Religious Freedom Restoration Acts Attempt to Legitimate Descrimination

(Spectrumbot) #1

Indiana's recent passsage of the Religious Freedom Restoration Act, which provides that a state or local government action may not substantially burden a person's right to the exercise of religion—particularly, though not exclusively applied to providing services to same-sex couples—has prompted national debate on whether the legislation enshrines unconstitutional discrimination and what rights individuals and businesses still have. In this Spectrum Roundtable, Pastor David Hamstra and Professor Aubyn Fulton discuss the ramifications of the legislation and propose ways forward, particularly for people of faith. This article is a response to David Hamstra's "A Framework for Balancing Competing Concerns: RFRAs and Adventists in the Public Square." -Ed.

I appreciate David Hamstra’s attempt to provide a reasoned and balanced analysis of the problems posed by recent state laws like Indiana’s SB 101 (so-called “Religious Freedom Restoration Acts” or RFRAs). Unfortunately, the reasonable tone belies several misleading characterizations and unacknowledged assumptions. SB 101 is an attempt to legitimate discrimination by business operators against a particular group of people for religious reasons, and to radically re-define how the free exercise clause of the first amendment has been understood for more than two centuries. Whether this establishment of a particular set of religious values is a good or bad thing is worthy of debate, but it should not be concealed beneath a faux argument about balancing equal and competing rights, or protecting freedom of religion.

The crux of the argument made by most RFRA advocates, including Mr. Hamstra, is that recent developments in the law and the popular culture have eroded the first amendment protections to the free exercise of religion, thus these need to be reinforced. Once legally reinforced, state courts will be entrusted to find the proper balance whenever the newly enhanced religious right bumps up against an equal protection right asserted by an individual. Without comment, or acknowledgement advocates like Mr. Hamstra write, as if everyone obviously agrees, that when a baker sells a cake to be consumed at a gay wedding it is a “meaningful involvement in gay weddings” that clearly infringes on the free exercise of religion. The problem is not that I disagree with Mr. Hamstra (though of course I do, and strongly) – the problem is that the conclusion he is so quietly assuming here is *the* main point in contention (can selling a wedding cake by a for-profit business enterprise be legitimately understood as part of the exercise of religion). In the old days we used to call this begging the question.

What is disingenuous in the argument is pretending that the so-called RFRA debate sparked in Indiana is about how to balance competing rights (to free exercise of religion on the one hand and equal protection under the law on the other). This is simply not true. The debate is about whether the traditional American right to the individual free exercise of religion (both in the private and the public spheres) should for the first time be radically transformed by giving it to corporations and other for-profit enterprises. The fact that the true nature of the debate is concealed by so many of its advocates is a clue that a majority of Americans would oppose such a radical change.

The definition and scope of the free exercise clause to the first amendment has been vigorously debated for more than a century, and is still not quite settled. Currently, a conservative Christian baker’s claim that selling a cake that will be served at a reception celebrating a gay wedding is a threat to his free exercise of religion is not consistent with operative Supreme Court rulings. Indeed, the reason Indiana needed to pass SB 101 is that the federal version of RFRA specifically only protects individuals from being forced to engage in behavior like this (the baker obviously could not be forced to attend the gay wedding or the reception, nor could the baker’s church be forced to host those ceremonies, nor could the baker’s pastor be forced to officiate at those ceremonies). SB 101 was not needed, even a little bit, to continue those individual free exercise protections. Furthermore, our sensitive baker could not be forced to remove signs from his place of business expressing his opposition to gay marriage, or his support for his particular interpretations of relevant Biblical passages. Our baker could march in protests against marriage equality, campaign against candidates that support marriage equality, and contribute money to organizations trying to end marriage equality. The only reason SB 101 was needed was to make a profound expansion of the zone of the claim of religious privilege, extending the protection to for-profit business enterprises, not just to individuals. I believe such an expansion is unconstitutional, immoral and damaging; but that is part of a debate that we are now engaged in, and we shall see how it comes out. But it is dishonest to pretend that this is not what the current debate is actually about.

