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Religious freedom or intolerance? Which is it, Hoosiers?

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Unless you live in a cave, by now you know that Indiana passed a law last week that allows businesses to discriminate against gays. The sound bites from the news are that bakeries won’t be obligated to sell wedding cakes, and florists won’t have to sell flowers to gay couples getting married.

Former NBA great Charles Barkley, Angie’s List, the NCAA and others have criticized the law for promoting discrimination, but Indiana Gov. Mike Pence stated Sunday there was much “misinformation and misunderstanding” surrounding the law. He does not see the law as promoting discrimination; instead, it’s all about protecting religious freedom. But why did he decline to answer, when asked, if the law permits business owners to discriminate against gays? (Note to the governor: dodging questions does not promote credibility.)

Which is it—discrimination against gays or the protection of religious freedom?  To answer that question, let’s look at the law.

The Religious Freedom Restoration Act is remarkably brief—just 11 paragraphs and perhaps a page and a half long, single spaced.  Paragraph 8 is the operative section and reads as follows:

(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.

(b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity 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.

The way the law is drafted, Gov. Pence can say with a straight face (sort of) that the law is not about discrimination. The law says nothing about gays or commerce or excluding gays in commerce.

The law is a little more subtle. It precludes government from taking legal action against someone who professes that his actions are based on the “exercise of religion.” In and of itself, limiting government action hardly seems objectionable, but here’s the rub: the law probably can be used to preclude a gay person from suing for discrimination if the discrimination is based on religious beliefs.

What’s the connection between the exercise of religion and refusing to conduct business with a gay person? To say that the law protects religious freedom suggests that religious freedom is under attack. Where’s the attack?

Let’s explore the sound bite we’ve heard on the news about the bakery and the gay wedding. Based on the “exercise of religion,” the hypothetical baker says he won’t sell to a gay man. What aspect of the baker’s religious freedom is threatened? He’s not being asked to condone or participate in the gay wedding. He’s not being asked to engage in gay sex. He’s being asked to sell a cake—that’s it.

If the baker refuses to sell the cake, is he improving his relationship with God?  Does he promote some greater good we typically associate with religion, or does the law give him the right to make a statement about and to insulate himself from others he sees as different?

On the other hand, if the baker sells the cake, how has his religious freedom or  relationship with God been threatened?

I was taken back by a photo of the bill signing ceremony. Flanking Gov. Pence on both sides are several monks and nuns. (Disclosure: I’m a cradle Catholic.) I assume these men and women are supporters of the law. How had their religious freedom been threatened?

The words “exercise of religion” have now become magic words for Hoosiers that protect divisive conduct. A lot of things get done in the name of religion that have nothing to do with it.

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Jack D’Aurora writes for considerthisbyjd.com

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Discussion

  1. Bruce Lackey  March 31, 2015

    Some Christians unfortunately look at gays as if they had leprosy, which is not exactly a WWJD position. Some gays are so insistent on tolerance that they become intolerant of other beliefs. Extremists on both sides need a time out..

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  2. James Zitesman  March 31, 2015

    Good job. Also in the news is the Bexley case of the wedding videographer who apparently does not want to video a gay wedding, so what about professionals such as attorneys or creative folks such as the wedding videographer? I have been told that I don’t have to accept every person as a client. So what about an attorney who would refuse to work for a client on the basis of religious or other belief? Personally, I have had several gay clients in the past and have found that their money works just like anyone else. In fact, I am thinking of adding something to my website about being inclusive. But that is just me, entrepreneur trying to make a living and pay for kids, one of which should be off the payroll but isn’t!

    Tough questions, so I leave it to you to provide the answers, but all you do is just provide more issues for discussion 😉

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  3. Robin Lorms  March 31, 2015

    Jack:

    As you recall, I am a bible believing Christian and try to operate under most ( yes, most ) of the Scriptural principles espoused by Jesus. I fail the test regularly but know when my conscience tells me something is not on target with the Author of my belief system. I cannot imagine Jesus refusing to sell a cake to someone who is gay. He would likely develop a relationship with that person (customer) and share some of the moral issues associated with being gay. NOT to engage with him in some fashion is not the Jesus I know. We have several gay members in our church and have come to know them as friends. Imagine Jesus denying the opportunity to talk with the woman at the well in Samaria because she is a Samaritan and He is a Jew. She would never have heard the gospel and neither would have the entire village from which she came.

