Category: Religious Liberty

scaliaOver the past hundred years few judges have been able to match the wit, wisdom, and intellectual rigor of Supreme Court Justice Antonin Scalia. During his thirty year career he has been an indefatigable champion of originalism (a principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment) and a vociferous critic of the slippery “living constitution” school of jurisprudence. When future historians assess his career Scalia will be viewed as one of the most thoughtful, principled, and important jurists of his era.

But even a legal genius can produce a disastrous opinion, and Scalia delivered his worst twenty-five years ago this week in Employment Division v. Smith. As Michael Stokes Paulsen explains, this ruling has “proven to be one of the most devastatingly long-term harmful Supreme Court constitutional decisions of the past half century.”
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Protect-Religious-Freedom-Rally-SignThe recent pushback against state-level Religious Freedom Restoration Acts has sent a signal that, as Utah legislator Stuart Adams say, “the landscape of protecting religious liberty has changed. Permanently.” Many Christians are drawing similar conclusions about the cause of religious liberty being all but lost. I think this view is premature and that, to paraphrase John Paul Jones, we have not yet begun to fight.

But our arguments aren’t for religious liberty certainly aren’t as persuasive as they should be. The reason, as Jennifer Roback Morse explains, is that such arguments are not “compelling enough to induce our fellow citizens to sacrifice something they value, namely, sexual liberty.” Morse identifies three reasons for this:
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indiana-religiousfreedomOver the past few weeks the American media has revealed two important truths: (1) Religious freedom has become a surprisingly divisive and controversial topic, and (2) very few people understand what is meant by the term “religious freedom.”

Is religious freedom merely the liberty to attend worship services? Is the freedom limited to internal beliefs or does it also apply to actions taken in the public square? Should religious freedom ever trump other societal goods?

Joseph Backholm of the Family Policy Institute of Washington examines those questions and explains what religious freedom entails:
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Big-Business-and-CongressDuring Holy Week the CEOs of two quintessential Red State and Blue State companies—Wal-Mart and Apple—joined together to publicly chastise state legislatures for allowing citizens to have too much religious freedom. Apple CEO Tim Cook opposed the Religious Freedom Restoration Act (RFRA) passed in Indiana while Wal-Mart CEO Doug McMillon opposed similar legislation in Arkansas. The heads of two companies that do business with countries that commit actual human rights violations on a daily basis were concerned about states protecting religious believers who might hypothetically—someday, somehow—act in a way that could hurt someone’s feelings.

Despite being highly intelligent and competent executives, both men showed a complete ignorance about what RFRA laws are and how they have been used in the past. But even if they had bothered to gather the facts before commenting they would have likely took the same stance. Large corporations have historically supported liberal causes (or in this case, an illiberal causes), even when they conflict with the values of their most prized customers.

Since Big Business are rarely even economically conservative (e.g., most despise true free markets) it’s not surprising they show a similar disdain for social conservative causes (while it wasn’t always the case, religious freedom is now a cause championed almost exclusively by social conservatives). Why then do we conservatives always rush to defend Big Business? As Matt K. Lewis asks, “Why does the right always go to the mat for big corporations who could give a damn about conservative values?”
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RefuseServiceSignIn today’s Acton Commentary, “The Logic of Economic Discrimination,” I take up a small slice of the larger controversy and discussion surrounding religious liberty laws like the one passed recently in Indiana. My point, drawing out some of the implications of observations made by others, including Ryan Anderson and Shikha Dalmia, is that anti-discrimination boycotts depend on discrimination. Or as Dalmia puts it, “what is deeply ironic is that corporate America was able to wield its right not to do business (and boycott Indiana) by circumscribing the same right of Indiana businesses.”

Now there are lots of other angles and significant points to explore surrounding this enormously complex and important debate. Many have criticized the hypocrisy of corporations like Apple for doing business in places like China and Saudi Arabia even while they grandstand against Indiana. Others are now pointing to the actions of many in Silicon Valley, which despite the proclamations of support for social justice, have actually created huge inequalities. Tech centers like Silicon Valley are great, it seems, unless you are a woman, have a family, or are a blue-collar worker.

Indiana politicians, under massive scrutiny, have since moved to “clarify” the RFRA law that was passed, a move that has mollified some but not others. From the beginning, these conversations about religious liberty and economic rights have, in my view, insufficiently included sensitivity to considerations like freedom of association. Hopefully the larger context and interactions of contracts and rights, not merely “religious liberty” narrowly defined, can help broaden and mature the conversation.
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David Cameron, Prime Minister of the United Kingdom, had an Easter message for the British people. It is worth sharing.

??????????????????????????Amidst the hubbub surrounding Indiana’s Religious Freedom Restoration Act, the owners of Memories Pizza, a local family-owned restaurant, have been the first to bear the wrath of the latest conformity mob.

We knew they’d come, of course. “They” being fresh off the sport of strong-arming boutique bakeries and shuttering the shop doors of grandmother florists (all in the name of “social justice,” mind you).

The outrage is rather predictable these days, and not just on issues as hot and contentious as this. A company does something we don’t like and we respond not through peaceful discourse or by taking our services elsewhere, but through direct abuse and assault on the party in question (self-righteous tweets included). When Patton Oswalt points out these instincts in defense of an anti-semitic comic, the mob may temper its tone for a season. But alas, there are small businesses to bully, and this is about sexuality, an idol well worth the blood. (more…)

cc-twitterThere is something about Indiana’s new religious freedom protection law that is causing otherwise reasonable people to lose their minds. As Elise Hilton pointed out earlier today, everyone from presumptive presidential candidates (Hillary Clinton) to corporate CEOS (Apple’s Tim Cook) to your ill-informed friends on social media have been claiming the law allows discrimination against homosexuals. It does not. (In most parts of the country, discrimination based on sexual orientation is legal—and always has been.)

Elise produced a helpful explainer with links to several articles that explain the reality of this legislation. But because there is so much disinformation, we need as much correction as possible. Here then are seven more articles you should read to get up to speed on Religious Freedom Restoration Acts:

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RFRA1Last week, Indiana Governor Mike Pence (R) signed his state’s Religious Freedom Restoration Act. Social media went a bit, well, bonkers. Hillary Clinton tweeted, “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love #LGBT.” The CEO of SalesForce, headquartered in Indiana, says they will pull out. Tim Cook, the chief executive of Apple, has called religious freedom laws “dangerous” and likens them to Jim Crow laws.

What’s all of this about?

First, the federal Religious Freedom Restoration Act (RFRA) was signed by then-President Bill Clinton in 1993. This act re-instated what is known as the Sherbert Act, in which the Supreme Court:

…set out a three-prong test for courts to use in determining whether the government has violated an individual’s constitutionally-protected right to the free exercise of religion. (more…)

indiana-religiousfreedomThere is something about religious freedom that causes some folks, including many journalists, to lose all sense of reason and objectivity. Last year Mollie Hemingway wrote a blistering critique of reporting on the issue in which she said, “we have a press that loathes and works actively to suppress this religious liberty, as confident in being on the ‘right side of history’ as they are ignorant of natural rights, history, religion and basic civility.”

The recent religious freedom legislation in Indiana has proved Hemingway’s point. In an attempt to clear up some of the number of “misconceptions and unwarranted concerns about the proposal,” Notre Dame law professor Richard Garnett explains,
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