Put it down as another installment in the Annals of the Stupid Party: A Republican legislature in Indiana passes, a Republican governor signs, a local version of the Religious Freedom Restoration Act (RFRA), the federal act passed by a Democratic Congress in 1993, and signed by Bill Clinton. Democrats joined passage of that act with more glee because it was a way of overruling a decision penned by Justice Antonin Scalia. Gov. Mike Pence notes, in signing the bill, that the new act essentially confirms the same kind of protection for the religious that the Supreme Court itself sustained just last year in the famous Hobby Lobby case.
Then the reaction comes in overnight: The act aimed to support, among others, those businessmen who were quite willing to minister to gay and lesbian customers, but were reluctant to lend their moral endorsement to same-sex marriages. Now there is an inflamed response, amplified in the media, spreading quickly through the country. The act could support “discrimination” against gays and lesbians, as though “discrimination” of any kind had to be the telling sign of wrongdoing. Wherein exactly were gays and lesbians suffering an unwarranted discrimination, and what “injuries” were they in danger of suffering? And where, by the way, were all the libertarians, usually so quick to defend the rights of small businessmen to be free to deal on terms of their own choosing with customers in their private businesses? In this notable case, the libertarians have been the dogs that haven’t barked in the night.
So, what do the Republicans of Indiana do in the face of a whipped-up fury that cannot give an accurate account of what it assails? Do they defend their act and make the case anew for religious freedom? Or do they seek to “solve” their problem by vowing now to “fix” a bill so carefully done that it needs no fixing? Do they seek to show now that they are not the villains described in the media (nicely confirming the premises of their adversaries)? And do they show their good nature now, their rejection of “discrimination,” by adopting what the gay activists have long wanted as the ground of their further claims—an act to bar discriminations based on “sexual orientation”?
Hence this signal addition to the Adventures of the Stupid Party: To placate its enemies, Republicans contemplate adopting a law that would decisively undermine the moral ground of their position, expose the logical flaws in RFRA that are best left unnoticed, and make their own version of RFRA far less defensible.
The Religious Freedom Act Needs No Fixing
RFRA in its current form needs no “fixing,” for it does the work it was meant to do, while causing the least disturbance anywhere else. Under RFRA, the question would be posed as to whether the object of the law could be satisfied with measures more narrowly tailored, without compelling people to violate their religious convictions. Even if there were a compelling interest in ensuring photos and cakes at weddings, same-sex couples would find no want of bakers and florists to supply their needs. There would be no need to compel businessmen to affirm same-sex marriage as a condition of being in business. The sensibilities of the religious could be respected without depriving same-sex couples of the services they seek.
But activists insist the interest of the state is not that of access to cakes and photos. What is at stake here for them here is a right to have access, as customers, to any business without encountering its owners’ moral reservations about same-sex marriage or homosexuality. So they seek a statute that would bar all discriminations based on “sexual orientation.” The Republican leadership in Indiana’s legislature has offered to accept laws of that kind where they already exist in the state (as in Indianapolis), and that arrangement may in fact trump the protections RFRA offers.
Even so, the other side will surely not accept such a fix. The outrage will not abate, the attacks will not cease, until the statute on “sexual orientation” is adopted for the state as a whole. The Republicans have already waived any objection to such a statute, so refusing to extend it to the rest of the state would be reduced to a quibble, with no reasoned ground of explanation. Yet, to back into a “fix” of that kind is to adopt a remedy that deepens the problem and makes the original law far harder to defend. Such is the travail of the stupid party: It is not clear about the principled ground of its own policy, and serenely ignores this as it adopts “fixes” at war with its own principles.
If Homosexuality Isn’t Wrong, It’s Wrong to Oppose It
RFRA backers have retreated quite plausibly to defending “religious freedom” as one of the refuges that may still be left as judges proceed to install same-sex marriage and set off a wave of intolerance. It shocks them that the notion of “religious freedom” no longer seems to recruit the residual sympathies of the public, and especially of the young.
