In this week when Christians and Jews observe some of their holiest days, the very concept of religious liberty has found itself, ironically, under massive cultural attack.
As democratically elected lawmakers in Indiana and Arkansas crafted legislation to protect religious freedom, they came under withering attack — accused of granting licenses to discriminate against gays and lesbians.
At issue is a kind of legislation known generically as a Religious Freedom Restoration Act. By effectively labeling RFRAs as “licenses to discriminate,” those who harbor concerns about how protection of religious conscience could limit the rights of LGBT persons found a potent political slogan. Never mind that the slogan distorts what an RFRA actually does; the sloganeering effectively killed the passage of an RFRA in Arizona last year.
Curiously, even as the full brunt of national media and national business interests was brought to bear on Indiana, polls indicated that most Indianans still favored the controversial legislation. Is that because most Hoosiers are bigots who secretly seek an opportunity to discriminate against gays and lesbians? Or could it be because they have sincere concerns about how expansion of governmental powers might affect their ability to organize and live out core religious beliefs without fear of coercion and retaliation?
Ironically, it may be that the recent and harsh response to RFRAs is precisely what worries many people of faith. Even as they attempt to exercise constitutionally protected rights of association and speech to inform public discourse from a framework of time-tested institutions and universalized morality, they are publicly pilloried for bigotry and animus.
Perhaps they see how individuals and organizations, often seeking to step aside from a requirement contrary to their religious convictions, can face intimidation, coercion and persecution because of conscientious objection to a secular standard.
And perhaps they have observed how such intimidation can come through the means of nondiscrimination laws that on their face seem important for protecting fairness, but sometimes fail to balance the free exercise of religion.
Sadly, the events of this week have highlighted how avoidable conflicts between religious liberty and nondiscrimination principles are exacerbated when advocates for nondiscrimination paint people of faith as bigots, and when people of faith fail to appreciate the brutal history of discrimination against the basic human rights of marginalized groups, such as gays and lesbians.
The Deseret News has long supported the basic judicial standard at the core of the federal RFRA and many state RFRAs. Namely, that when a court of competent jurisdiction observes that government action is substantially interfering with a sincerely held religious belief that it should ask whether the government has a very strong reason for burdening the exercise of religion (examples would be health and safety), and if there might be a reasonable alternative for government to achieve its aims. Without creating absolutes, an RFRA helps to re-establish a long-venerated judicial standard for adjudicating conflicts between state action and religious liberty.
But the effort to use RFRAs to regulate judicial decision-making actually highlights yet another pathology of today’s debate. By implicitly making the court the forum to balance the competing interests and rights within our pluralistic society, lawmakers are abdicating their own responsibility to balance, through lawmaking, competing interests and rights. They are punting admittedly tough decisions into a winner-take-all framework. Court decisions are one-sided: they are for-or-against, they are up-or-down. Although a lot of negotiation can happen on the steps of a courtroom, courts themselves are terrible places for finding intermediate solutions.
Consequently, although we support the jurisprudential standard found in RFRA, we do not see it as the first or best response for protecting religious liberty in contemporary society. Instead, we favor the kind of statesmanship shown right here in Utah.
Drawing first upon the social capital created by good institutions of civil society — namely nonprofit groups and churches — Utah’s legislators listened to what was most important to different groups whose ideals were potentially in conflict. Then lawmakers went to work, taking the building blocks of existing legislation to find common ground, expanding housing and employment rights to protect LGBT persons. And they also agreed that no one should be intimidated, mocked or silenced because they chose to follow their conscience.
There is a felt need to shore up religious liberties in the face of increasing secularism. There is a felt need to expand anti-discrimination protections. People of good will can and should work together with civility, tolerance and respect to accomplish fairness for all and to do it simultaneously. Finding the right balance in any given circumstance will vary based on the situational history and institutions, but we encourage those who are in a position to guide public discourse and legislation about these important issues to resist the impulse toward polarization and winner-take all solutions.