives, is the ability to live life fully free from any constraints or barriers. It is the ability to live autonomously—literally, to legislate my own laws myself for how I will live.

In the struggle for this Progressive ideal of freedom—which we can call autonomous freedom—government is not a great danger. True, it was a danger back in 1993, but, properly harnessed, government can be a great liberator. It liberates from material poverty. It liberates from the constraints of family (by subsidizing poor mothers without a husband to provide for them). And it can be used to liberate from stigma.

Stigma is a great inhibitor of autonomous freedom. Stigma is a general disapproval of how someone is living. Stigma can manifest itself in subtle gestures—microaggressions—but it can also manifest itself in more overt actions. A pizzeria refusing to cater a wedding stigmatizes the wedding because the pizzeria owner is effectively telling the couple, “I don’t approve of what you are doing. I see what you are doing as wrong, and I want no part in this.”

The couple, as a result, feels bad. Not only do they feel bad, they might censor themselves out of fear and a desire to be accepted—a natural desire we all have. They will, as a result, be constrained and unable to live their life fully according to their deeply held beliefs.

Because of stigma, the great danger to autonomous freedom is society—that great, wild space between individuals and the government. In society, with its various and multifaceted relationships and networks, people can come to see the world in different ways, and the result of those different viewpoints can be clashing views over what is right—followed necessarily by one group’s disapproval of how another lives. Freedom means people think differently, even over the most fundamental things, and that freedom can mean stigmatizing people for believing or behaving in certain ways.

Freedom means people think differently, even over the most fundamental things, and that freedom can mean stigmatizing people for believing or behaving in certain ways.

As a result, progressives want to regulate and control society to the point where nobody is stigmatized, as stigma is a form of oppression that prevents full autonomy. The result, progressives think, is that everybody can live according to their deeply held beliefs. Evangelicals can go worship their god while gays can get married with pizza catered from any pizzeria they choose.

In their pursuit of autonomous freedom, progressives seek to liberate the individual from any constraints that might hinder how he or she lives. Those who have most been constrained are the ones most worthy of protection and help, as they should have the ability to live as fully as others who happen to be part of more powerful groups.

Religion, in most cases, is not itself worthy of progressives’ protection. It is a force that ties individuals down and constrains their beliefs and actions. When it is lived out in society, it can take on a life that impacts other people and constrains their choices. Only when an individual is trying to live his religion against constraining forces do progressives have some regard for religion—and then only with reference to the individual’s autonomy.

In Defense of Society

At the heart of progressives’ pursuit of liberty stands a fundamental distrust of society. Society, left free, is a place of great repression and trouble for individuals. The starting point for progressives is the individual, and the two great goods they seek are the free individual and the caretaking state. The bonds of society that might hinder how the individual lives—whether the dictates of a religious body, the policies of businesses, or the approval of peers—are to be regulated, if not cut down, by the state. The bonds of society are like a spider web that you just ran into and are trying to get out of your face: sticky, hard to get rid of, and superbly annoying.

At the heart of progressives’ pursuit of liberty stands a fundamental distrust of society.

So where are conservatives to start when responding to progressives? They could start by pointing out the inconsistency in the progressive position—freedom for one group should mean freedom for all groups, right? The Christian pizza maker should be free to run her business according to the dictates of her conscience, no?

Starting by appealing to individual freedom is not a bad place to begin, but conservatives must recognize that this is almost precisely the same argument that progressives are making. Progressives want the same freedom for people to live according to their deeply held beliefs—they just see danger lurking not in government regulation but in social mores.

Conservatives must therefore go further: They must appeal to the good of a healthy, thriving, free society. In society—the messy, often annoying web of connections and bonds we have with the people around us, whether our employers, friends, local shop owners, or coreligionists—is where people are able to live out our nature most fully. People are social animals, and any attempt to insulate the individual from society means that individual loses a great part of his humanity.

The Progressive view of freedom—individual autonomy—regards society with suspicion, something to be watched carefully and tamed where possible. The conservative view of freedom is only possible within society. Conservatives want people not simply to be free from constraint but free to live a good life. That good life—that fully human life—means living in society, with all its messiness. And religion is a very valuable part of society, as it binds people together in a common pursuit of a vision of the good life.

Religion is a very valuable part of society, as it binds people together in a common pursuit of a vision of the good life.

For conservatives, government should be in the business of protecting society, that place where life happens. That means protecting the forces that animate society—religion included. Religion is not a force to be watched warily, resigned to its existence, and swatted back into its proper place when it oversteps. It is a force to protect, as it is one of the great bonds in society that ties people together and makes life good.

The government should only interfere in society when trying to root out a great evil in it. The residual effects of slavery in the Jim Crow South were that kind of evil and justified government intervention. It is not clear that partial acceptance of the legitimacy of homosexual marriage by the broader culture is that same kind of evil.

Society—that space where people make decisions about how to interact with each other and what they will value—is the place where real life happens. It is the place where we work, where we shop, where we volunteer, where we worship. It is where we figure out the implications of our beliefs. It is the space where life happens.

Progressives, it seems, simply do not see society this way. This is why they supported RFRA in 1993 but oppose it now. RFRA is a step toward protecting the bonds that make up society. When protecting oppressed individuals, it is a useful tool for progressives. But when protecting a force that has considerable sway over society, it is a terrible law that is to be opposed.

Their lodestar is individual autonomy, not a free society.

Andrew Evans is the assistant editor at National Affairs. He lives in Washington DC with his wife.

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