Mr. Hofstra suggests that SB 101 is not discriminatory because it protects businesses’ right to deny service to people who engage in particular kinds of behavior (gay weddings), but not to people based on their membership in a particular group (gay people). But this is sophistry. The behavior in question is the wedding; the group membership in question is homosexual. The baker is free to say that he does not make wedding cakes of any kind, but it is discrimination pure and simple if he says he makes wedding cakes for straight people who are getting married, but not for LGBT people who are getting married. The equivalent argument would be if a white racist who ran a lunch counter back in the day claimed that denying service to black customers was not discrimination because he was not targeting black people (group membership) but black people eating (a particular activity).

One of the more serious weaknesses in the arguments of RFRA advocates is their studied avoidance of the damage and harm done to LGBT people by discriminatory business practices. Even when free exercise is properly restricted to its traditional, individual context, the harm done by any claimed religious exercise must be considered and carefully weighed. The absence of this consideration is particularly notable in Mr. Hofstra’s article, since it claims to be primarily interested in balancing competing claims, which always required a consideration of harm. Assuming that such harm is limited merely to the trivial inconvenience of having to drive a few blocks to the next bakery is insulting, given the context of a long history of legal and social oppression suffered by LGBT people, resulting, for example, in increased risk for suicide and other forms of self-harm. The implication that LGBT people are simply free to go to a gay-friendly baker invokes ugly and shameful echoes of earlier claims of “separate but equal” as an acceptable solution to attempts to deny equal protection to particular groups of Americans. Obviously I am not claiming that anyone is going to want to suicide because they have to go down the block to a different baker. I am claiming that reinforcing the message that LGBT people are second class citizens whose right to equal protection under the law is unrecognized can contribute to a wide range of damaging consequences, including those that increase the risk of suicide.

Another problem with Mr. Hofstra’s essay is its assumption of a disinterested attitude regarding any specific outcome – as if the argument for SB 101 is above the fray of any of the competing ideological camps. On the contrary, the record is clear that SB 101 was specifically drafted to try to end or at least curtail gay marriage in Indiana. The politicians who voted for or signed SB 101 are on record as opposing gay marriage, and of looking for ways to interfere with it. The Indiana governor invited officials from conservative religious advocacy groups that had long tried to find a way to ban gay marriage to the bill’s private signing ceremony. Attempts to portray SB 101 as an ideologically neutral attempt to find a fair balance between competing rights to the contrary, it is clear that SB 101 was conceived and executed as an attempt to stage an end run around the sting of advances for marriage equality and LGBT rights in this country over the last decade or so.

The obvious strategy being adopted by RFRA advocates is to change the debate from “do LGBT Americans deserve equal protection under the law?” to “do American’s deserve to be able to exercise their religion freely and without undue interference?” Changing the subject is an old and often successful political strategy, and I don’t begrudge those who want to restrict the rights of LGBT people the attempt – especially since over the last decade the tide of public opinion has change so dramatically in the direction of “yes” to the first question. Moreover, I am a very strong proponent of religious liberty, and would take a second place to nobody in defending real free exercise of religion. But when a religious group seeks government sanction to impose its particular religious views on public commerce, that is not an exercise of the first amendment right to freedom of religion, it is in fact the opposite – an attempt to covertly establish one particular set of religious values in the public square. The same argument could easily be used to justify denial of equal protection in the for-profit exchange of goods and services to people engaged in interracial marriages, or to Jews by Christians, Muslims by Jews, Catholics by Adventists, or Adventists by Apostate Protestants. Adventists more than anyone else should be alarmed by this.

Aubyn Fulton, PhD, is Professor of Psychology with an emphasis on Clinical Psychology at Pacific Union College.

This is a companion discussion topic for the original entry at

(Elaine Nelson) #2

If I were judging this debate, Dr. Fulton you won completely! You far more adequately explained exactly how the bill would affect both those in favor and those against.

