No One Is on the Moral High Ground Here

The outing of the son of Mississippi’s GOP governor, after he signed a religious liberty bill, raises the usual issues. If the son of Gov. Phil Bryant wanted to make his sexual orientation public, he would have done so. His outing (assuming he is gay) is an attempt to embarrass the governor.

It’s at best a ham-fisted attempt to “educate” the benighted masses that gays are in all families. To the extent anyone pays attention, it will further polarize, with defenders of the Mississippi law seeing it as an exceedingly ugly tactic by opponents and thus feeling reinforced in their beliefs.

Personally, I believe it’s wrong for small business owners with religious convictions against same-sex marriage to be forced to provide expressive services to same-sex weddings (as they are in states and localities with LGBT anti-discrimination measures that apply to “public accommodations”). But the Mississippi law is in many respects “problematic” (as progressives like to label things they want to suppress) and quite probably unconstitutional. That’s because, among other reasons, it’s a mishmash of agenda items, including an unenforceable declaration that “marriage is or should be recognized as the union of one man and one woman [and that] sexual relations are properly reserved to such a marriage.”

The “religious liberty” battle now roiling through the states could have been avoided with a bit of common sense, such as an acceptance of religious exemptions in LGBT anti-discrimination matters. But progressive activists have made it clear they will tolerate no dissent on this.

I wish that the federal Religious Freedom Restoration Act, passed in 1993 with support from many Democrats who would now be required to strenuously oppose it, applied to states and localities. The law holds that legislation burdening the exercise of religion on behalf of a compelling government interest must be the least restrictive way in which to further the government interest. But in 1997 the U.S. Supreme Court held that RFRA could only be applied to federal legislation.

If that were not the case, it would have been interesting to see how RFRA might have played out in religious liberty disputes based on state and local anti-discrimination laws. (Subsequently, attempts to pass statewide RFRAs based on the federal model have been treated by opponents as the second coming of Jim Crow.)

14 Comments for “No One Is on the Moral High Ground Here”

  1. posted by Tom Scharbach on

    I wish that the federal Religious Freedom Restoration Act, passed in 1993 with support from many Democrats who would now be required to strenuously oppose it, applied to states and localities. The law holds that legislation burdening the exercise of religion on behalf of a compelling government interest must be the least restrictive way in which to further the government interest. But in 1997 the U.S. Supreme Court held that RFRA could only be applied to federal legislation.

    A quiet remainder about the history of the cases and the statutes:

    Sherbert v. Verner (1963, Justice Brennan) held that the government may enact a law imposing a “substantially burden” (that is, require an individual to forego a religious practice, whether by imposing a penalty or withholding a benefit) on an individual’s “free exercise” if and only if (1) the government has a “compelling interest” that justifies the infringement, and (2) the law is “narrowly tailored” (that is, no alternative form of regulation can avoid the infringement) the government’s interest.

    Yoder v. Wisconsin (1972, unanimous), extended the Sherbert test to laws that were “neutral on its face”, and clarified the “substantial burden” leg of the Sherbert test, requiring evidence of true and objective religious practices, instead of an individual creating personal standards on a whim.

    Employment Division v. Smith (1990, Justice Scalia) narrowed the “compelling interest” test, holding that no such interest was required regarding a neutral law of general applicability that happens to affect a religious practice, as opposed to a law that targets a particular religious practice (which continues to require a “compelling interest”).

    In direct response to Employment Division, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, seeking to restore the “compelling interest” test:

    (a) Findings The Congress finds that:

    (1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
    (2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
    (3) governments should not substantially burden religious exercise without compelling justification;
    (4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
    (5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

    (b) Purposes The purposes of this chapter are:

    (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
    (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

    The operative language of the federal RFRA essentially restates the Sherbert/Yoder test: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except [that] Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and
    (2) is the least restrictive means of furthering that compelling governmental interest.”

    City of Boerne v. Flores (1997, Justice Kennedy), struck down the provisions of RFRA that forced state and local governments to provide protections exceeding those required by Employment Division, on the grounds that while the Congress could enforce the Supreme Court’s interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities. Accordingly, state and local government need not demonstrate a “compelling interest” with respect to laws of general application unless state law so provides, but the federal government must do so.

