Here we go again. North Carolina is considering a version of the Religious Freedom Restoration Act—the same kind of legislation that recently caused quite a stir in Indiana. Within hours of signing that bill, there were accusations of discrimination and threats of economic boycotts against the state. Pizzeria owners who shared their opinion about the ongoing public debate were threatened and had to go into hiding.
I was vividly reminded of my own family’s experience with the complexities of freedom. For the first several years of our exile from Cuba in Puerto Rico, when my father got home, the first thing he would do was close the kitchen window as he said: “Just in case.”
The “just in case” meant he did not want our neighbors, whose townhouse was a mere ten feet away, to hear anything we said at home. It was a habit he had acquired before he left Cuba as he watched his neighbors and, eventually, his own brother, get arrested for things said at dinnertime.
As we all grew accustomed to freedom, we opened that one window—boisterously opining on the ongoing sexual revolution, politics, and religion. Every Sunday, extended family crowded the kitchen as we drank from the fountain of freedom of expression, sometimes until someone was offended or threw a plate. Or both.
Private Business Is Private Business—Right?
We believed that what we said at the kitchen table or how we conducted our lives was not a matter for government regulation. Until recently. A bill with wide public support in Indiana suddenly became the target of a nationwide campaign by activists and the media. In a complete upside-down spin, the bill to protect religious people from discrimination was attacked as bigoted. Before the media storm was over, a “fix” was pushed through under the banner of tolerance. The “fix” actually clipped the wings of freedom of expression and association the law had been intended to support.
Adding to the uproar were the actions of organizations such as the American Civil Liberties Union. Known in the past to defend freedom of speech, even when the speech was repulsive—as in the Nazi party marching through a suburb populated by Holocaust survivors—in this case the ACLU advocated restricting freedom. Bizarrely, they even expressed support for the idea that a gay photographer should be forced to photograph an event at the famously homophobic Westboro Baptist Church.
Much of the uninformed reaction rose from the hypotheticals raised: the gay man who walks into a restaurant and the restaurant refuses to serve him in the name of religion. The hypotheticals were as repulsive as they were powerful. The image raised in the American psyche was that of an embarrassing Jim Crow past.
But these imagined scenarios and the hysteria that followed do not serve freedom. Facts do. Since the passage of the federal version of RFRA, there has not been one single case when an exemption to an anti-discrimination law was granted under RFRA. Not one.
Protecting Free Speech and Association Promotes a Peaceful Society
Opponents will argue that with the advent of same-sex marriage, times have changed. But Professor Douglas Laycock, a supporter of same-sex marriage, provides a powerful response: sexual and religious minorities “make essentially parallel and mutually reinforcing claims against the larger society.” Namely, “[t]hey claim that some aspects of human identity are so fundamental that they should be left to each individual, free of all nonessential regulation, even when manifested in conduct.”
When those claims conflict—such as when a Christian baker is asked to provide a cake for a same-sex wedding—we must balance competing interests. We must weigh the harm inflicted on the same-sex couple (the inconvenience of finding services elsewhere, and the insult to their dignity) against the harm inflicted on the religious person (violating their deep religious commitments). That is why RFRA does not automatically side with one or the other. Instead it gives both claims a day in court.
In America, it is precisely our belief in freedom of speech, association, and religion that allows us to live in peace and with mutual respect even when standing shoulder to shoulder with people who may have offensive views and who disagree on matters that go to the core of who we are.
So, while I brace myself for the media storm that may follow the introduction of more legislation in North Carolina, I am also optimistic. I have great faith in the American people. In mid-April, the National Constitution Center held Freedom Day—a la Earth Day. Liberals, libertarians and conservatives met and debated religious liberty. There was a lot of disagreement, but there were a few kumbaya moments where we all agreed.
After all, why can’t we agree? Americans support religious liberty and are repulsed by the idea of government coercion. I believe we can cast aside what separates us. After all, in the heart of every American—of every political persuasion—is the desire to live in a country where one should never have to close the kitchen window “just in case.”