This has a ring of the SCOTUS ruling that corporations are people. When for-profit businesses can operate and have all the freedoms and liberties of an individual, it has eroded the First Amendment. No business for profit can claim to be “an establishment of religion” which applies only to religious non-profit institutions.

(George Tichy) #3

Based on what it is, RFRA is an oxymoron.

(Kade Wilkinson) #4

Indeed. This is known as the right of free association.

(Aubyn Fulton) #5

Hi Kade…
I have had a few people make similar responses to me regarding this point. If I may I would just like to take the opportunity to try to better understand it. Are you really saying that you think a Christian shop keeper should be able to say that he refuses to serve Jews (assuming he provided a claim that serving that Jewish person would make him feel as if he were participating in something that violated his religious values)? Would you feel the same if the person being denied service was African-American, or a woman?

(Kade Wilkinson) #6



Here’s why. If the Christian baker has no right to deny service to the homosexual who wants a wedding cake, than the Black dry-cleaner has no right to deny service to the local Klansman who wants his robe cleaned, and the Jewish tattoo artist has no right to deny service to the neo-nazi who wants “14/88” and a swastika tattooed on his chest. All of these are for-profit exchanges. Equal protection means everyone is protected, not just the Christian and the homosexual, but also the Klansman, and the neo-nazi.

The right of free association holds that I do not have to do business with anyone I don’t care to do business with. If I don’t care to do business with Klansman, I can refuse to do business with Klansmen. If I don’t care to do business with Christians, I can refuse to do business with Christians. And if I don’t care to do business with homosexuals, I can refuse to do business with homosexuals. I don’t have to buy from anyone I don’t wish to, and I don’t have to sell to anyone I don’t wish to sell to. “Equal protection” forces everyone to do business with everyone. Now the black dry cleaners can no longer refuse to clean the local Klansmen’s robes. Or, to make it more analogous, without the right of free association, a gay baker has no right to refuse an order of 12 cakes emblazoned with Lev 18:22 for a “Biblical sexuality conference.”

(George Tichy) #7

If we, as a society, represented by the government we elected, issue a business license to an interested party, the business MUST serve all people equally. This has nothing to do with free association or religion. It’s not ‘free’ in any sense, because services or goods will be paid for.

People who discriminate should abstain from offering services they can’t deliver because of their …“faith” - in this case, faith in discrimination. Cancel their licenses!

(Aubyn Fulton) #8

I see. Thanks - that is a consistent position. I think it is mistaken, but I appreciate the consistency. I think it is pretty clear that it is not acceptable to deny service based on race or religion in this country (and I would also say it would be wrong to deny dry cleaning to the Klansman).

(Kade Wilkinson) #9

I see. Then you naturally also feel that a Jewish tattoo artist must be willing to tattoo “14/88” and a swastika on anyone that wishes to pay for that service, and a black dry-cleaner must be willing to wash the robes of the local KKK members if they drop them off after a rally?

(Kade Wilkinson) #10

I fear for the irreligious if the right of free association/ right of free practice of religion is dismantled any further in this country.

Because I fear those who want to change the rules don’t realize that the rules are there for their protection.

Because this is the kind of response that can be expected:

Religious liberty in America is dead. Well and good. That was a fatal mistake by the other side, because now that they don't respect our religious liberty, we have no reason or responsibility to respect theirs. Now it's just a raw power struggle and we have the numbers, we have the indomitable will of the martyrs, and we have the certain knowledge of God on our side.

They have nothing but the carnal desires to which they are enslaved and the Prince of this fallen world, who has already been defeated by our Lord and Savior, Jesus Christ. Their world is post-Christian, post-rational, post-modern, post-morality, and post-law. It is absolutely doomed to failure of every kind, beginning with demographics.

So stop cowering. Stop hiding in the closet. Stop trying to play by outdated rules that are no longer in effect. They imposed the new rules on us, now let’s prove that we can play much better by them. What they don’t realize is that those rules were in place for THEIR protection, not for ours. It’s time to teach them the value and importance of religious liberty again.