    A number of states — but not all — enacted RFRA-like laws reinstating the “compelling interest” test in those states in the aftermath of the Boerne decision.

    So that was the state of the law on “religious freedom”, stated in broad terms, when Obergefell was decided in June 2015.

    A number of “baker, florist and photographer” cases have been heard in state and federal court, at various levels, in recent years. The cases have applied the “compelling interest” test, or not, depending on the status of RFRA-clone laws of the state, but in none of the cases have the complaining business owners been able to establish that the public accommodations laws in question created a “substantial burden” on the business owner’s “free exercise” of religion.

    I quietly note that there is a difference between laws imposing a “burden” and laws imposing a “substantial burden”. Sleight-of-hand, conflating “burden” with “substantial burden”, as you do in the quoted excerpt, plays fast and lose with the Sherbert/Yoder constitutional standard. RFRA did not — repeat not — change the “substantial burden” test imposed by Sherbert/Yoder, although the First Amendment Defense Act (FADA) currently proposed in Congress does change the constitutional standard:

    Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

    And, of course, FADA does so only in the case of religious opposition to same-sex marriage. It changes the standard, of course, because the “baker, florist and photographer” cases cannot prevail in court unless the “substantial burden” constitutional bar is lowered to the point of non-existence.

    Personally, I believe it’s wrong for small business owners with religious convictions against same-sex marriage to be forced to provide expressive services to same-sex weddings.

    Well, push for that, then, along with your conservative Christian allies, but be at least minimally honest about what you are doing — singling out same-sex marriages as a unique case requiring state-sanctioned discrimination and materially lowering the Sherbert/Yoder constitutional standard from “substantial burden” to mere “burden”, a legal bar so so that a centipede could vault it, in order to achieve that end.

    If that were not the case, it would have been interesting to see how RFRA might have played out in religious liberty disputes based on state and local anti-discrimination laws. (Subsequently, attempts to pass statewide RFRAs based on the federal model have been treated by opponents as the second coming of Jim Crow.)

    I would invite you to read the actual language of the proposed bills. The “substantial burden” test has an odd way of going missing in the proposed bills, replaced by “burden”.

    • posted by Tom Scharbach on

      A formatting note. I neglected to put the operative language of RFRA in blockquotes. Here’s a correction for easier reading:

      The operative language of the federal RFRA essentially restates the Sherbert/Yoder test:

      “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except [that] Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and
      (2) is the least restrictive means of furthering that compelling governmental interest.”

  2. posted by Lori Heine on

    I am no attorney, so my reasoning can be based on no deep knowledge of legal precedent. I am armed merely with common sense.

    If a narrow carve-out is to be permitted for a certain subsection of Christianity, regarding only one particular church teaching (moreover one on which Christians themselves are no longer united), then it seems to me that this is a violation of the non-establishment clause.

    Congress would, indeed, be establishing a preferred religious viewpoint. How is that in any way defensible in the U.S.?

    The very reason for the social conservative temper-tantrums, and their attempts to slam-dunk their particular views on this one issue, is that now those views are being challenged and embattled even in the churches. And yes, even in conservative churches–because LGBT people come from every part of the country and every religious tradition, no matter how conservative.

    IGF keeps restating the same things over and over. It is ignoring a large part of the real story.

    • posted by Tom Scharbach on

      If a narrow carve-out is to be permitted for a certain subsection of Christianity, regarding only one particular church teaching (moreover one on which Christians themselves are no longer united), then it seems to me that this is a violation of the non-establishment clause. Congress would, indeed, be establishing a preferred religious viewpoint. How is that in any way defensible in the U.S.?

      It isn’t defensible, and that is one of the reasons that the current spate of “religious freedom” laws will hit a rocky constitutional shore in future court cases.

      Laws that pick and choose between substantially similar religious objections to marriages (e.g. religious objection the same-sex marriage and religious objection to remarriage after divorce), deeming one worthy of protection and the others not, without providing an objective, non-religious rationale clearly related to the common good for doing so, are almost certain to be ruled unconstitutional.

    • posted by Houndentenor on

      Stephen is obviously avoiding the elephants in the room during the GOP primaries. Can we blame him?

