Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
When Religious Liberty and Other Civil Rights Collide
By Timothy Sherratt
March 7, 2014
When Arizona governor Jan Brewer vetoed the religious freedom bill SB 1062, a lot of sober minds nodded in approval and relief, including both US senators and a posse of business and religious leaders. A clumsy attempt to protect religious liberty had given businesses a blank check to discriminate against gays, discrediting the important First Amendment’s protection of religious liberty. Governor Brewer had acted to save Arizona from a rash of boycotts—including, it was suggested, next year’s Super Bowl—by rejecting unnecessarily broad legislation that caused more problems than it solved.
In politics, perception has a way of insisting that reality conform to it, especially if reality reflects a complex legal history. Suffice it to say that the bill did almost none of the things its critics accused it of doing.
While a first reading of the bill could lead one to conclude that it was an overbroad attempt to protect religious freedom, it came as an almost unreported surprise to read a letter in support of the bill sent to Governor Brewer by a bipartisan group of eleven legal luminaries, among them Mary Ann Glendon, Michael McConnell, and Douglas Laycock.[i]
SB 1062 attempted to clarify Arizona’s Religious Freedom Restoration Act (RFRA), passed after the Supreme Court ruled that the federal RFRA protections did not apply to states. A RFRA does not write religious liberty any sort of blank check. Instead, it clarifies what kind of protection a person has in claiming religious freedom against a demand to violate that freedom by government or a private party. If, and only if, the person invoking the RFRA can show that a serious religious belief would be burdened by the other party’s demand, and if, and only if, the other party cannot show a compelling interest for making that demand, then religious liberty would decide the case in favor of the party claiming it.
Arizona proposed the law because a judge in New Mexico had ruled that the state’s RFRA only protected a person in a suit by government, not one brought by another private party. A wedding photographer had declined to take photographs at a same-sex wedding, citing religious beliefs. Arizona’s SB 1062 extended RFRA protections to suits by private parties.
Balancing religious liberty with other civil rights and liberties is a delicate business in a society marked by multiple worldviews. That balancing act, however delicate, is fundamental to public justice. Media do the public a great disservice in failing to present the issues in their full complexity. Editors ought to have more courage and more respect for the capacity of their readers, listeners, and viewers to absorb complex narratives.
Perhaps the media merely reflect the larger political culture. Perhaps no value is as elusive as genuine pluralism. To arrange constitutional liberties in such a way that people of different points of view may enjoy their freedoms alongside others with contradictory beliefs comes at a cost. As Stanley Carlson-Thies of the Institutional Religious Freedom Alliance notes, “[Pluralism] means not all individuals will consider themselves welcome in or well served by every organization in our society.”[ii]
I think Carlson-Thies’s words would be greeted by howls of disapproval from the giddier critics of SB 1062 celebrating Governor Brewer’s veto last week. Today’s campaigners for fundamental rights insist that these rights be accompanied by universal approval. But that kind of thinking only encourages the demonization of those who hold different views.
Christian churches, businesses, and charities will naturally want the maximum protection for religious conscience. But although they may experience renewed pressure on religious liberty—as many cases in recent years confirm—it is vital that they, too, demonstrate a mature grasp of the costs as well as the benefits of religious pluralism and a willingness to bear those costs for the sake of the common good.
- Timothy Sherratt is Professor of Political Science at Gordon College in Wenham, Massachusetts and a Sabbatical Fellow with the Center for Public Justice.
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