We are not given a spirit of fear. We are the sons and daughters of the Crusades and of the Inquisitions, institutions so terrible that they strike terror in human hearts nearly one thousand years later. We are the heirs of Christendom. They cannot defeat us and they cannot defeat our Lord. Augustus and the pagan emperors of Rome failed. The Ottoman emperors failed. The French Revolutionaries failed. The Communist killers of Spain, the Soviet Union, and China failed. The post-Christian seculars of the latter-day USA will fail too.

Edit: quote source:

(Dan Hamstra) #11

While I am related to the “other” author, my views and his should not be confused as being the same.

I’d like to frame the debate with a different scenario.

If a Roman Catholic ran a sole proprietorship or family owned LLC type of pharmacy, would he be allowed to decline to fulfill prescriptions for birth control or “day after” pills?

Should he sell them to everyone else but not Catholics?

Should he be protected and not forced to fill a prescription that is in conflict with his religious convictions?

Should he be forced to sell them (bake the cake and sell it)? After all, he doesn’t know if they’ll actually be used as a form of contraception, some women just want to regulate their menstrual cycle and he’s certainly not going to be there when they are being used (he’s not being forced to attend the LGBT wedding).

Would RFRA type legislations give him any more protections to deny fulfilling these types of prescriptions?

Would it make a difference if instead it was a publicly traded company? (admittedly, not likely but only one step removed from businesses like Hobby Lobby or Chik-fil-A)

I think so much of these subtleties that sound almost absurd in the context of a pharmacist who doesn’t want to sell birth control get lost in the poster child scenario of those mean bigoted Christians vs. the LGBT cake shoppers. The reality of it is that most Christian bakers (Adventist sole proprietorships included) would gladly sell an LGBT couple a cake because either:

  1. They want the money
  2. They don’t understand LGBT people but aren’t so invested in the controversy that they really care
  3. They want the money
  4. It’s what Jesus would (probably) do

The media hype is so focused on this scenario that it’s positively ludicrous. Would you like to know what’s more likely? Google “crowder dearborn bakery” and see. All the same arguments and subtleties will still apply but it’s a different group that’s less politically correct to attack that will take cover under RFRAs. I think they deserve as much religious freedom as anyone else but let’s not kid ourselves, for most (Adventist) Christians in the US (and Canada), selling an LGBT wedding cake is a “how would you like to pay” encounter.

I think religious freedom and the loss thereof in the US is a huge issue and I appreciate the dialog/debate but I think the supercharged nature of making this an “LGBT thing” takes away from the underlying issue of “can a person live their lives both in private and in the workplace in a way that’s consistent with their religious beliefs”? I think the answer (if they’re self employed or part of a non-public company with shared values) is a resounding “yes”. Were I a baker, I would gladly sell to whomever because of “option 4” above but I would rigorously defend the right of any Christian (or Muslim) baker to deny service if they thought it inconsistent with their religious beliefs. You may say “but that’s the same reasoning segregationists used” and I say “hogwash, it’s a totally different era”. There may be some towns in the US where there’s only one place to get a certain product or service and the person shopping might be inconvenienced by being denied a service but in this day and age, there are very few things where the consumer doesn’t have the ultimate advantage, they can go anywhere and the marketing people (or a political party) will swoop in and say “you poor thing, come join us over here”.

Don’t misunderstand me, I’m not saying prejudice and bigotry don’t exist or that some will not be inconvenienced by letting people live their lives in accordance with their (in my opinion) mis-guided beliefs. But I would rather let people live their lives with freedom of expression, including religious expression, than force them to provide a service that truly conflicts with their conscience. And I, as a Seventh-day Adventist, believe that using the government to make someone behave a certain way, is fraught with many problems. It may even be worse than required worship.

