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Carroll County Times Opinion

No freedom to discriminate

What happens when deeply-held belief systems run into culture change? Sometimes, over time, people change their views.

It took the Catholic Church more than 200 years to accept the idea that the earth revolved around the sun. Social conservatives are about as resistant to change as the medieval Church when it comes to modifying their outdated ideas about gay rights.

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The Religious Freedom Restoration Act of 1993 declared that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." The RFRA was designed to allow Native Americans whose religious practices include taking peyote to do so, even though that drug is illegal; also, the land on which they perform certain rituals is sacred to them, and some earlier court decisions would have allowed the Forest Service to build roads through those sites. Essentially, RFRA requires there to be a "compelling government interest" before a religious practice can be interfered with. In 1997, the Supreme Court ruled that RFRA applied only to the federal government. Since then, 20 states passed some version of the RFRA to apply within their borders.

On March 26, Indiana Gov. Mike Pence paid off his social conservative base, signing into law that state's version of RFRA. Although the two laws share the same name, the similarity stops there. The federal law specifically precludes government from acting in a way that interferes with a person's engaging in his or her religious activities unless a compelling federal government interest cannot be met in any other way. The Indiana law, on the other hand, builds on the Supreme Court's disastrous Hobby Lobby ruling that public corporations have religion.

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The original version of the law states that personal religious beliefs may be used to allow individuals and businesses operating publicly to justify exempting themselves from obeying anti-discrimination laws. The law was targeted at giving an out to people who don't want their businesses to provide service to gays. Reaction to the law was swift: several major corporations, among them Apple and Eli Lilly, were joined by the NCAA and this year's Final Four team coaches in condemning it. The band Wilco, along with Megan Mullally and Nick Offerman cancelled scheduled performances, and Connecticut Gov. Daniel Malloy banned state government travel to Indiana.

This ferocious response forced Indiana to backtrack. On April 2, Pence signed an amended version, which now specifically does not grant permission for a provider to refuse to provide services on the basis of "race, color, religious ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States Military Service." The law as amended does not "establish a defense for refusal to provide services to" those same groups. In effect, the amended version exempts only religious organizations and the ministry from public accommodations. So Indiana's churches are still free to marry gay couples or not, but if that baker sells wedding cakes publicly, his belief that homosexuality is sinful doesn't give him the right to refuse service. I fear this debate will continue well past this summer, when the Supreme Court rules on gay marriage.

The Arkansas version of RFRA was also caught in the backlash to Indiana's, and Gov. Asa Hutchinson opted to ask his state legislature to recall their bill and bring it in line with the federal law. This spared him much of the grief that Pence felt. But neither state has laws to protect employees from being fired from their jobs strictly on the basis of sexual orientation. Even if the Supreme Court rules that all states must recognize gay marriage, there will continue to be legislative battles over LGBT rights.

Superficially, the Indiana RFRA issue looks like a clash between religious freedom and universal civil rights. It is not. Religious freedom is not infringed by tolerance. Our nation is founded on the principle that every citizen is privileged to enjoy the same rights and freedoms. To deny those rights to a person because of his or her race, religion, sexual orientation or gender identity is not just un-American. It's immoral.

Mitch Edelman writes from Finksburg. His column appears every second Tuesday. Email him at mjemath@gmail.com.


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