Huston II: The Religious Freedom Firestorm

March 28, 2015

For the use of the membership only; not for duplication, distribution or quotation without permission of the author.

by Tom Charles Huston

When the Religious Freedom Restoration Act was pending before Congress in 1993, the American Civil Liberties Union claimed that passage of the measure was “the most important action that Congress can take for the free exercise of religion since the First Congress passed the Bill of Rights.” It passed handily and was signed by President Bill Clinton. Over the ensuing years, 19 states, including Texas, Florida, Virginia and Pennsylvania, adopted mini-religious-freedom statutes. These measures attracted little attention until the Supreme Court applied the federal statute in its Hobby Lobby decision affirming the right of a closely held corporation not to offer employees health insurance with contraceptive and abortion coverage. Suddenly the greatest protection for religious liberty since adoption of the Bill of Rights was seen on the Left as a threat to sexual liberty.

I have always thought it a mistake for opponents of same-sex marriage to harp about the alleged threat to religious liberty posed by a baker being required to bake a cake against his will. While there are genuine religious-liberty issues that may arise collaterally out of the establishment of same-sex marriage by judicial order (in which the sort of accommodations customary to legislative log-rolling are not made), most of the common scenarios are largely irrelevant to key issues. These are the implications for family formation and nurturing that arise out of the alteration of our understanding of marriage or the very real threats to religious liberty associated with the determination of the abortionists to maximize the opportunities for the slaughter of the yet-to-be born.

That said, it never occurred to me nor, I would guess, to any legislator that what had heretofore been a largely uncontroversial legislative action in sister states would suddenly be characterized as a world-class threat to the lives and liberties of gay Hoosiers and an open door to blatant and rampant discrimination. This firestorm was entirely unpredictable but, in retrospect, was likely unavoidable.

The intensity of the storm is a function of several factors. First, the gay lobby is extraordinarily aggressive, undeterred by either reason or civility, and fueled by a deep-seated anger against religious orthodoxy. Second, the Democrats have become the party of sexual self-expressionism, and this party is controlled by feminists, gays and gentry liberals for whom sexual norms are anathema, and orthodox religion is a threat to their self-esteem and self-expression. Third, the Indianapolis Star is staffed by these same Democratic elements. Fourth, the Chamber of Commerce, Cummins, Lilly and other big-business interests have embraced the gay agenda and advanced the gay narrative, thereby providing cover for political forces that are routinely hostile to the economic interests of business and the principles of a free market. Fifth, Hoosiers are inherently decent people and are genuinely repelled by the idea that their gay friends and neighbors could be embarrassed by denial of service under the pretense of the exercise of religious liberty. That no such result logically follows from the adoption of the statute is immaterial, because all their sources of news insist that anti-gay discrimination is the intended result.

In the culture wars, it is imperative to occupy the moral high ground. Being seen as advocates for conduct that appears to ordinary people as petty, mean and unreasonable is not a tactical position in which you want to find yourself. Caught unawares, the advocates of religious liberty in contexts that really matter were unprepared for a well-orchestrated assault in which truth was never engaged. Lacking adequate organs of response, they have been overwhelmed by the shouting and the waving of the bloody shirt. It has not been pretty.

What now? Seek out audiences, muster and refine your arguments, stand your ground and wait it out. More importantly, think strategically and concentrate your forces against targets on the Left that are vulnerable. It is a lot easier to explain to your neighbor why Notre Dame should not be forced to provide its priests and nuns with insurance coverage for contraceptives than it is to explain why some religiously orthodox baker ought to have the right to refuse to bake a wedding cake for a gay couple.

Tom Charles Huston, A.B., J.D., an adjunct scholar of the Indiana Policy Review residing in Indianapolis, served as an officer in the United States Army assigned to the Defense Intelligence Agency and as associate counsel to the president of the United States.

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