(Carolyn Parsons) #12

This option goes against all non-discrimination law and by so doing would eliminate the requirement that a company selling goods and services to the public not discriminate on the basis of religion, sex, race, etc. There is no right for a business providing goods and services to the public to refuse service to anyone based on their religious views. if the one’s they are refusing service to are included in their local anti-discrimination laws.

(Dan Hamstra) #13

And isn’t that the heart of the matter? Which right has more “clout”. Religious freedom (which is part of the US Constitution) or anti-discrimination (which comes from all manner of legislation at multiple levels of government)? In reading your comment more closely (I’m editing my reply this morning), I realize that you are talking about discriminating based on race/gender etc. and I am talking about discriminating in the services that are provided based on what the service provided will be used for. Is it possible to have both religious freedom and anti-discrimination co-exist when adherents to traditional religions are trying to live consistent with beliefs that are at odds with the “religion” of “thou shalt not discriminate against anyone under any circumstances, even if you have to violate the exercise of your religion to do so.”

(Carolyn Parsons) #14

Discriminating against others in protected classes is the law of the land and consistent with the constitution. There are limits to discrimination on the basis of religion. The Jim Crow laws in the US were claimed by some to be part o their religious belief. Without limits, it does not matter how reasonable or unreasonable the religious based discrimination is.


Wow, the person who wrote that is a very gifted writer. frighteningly good. And I can see such people easily gaining followers.

I honestly dont understand; I really dont. People seem to think getting offended is this bad thing that must be eradicated. On the contrary. The right to be offended is one of our greatest exports. Its those societies where you no longer have the right to be offended are the ones I’m afraid of.


Hello Aubyn,

In the other article, I posted a quote from a lesbian women (Courtney Hoffman) who donated $20 to the pizzeria cause, GoFundMe. And she explains why:

“My girlfriend and I are small business owners and we think that there is a difference between operating in a public marketspace and then attaching the name of your business to a private event,” Hoffman, who runs a kettle corn stand for various festivals and carnivals, explained. "If we were asked to set up an event at an anti-gay marriage rally, we would have to decline."

Mind if I ask: should this women be required to cater to such an event (anti-gay marriage rally)? I personally say no. But am interested to know what you believe.

Thank you.

(le vieux) #17

The attempts to stifle any opposition, under the umbrella of “hate speech” is chilling. Seig Heil! Or is it “long live Big Brother!”

I also don’t recall reading in the Constitution about a right to not be offended. I don’t believe it’s in the Magna Carta, either.

If one has the right to live an “alternative lifestyle,” than I also have the right to not be in favor of that lifestyle and to voice my opinion on the matter. But, in many cases, we are being asked to not only keep our opinions to ourselves, but to actively affirm the lifestyles of those with whom we disagree. A return to the Dark Ages?

(George Davidovich) #18

I agree with almost everything you said and your example of the pharmacist is precisely the one I had in mind however, your line of reasoning is missing another perspective, the fact that our right to freedom of expression ends where it infringes on others’ rights (in this case the rright to buy).
I fully support the right of the baker who does not want to sell (any) wedding cakes because they may be (mis)used in an LGBT wedding, but he cannot selectively choose which group he sells wedding cakes to. Same principle for the pharmacist, he should not be forced to sell contraceptives, but he can’t choose which group to sell them to (Catholiccs vs. Protestants). In other words, I have the right to select which services I want to sell or not sell because they conflict with my beliefs, but I have no right to impose my beliefs on anyone but myself.

(Allen Shepherd) #19

I was going to argue just as Kade did. But your response is interesting. Do you know of any suits brought by Christians or clansmen or anyone else against a cleaner etc. who refused to do work against their beliefs? I would be curious to know.

(Allen Shepherd) #20

I think there is little chance of the man being able carry out his threat, at least at the moment The gay folk really have the power, and plan to use it. They have said so publicly.

We SDA’s see the way that the church, or those you have quoted here can take. That is not happening now.

So, I agree, to curtail this kind of action is imperative. But futile.