Complicit as Sin

How gay marriage opponents transformed themselves from a religious majority to a religious minority.

April 9 2015 4:29 PM
By Dahlia Lithwick

Discriminatory state Religious Freedom Restoration acts—proposed most recently in Indiana and Arkansas and coming soon in Louisiana—have been described as reactions to a spate of big wins for the gay and lesbian community, most notably in reaction to marriage equality. The proposed Louisiana version, for instance, would allow private businesses to refuse to recognize same-sex marriage and to deny benefits to same-sex married couples. According to press coverage in recent weeks, these religious freedom acts have their genesis in pushback against LGBT rights. A piece last week in the New York Times claimed, “the campaign by conservatives to make ‘religious liberty’ a rallying cry made its public debut in 2009, when a coalition of conservative evangelical, Roman Catholic, and Eastern Orthodox Christian leaders issued a manifesto they called the Manhattan Declaration, proclaiming that they would not cooperate with any laws that compelled them to recognize same-sex marriages or enable abortions.”

But these religious freedom arguments are actually rooted in an older movement, a decades-old effort to protect religious “conscience” through health care refusal laws. And it’s a movement that goes far beyond cake bakers and florists, sweeping in physicians, pharmacists, and insurers. Unless you see these new RFRAs as of a piece of this much broader, deeper social movement, you are missing the context that helps frame the debate. Doug NeJaime of the University of California–Irvine and UCLA law schools and Reva Siegel of Yale Law School expose these real origins of the new religious freedom claims in their law review article, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” coming out soon in the Yale Law Journal. In their telling, nothing about Indiana is new or surprising.

Indiana Gov. Mike Pence defended his state’s RFRA as recalibrating the balance of civil rights and “religious freedom.” But these are simply not your father’s religious liberty claims. As Siegel and NeJaime note, the claim here is not that a religious individual is being forced to do something that violates his religion, such as shaving his beard; it is that he must be free from endorsing or enabling the behavior of others who are engaging in what he sees as sinful behavior. This was the central claim of the employers who sued in Hobby Lobby. They argued that it was itself sinful to provide health coverage to employees who might then use those benefits to engage in ostensibly sinful conduct. This is the same argument as the business owner’s claim that frosting a cake or arranging the calla lilies for a same-sex wedding is an act of “complicity” in a union that the business owner deems sinful.

Why does this matter? Because as Siegel and NeJaime argue, the new religious objections affect bystanders, ordinary folks in the greater community. These “third parties” are just people (often marginalized people, like gay couples or women seeking birth control) whose beliefs and values are not shared by the religious claimant. The authors point out that these new complicity-based religious conscience claims may well be authentic and sincere, as were the religious freedom claims originally contemplated by Congress when it drafted and passed the RFRA in response to a Supreme Court decision that declined to protect the religious freedom of Native Americans seeking to use peyote in a religious ceremony. But the new RFRAs may hurt third parties in ways these earlier state and federal RFRAs never quite imagined. The intent of this new article is to consider why.

http://www.slate.com/articles/news_and_politics/jurisprudence/2015/04/rfras_in_indiana_arkansas_louisiana_religious_conscience_complicity_and.html