But the deeper shock is that RFRA backers have not recognized the real moral asymmetry that comes into play against them: Gay activists are fully convinced that it is truly, deeply wrong to “discriminate,” to turn away from people, because of their “sexual orientation,” or their homosexuality. They draw upon the logic of a moral judgment Aquinas caught: that we are obliged to do what is right and refrain from what is wrong; that we promote what is right and discourage and repress what is wrong.
The law, they think, draws on this elementary moral meaning when it prescribes what is right and forbids what is “wrong.” “If slavery is right,” said Lincoln, “all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away.” These activists could be excused, then, for believing that if the law forbids discrimination based on “sexual orientation,” that discrimination is indeed wrong. In that event, the law would be justified in a wide range of measures to punish and forbid that discrimination. Against that deep claim of moral wrongness, RFRA’s backers would raise a claim to be exempted from the law, not by offering reasons to show what is wrong with the law’s reasoning and substance, but by invoking “beliefs” that do not claim to be valid for anyone who doesn’t share them. Those beliefs must be respected solely because they are “sincerely” held as “religious”—and the law may not inquire into what makes them “religious.”
That problem, running to the heart of things, was disclosed in the Indiana statute itself. As with most articles of legislation, the statute sought to get clear on the definition of the terms it was using. So the act seeks to set down definitions… of “demonstrates,” “granting,” “Establishment Clause,” “exercise of religious freedom,” but the one thing it doesn’t try to define is… “religion.” The drafters tell us what the “exercise” of religion may be, but not what is being exercised and how they know that it’s “religion.”
What Religion Does and Does Not Imply
James Madison suffered no such quandaries. By religion he said that he meant “the duty which we owe to our Creator and the manner of discharging it.” But that is not the understanding today, even in the ranks of some organizations that defend religious freedom. For it involves a rather definite understanding of God—the God of the logos, of reason, the God who wishes people to come to their devotion through reason rather than coercion. It is the God mentioned in the Declaration of Independence, the Author of nature’s laws, including the moral laws. But that understanding is far too narrow for the people who would defend a more capacious view of religious freedom, and that is the understanding that comes along now with RFRA.
Gay activists have not become entirely untethered from their reason, then, when they argue that exemptions for the “religious” could indeed provide a ground of exemption from laws on “sexual orientation,” as on many others among our laws. If there is a remedy for the conservatives and religious here, it comes in countering the proposals on “sexual orientation” as we would counter any other laws that would restrict personal freedom: by testing in a demanding way the meaning and justification of that proposal that people would impose as law. The most sensible path, that is, still involves the challenge to the substance of the law itself.
It is a telling—and forgotten—piece of history here that when Bill Clinton supported a bill to bar discriminations in employment based on “sexual orientation,” its earlier version contained exemptions for religious institutions. (This was ENDA—the Employment Non-Discrimination Act.) Clinton would never attach such an exemption to a bill that barred discriminations based on race. That itself was a sign that there was something different about this kind of “discrimination.” And that may suggest why this legislation proved to be so enduringly problematic that it couldn’t be passed even by Democratic Congresses with a Democratic president.
Even Gay People Discriminate Based on Sexual Orientation
Breaching the matter provokes the most obvious questions as to what exactly is being forbidden and what class of victims the bill would protect. Instead of going first to people who are averse to the bill, a more revealing key would be found among the gay activists themselves: They have an ongoing argument over whether the gay pride parades could include members of NAMBLA, the North American Man-Boy Love Association. In other words, pedophiles. The facile explanation, quickly issued, is that the activists are talking about sexual relations only among “consenting adults.” As it turns out, the men in NAMBLA can offer quite a plausible and serious argument as to why the age of “consent” is irrelevant here. But, in any case, it happens to be their sexual orientation and they respect it.
Yet when activists insist on the test of “consenting adults,” they are doing nothing less than making a moral judgment and stamping this variety of sexual experience as an “illegitimate” orientation. That has to create the severest crisis for any legislation on this subject: For if the activists themselves are willing to regard certain sexual orientations as “illegitimate,” then it could hardly be justified to legislate in a sweeping way by barring all discriminations based on “sexual orientation.”