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  4. John C. Calhoun  April 1, 2015

    Thoughtful but not conclusive blog. I am a cradle Catholic and product of a good Marianist Education (UD) but frequently find myself surrounded by those educated by Jesuits. I believe the crux of law and interpretation is the preservation of individual rights. In some kind of Solomonesque answer, how will it be explained if a Nazi leaning skinhead comes into a printing shop owned by an elderly Jewish lady and the skinhead proclaims that his religion is National Socialism and wants to make Happy Birthday Adolf cards replete with swastika’s? No right to refuse? Big Brother says no.
    I believe our constitution and our whole national essence is: the government shall make no law(s) that discriminate. I believe interpretation of law by many practitioners and jurists believe they have license to usurp some individual’s human rights in favor of other individuals who are more demonstrative. The U.S. was not founded on those principles. Oh yeah I believe the monks and nun’s are their trying to protect the solemnity and dignity of every human life (while loving the sinner you do not have to tolerate the sin). Solomon sure had it tough.

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  5. Donna Hubis  April 1, 2015

    We are in very sticky territory here, unfortunately. In this era of “political
    correctness”, it seems that no one is to be held responsible for lack of
    morality; in fact, it appears that there really aren’t any standards of morality
    left – because of course, this would force people to be responsible for their
    actions. Like Jack, I am a cradle Catholic – but I remember being taught to
    hate the sin, but love the sinner. I don’t believe that is the same thing as
    endorsing alternate lifestyles (i.e., gay and lesbian lifestyles.) As far as
    refusing to sell a wedding cake to gay couples, perhaps the baker isn’t refusing
    service out of discrimination, but because he feels it is a tacit endorsement of
    a lifestyle that is not condoned by his belief in the Bible. Why is it that
    people who choose a controversial lifestyle expect everyone to overlook their
    religious principles that are the core of their own way of life to make gays and
    lesbians feel accepted and comfortable? I personally think that if you choose
    this type of lifestyle, then you better expect to deal with the fallout.
    Protesting loudly about the fallout will not change anything, except make you
    become obnoxious in your insistence that you have a right to offend anyone with
    different opinion and principles than you. If I remember the Bible correctly,
    when Jesus stopped the adulterous woman (or prostitute, maybe?) from being
    stoned, he forgave her and did not punish her in any way. However, he DID say
    “Go and sin no more.” Perhaps the baker who wouldn’t sell the cake was
    basically saying the same thing, but in the only way he could express it.
    Think about that…….

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  6. miriam rafferty  April 9, 2015

    The law in question is not a remarkable law. The same language was passed federally by a bipartisan Congress in 1993 and signed by President Clinton. About 31 states have such a law. I think Indiana was just catching up. Governor Pence was reluctant to answer questions about gay discrimination because anything he may have said would have been taken out of context, knowing our media.

    Since 1990, when the Supreme Court radically reduced religious freedom protections, if a state does not have its own religious freedom guarantee, federal courts will not protect religious believers from the burdens imposed by most laws. The Indiana law is not a license to discriminate against people based on their sexual orientation. But it just might help businesses who don’t want to cooperate with contraception and abortion mandates, same sex marriage, or assisted suicide. I might add that this law protects Muslim women to wear a Burka to work, or a state corrections officer who is a Muslim to grow a beard. So, do we want to deny these folks protections because the law got swept up into a narrative of anti-gay bigotry?

    What really is alarming is the way the one-sided media has caused such a furor influencing such a virulent response. A news reporter asked the daughter of an owner of a pizza parlor about the law and discrimination. She simply stated with respect that her family’s business does not discriminate and will serve anyone who comes into the restaurant; however, they would not cater a gay wedding because as Christians they believe (based on biblical teachings), that marriage is between a man and a woman. She did not say that they hated gays or they would not serve them. That would be considered discrimination. The refusal to cater a wedding would be considered discretion since gay marriage is against their Christian teaching.

    The family has since been demonized, their business has been threatened and hysteria has been exhibited in their community and nationwide. What happened to freedom of speech? When it does not agree with certain agendas, Christians are now discriminated against? They had to close their doors because of the hateful calls and the threats made to burn their establishment down. When you cannot go to work due to fear, I would consider this comparable to a Nazi state!

    Stephen Crowder just recently went undercover and went into a bakery owned by Muslims and requested a cake for his gay wedding. They politely refused. He has published this piece on the internet. (IR review.com) Where is the rage and cry of discrimination against this baker? I am waiting with bated breath.

    I don’t think selling a cake for a gay wedding would threaten one’s relationship with God. But I do know one thing for sure. We are called as Christians to evangelize truths which have been taught to us by church and biblical teachings. Christians have the right to uphold their religious beliefs and freely manage their private businesses without interference. If you don’t believe what the store owner believes, you don’t have to shop there.

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