By Jane Henegar
This is awkward. Awkward and complicated.
But balancing the rights and values Americans hold dear is often awkward and complicated. The Founders intended that our Constitution would protect individuals' rights while promoting the common good.
The Indiana General Assembly is considering legislation, called RFRA (Religious Freedom Restoration Act) or "Hobby Lobby" bills. Those who promote these bills explain that the purpose is to protect religious liberty and, in the words of a supporter, to "protect churches, businesses, non-profits and individuals against unjust lawsuits and/or government action that could result in fines, prosecution or worse." But butting up against the right to religious freedom is the equally important American value of being free from discrimination. So, are these good bills or harmful bills? Are the bills a necessary added protection of religious liberty or an attempt to use religion to discriminate? The ACLU's view is that the legislation is unnecessary, potentially intrusive, and will lead to unintended consequences and discrimination.
Before I explain, let me reiterate a promise right here: The ACLU will be the first to defend a church that is threatened or forced by the government to perform a marriage ceremony or any other religious ritual. But such government action hasn't happened and is unlikely to happen. This legislation is a solution in search of a problem.
Across the nation, the ACLU has fought for decades to defend religious freedom. But, while the freedom to hold religious beliefs and opinions is absolute, the freedom to act pursuant to one's religion is not.
If Indiana were to enact a RFRA, the legislation would have the unintended effect of increasing government involvement in religious matters. Individuals could claim any law or government action burdens their exercise of religion. The legislation would require employers, government bureaucrats and ultimately judges to delve into people's religious beliefs and determine whether they are "sincerely held"—which does just the opposite of getting government out of meddling in religion.
Our concerns about these bills are based not on conjecture, but on the very real experiences of other states and municipalities where similar legislation has already been passed. As the examples below demonstrate, anyone could claim an exemption from state or local laws they deem burdensome to their individual religious beliefs:
- A police officer in Oklahoma asserted a religious objection to attending a community relations event held at a mosque, claiming a "moral dilemma."
- In New Mexico, a religious leader cited that state's RFRA when he appealed a conviction for sexually abusing two teenagers.
- Pharmacists in several states have used religious freedom as a defense for refusing to dispense contraception.
- In Michigan, a public school guidance counselor refused to help gay students because of the counselor's religious beliefs.
There are many more examples of how these laws have been misused, but you get the idea. Even if a claim is frivolous, the government will still have to use your tax dollars to fight it in court.
It is no coincidence that this legislation was introduced in the last General Assembly after the defeat of HJR-3 which sought to enshrine discrimination in our state Constitution, or that it is being reintroduced in this session after we helped secure the right of same-sex couples to marry the person they love. But there have been no cries for help from people who have been forced to act in ways contrary to their religious beliefs. No church has been forced to perform marriages against its will. The religious beliefs of some may not have held sway on the matter of marriage equality. But those individuals retain the right to their religious beliefs and opinions.
Let's not give ourselves or others an excuse to discriminate. Freedom of religion is one of our most fundamental rights as Hoosiers and Americans. Let's not demean a hard-won liberty. The ACLU will be here, as we have been for almost 100 years, to protect the right of each and every one of us to believe as we each believe and to speak as we wish to speak-- free from government intrusion and discrimination.
Instead of enacting unnecessary legislation and intrusive regulation, perhaps we could all exercise a shared belief – one that is ensconced in one form or another in almost every system of belief, be it religious, secular, or constitutional. It's the Golden Rule: Do unto others as you would have them do unto you.
Jane Henegar is the Executive Director of the ACLU of Indiana.