  3. posted by Tom Scharbach on

    I wish that the federal Religious Freedom Restoration Act, passed in 1993 with support from many Democrats who would now be required to strenuously oppose it, applied to states and localities. The law holds that legislation burdening the exercise of religion on behalf of a compelling government interest must be the least restrictive way in which to further the government interest. But in 1997 the U.S. Supreme Court held that RFRA could only be applied to federal legislation.

    I quietly note that RFRA doesn’t solve the problem for conservative Christians, because RFRA, like Sherbert/Yoder, requires that legislation must pose a “substantial burden” on religious practice before the “compelling interest” and “least restrictive means” tests are invoked.

    Public accommodations laws have withstood the test in cases to date because it is ludicrous on its face to assert that providing flowers or a cake for a wedding imposes a substantial burden on religious practice.

    That’s why current “RFRA” proposed legislation (e.g. Hawaii HB 1160 — “State action shall not burden any person’s right to exercise religion …” — and Iowa HF 2200 — “State action shall not burden a person’s free exercise of religion …”) follow templates that downgrade the “substantial burden” test to a mere “burden” test, allowing any burden on religious practice, no matter how slight or insignificant or immaterial, to trigger the “compelling interest” and “least restrictive means” tests.

    I suppose that legislation rendering the “substantial burden” test meaningless serves political goals, but it doesn’t serve the public interest. Just play the mere “burden” tape to the end, as it is said, and see if the result is something that serves the public good.

  4. posted by Tom Jefferson 3rd on

    I generally think that forced outings are a mistake. Especially, when you can’t bring along an umbrella.

  5. posted by Mike in Houston on

    Stephen is desperately trying to connect the dots — and fails again.

    I’m sorry that folks in the LGBT community don’t really want — or feel the need — to adopt the kind of supine pose of your “common sense” proposal requires: that we accept unequal treatment in the public square because you want the government to value one small segment of religious doctrine over all others.

    That you keep beating this unconstitutional dead horse — when not trying to blame transgender folks for the bigotry on the right of the spectrum or conflating some kerfuffle on a college campus with majority progressive thinking — is more than absurd. Go outside & howl at the moon for a change.

  6. posted by JohnInCA on

    No court has ever found that the Federal RFRA gave public accommodations a license to deny protected customers. So no, even if the RFRA did apply to states it would continue to be irrelevant. Which is why these states RFRA laws have, in every single recent case, been broader then the federal one. Because they *do* want to give public accommodations a license to deny protected customers.

    Further, any such “because God” exemption that applies to gay people, but not to other protected classes? Is going to go down in flames.

    • posted by Mike in Houston on

      The current federal RFRA is pretty innocuous… and Stephen would be bitching about federal overreach if they were to be extended in application to states. Because: Jeebus. (Stephen hasn’t met a “religious right to discriminate against LGBT people” that he won’t spin as a righteous reaction to evil progressives oppression of Christian Expressive Services (Sundays & Wednesdays after Bible Study in Fellowship Hall).

      Now that a Federal Court of Appeals has just upheld the rights of transgender students to use the bathroom matching their gender identity under Title IX, I can’t wait to see what evil progressive™ plot will be blamed for that.

  7. posted by Tom Scharbach on

    I think I’ll start copyrighting Christian cake designs and make a little money off the “expressive services” fad. If anyone challenges my copyrights, I’ll go into ChristianMartyr™ mode and milk the clueless.

    As far as I know, copyrights aren’t available for floral arrangements, though, more’s the pity. A growth industry nipped in the bud.

    • posted by tom jefferson 3rd on

      A Governor “loves” his son, but also loves his political career. Hmmmm.

  8. posted by Houndentenor on

    Refusing to provide services to gay or trans people was already legal in Mississippi, so why pass a law to reinforce that? Oh yeah, election year pandering by Republicans to the bigot wing of the party.

  9. posted by Jorge on

    The outing of the son of Mississippi’s GOP governor, after he signed a religious liberty bill, raises the usual issues.

    Sorry, but in this case I disagree. The article is reporting people who allege that it is an open secret. This would only be acceptable to report if it were, in fact, an open secret, and only in a tone consistent with it being an open secret. In this case, the article provides evidence in the form of testimony that he was the victim of a hate crime–which unfortunately is something that makes your sexual orientation an open secret. That is exactly the right way to handle such a thing.

    Most outing is in the form of “gotcha” tactics and open harassment toward people who are conservative or Republican. This isn’t quite the same thing.

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