Religious Freedom Restoration Act
By Alex Saitta
April 25, 2015
Like most, I’ve heard and read about the Religious Freedom Restoration Act (RFRA) the past couple of months.
One, this is just the beginning. Legislatures and the Congress made such laws, and the cases are just starting to spill into the court system. We won’t have a good sense how this issue will be settled until such cases make it the federal appeals court system or 12 Federal Circuit Courts. Finally, the US Supreme Court will likely rule on this because this is clearly a federal constitutional issue. By the way, the 2016 Presidential election will be important, because the next president will select a Supreme Court Justice or two.
Clause In Conflict:
Like I said, the federal courts will decide this one. Why? Two major clauses of the US Constitution are at odds here. The Free Exercise Clause of the First Amendment ensures religious freedom is protected. Specifically, government shall not make or enforce any law prohibiting the free exercise of religion. The Equal Protections Clause of the Fourteenth Amendment ensures all people are treated equally. Government shall not make or enforce any law that abridges the privileges or immunities of its citizens.
The number of protected classes just keeps growing and growing. So far we have race, religion, ethic group, age, sex, pregnancy, family status, disability, veteran and now maybe/ likely sexual orientation. Looking at the list of protected classes, sexual orientation is probably the only one that clashes with a constitutional right like I described above.
Beit it a gay couple planning their wedding or a religious photographer asked to shoot their wedding, depending on which clause is argued, both sides can claim their rights are being violated, the federal or state law is unconstitutional, and the court will have to examine the facts of the case and decide which clause is controlling.
Indiana Before And Now:
Indiana’s initial RFRA law was built on the Free Exercise Clause. It stated a governmental entity within the state may not substantially burden a person's exercise of religion. A gay couple looking to hire a photographer, but denied the service could have gone to court to argue their equal protection rights were denied by that law.
Indiana’s amended RFRA law is built on the Equal Protections Clause. Indiana’s RFRA law added the following, this law doesn’t allow a business to refuse to offer or provide services based on race, color, age, disability… and sexual orientation. The amendment also provides punishment for violations. The photographer could argue his right to freely exercise his religion is being denied by that law, and he is being punished for it.
With these two rights in conflict, the court system will decide which right controls and in which circumstance.
What This Is Not:
More on that later, but let me first explain what this case is not. Those saying the baker, florist or photographer is discriminating against the gay couple like whites discriminated against blacks at the Woolworth lunch counter or on a Montgomery bus does not understand this issue. When the white bus driver told the black passenger to go to the back of the bus, the bus driver was not expressing a religious tenant or identifiable religious belief that was protected by the First Amendment.
Throughout the Old Testament homosexually is clearly classified as a sin. For example, Leviticus 18:22 states, “Thou shalt not lie with mankind, as with womankind: it is abomination.” The New Testament also labels homosexuality as a sin. Romans 1:27 is one such example, “In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error.”
It is not only the Judeo-Christian religions whose God calls homosexuality a sin. Islam states the same, and others too.
Action Vs. Event:
Next, there is a difference between an action and an event that few seem to notice as well.
If a couple walks into a photography store, announces they are gay, and wants to buy a picture frame, no one is saying the photographer will deny them the purchase. Rights are put in conflict when the gay couple asks, then demands and then under the threat of government punishment the religious photographer must participate in the marriage ceremony by shooting the wedding pictures. An event the photographer believes is sinful and potentially damning.
The photographer is not discriminating against the couple, but first and foremost trying to protect himself from participating in a sinful event and hence staining his soul in the eyes of his God. Unlike selling the gay couple the picture frame, clearly when the business activity puts the owner in the middle of an event that clashes with his religious beliefs a hard line is hit there. I believe the courts will see it that way too.
By no means am I an expert, and the courts my infringe on the rights of the photographer because it is for the "greater good", but I'm thinking if the photographer can provide the court proof he is truly a practicing man of faith, his faith clearly indicates homosexuality is a sin, and the photographer has consistently applied his faith in his business, he’ll be protected by the Free Exercise Clause. That is, any law forcing him to shoot that wedding or punishes him if he doesn’t, will be struck down as unconstitutional and ruled as a violation of the Free Exercise Clause of the First Amendment of the United States Constitution.
Additionally, I don’t believe the courts will force the photographer to provide the service against his religious belief because there is a very easy remedy for the gay couple — readily available alternatives. For every religious photographer who chooses to pass on the wedding, there will be scores of other photographers who won’t. The gay couple will not be denied the service by society because a few individuals strongly believe and act to protect their religious belief.
Finally, I think the courts will see this for what it is. Not an innocent gay couple looking to hire a florist, photographer or baker for their wedding. But a militant gay action, taking a easily solvable situation and turning it into a federal case in order to make a sweeping legal change at the expense individual religious expression and protected beliefs.