But if the legislation cannot be cast in that way, what would it say? It couldn’t bar people from “casting adverse judgments on people for the way they achieve their orgasms,” for that would protect rapists. It is not at all clear what words could plausibly be offered here—and the point is that the proponents of such a law should not be spared this difficult task in explaining what exactly their law would forbid.
The problem heightens when we consider how exactly we would identify the people to be protected. In a brief to the Supreme Court last year, Paul McHugh of the medical school at Johns Hopkins noted how unstable is the category of “sexual orientation.” People shift in and out of these “orientations” all the time. McHugh noted that “a 10-year study of 79 non-heterosexual women …in 2008, reported that 67 percent changed their identity at least once, and 36 percent changed their identity more than once.” Some people have the “orientation,” but seldom if ever act upon it. How are they to be noticed as part of a potential class of victims when they come to the door?
Either Homosexuality Is a Preference or Matter of Morality
There had been no such previous problem for restaurants and clubs in noticing black people coming to the door seeking entrance. But the simple truth told by many businessmen, even those who are reserved about the homosexual life, is that their disposition is to accept the business of virtually anyone who comes through the door—unless of course they cling to such policies that “discriminate” against people who come in shoeless or shirtless, or are otherwise unsuitable to the decorum or character of the place.
The problem is more likely to arise, as we’ve seen, when customers that bakers or florists have long served suddenly demand the recognition of their same-sex marriage. As Lincoln said of the defenders of slavery, “Silence will not be tolerated—we must place ourselves avowedly with them.” Their demand makes sense only because it has become important to activists to extract from the unwilling the confession of the rightness of the homosexual life and the wrongness of expressing any reservation about it. In the case of same-sex marriage, the demand is all the more extravagant because it would have people profess that there are no plausible reasons to hold to a form of marriage that remains powerfully reasonable, and whose rationale has been met mainly by a stolid refusal of Justice Kennedy and other judges to deal with those reasons, to rule them out simply as blind “animus.”
At the ground of it all is finally the question of just why it is wrong for people to cast an adverse judgment on the homosexual life. At first we were told that these were simply matters of personal taste, that we should no more judge the character of a person by his style of sexuality than by his preference for peanut butter over coq au vin. But if it is simply a matter of taste, the demand for acceptance is amply met by the report that “that is a taste we don’t happen to share.”
Yet, as we’ve seen, the argument that began with the wrongness of casting judgments on matters of taste moved on, in its momentum, to casting the most severe judgments on those who would cast judgments! What has not been explained, even now, is why it is wrong to cast moral judgment on sexual styles, whether heterosexual or homosexual. Gay activists will register their own objections to NAMBLA or to those who boast of a staggering number of partners, including strangers. Even the most liberated among us may have certain doubts about putting children in the hands of an adoptive father who acknowledges his deep absorption in sado-masochistic sex. There may be grounds quite plausible for casting these adverse judgments on modes of sexuality—and casting them even when those judgments have to be made in the law.
Challenge the Claim that One Can’t Judge Sex
What I am arguing, then, is that this issue, suddenly flaring in Indiana and the country, and inflated with the most bizarre charges against the religious, could be deflated, with the moral outrage drained, if we simply challenged directly the claim that drives it all: that it is deeply wrongful to cast judgments on the way people act out their sexual lives, warranting a ban on all discriminations based on “sexual orientation.”
So we wait to see what genius Gov. Pence and the Republican leadership will produce as they try to “find a way out of this one.” Mike Pence is a good man, and he has received the plaudits of the Federalist Society as he has invoked the tag lines about “federalism” and a limited government of “enumerated ends.”
But the current crisis is like the light held to the retina, which reveals a vast amount of information about the state of organism. What it reveals here is that so many conservative leaders have the tag lines ready at hand, but once they are challenged, they cannot move from the surface of things and give the deep reasons that make their position defensible. We may have then just another glimpse of the state of the conservative political class.
And we can probably predict that if there is no attempt to offer a moral defense of the law in Indiana, the consultant class will draw this inference as its ongoing wisdom: that it is far better for the Republicans to steer away entirely from these vexing moral questions, and concentrate on taxes and regulation. Those vexing questions just happen to go to the very core of what constitutes this regime or our way of life; but for Republican consultants those issues are distant from the business that counts as their political life.