State Rep. Mike Johnson, a foremost legal authority on religion and the First Amendment, is considering a bill that would make changes to Louisiana’s Preservation of Religious Freedom Act. It largely mimics the federal law enacted in 1993, because a court ruling a few years later said the federal law could not apply to states. The law mandates that any government action that circumscribes practice of religious belief had to show a compelling interest to do so and in the least restrictive way.
Controversy over similar laws and changes to them in other states have arisen this year with an expansion of the definition, in the context of Louisiana’s version, of the concept of the “person.” Presently, that means consideration of religious rights of individuals and religious organizations. That definition would be expanded to include businesses as well, the impetus for this being a past U.S. Supreme Court decision signaling business transactions could be included in this calculus and whether this summer the Court conjures up protection to individuals on the basis of attitudes and behaviors other than those related to religious or political beliefs, namely practicing homosexuality, through a redefinition of marriage that prohibits states from confining it to between a single man and a single woman. Already in a majority of states same-sex marriages legally can be performed, in most instances forced upon the state by judicial fiat, meaning that the state may compel violation of conscience.
The concern is that if the Court were to engage in such activism, all states would be forced to define marriage as between any willing parties, and the commerce associated with that may allow the compulsion of the violation of the religious tenets of some as a part of that. For example, as already has happened, this can mean preventing a baker from turning down business when asked to make a cake the features of which celebrate a same sex union that he believes endorses sinful activity, much like if he might be asked to produce a confection designed to exalt a hitman’s first successful job, or to extoll a profitable bank job.
The strident and shrill opposition emanating from many about other states’ new versions to include business activities shows ignorance and distortion about these, perhaps willfully and intentionally. These would not allow turning down business for any reason at all, but instead would allow the introduction of religious convictions as a mitigating factor when adjudicating the propriety of any exercise of this clause in a court of law, where the court would decide whether these are such that government does have that compelling interest to force service and that there is no less restrictive way to resolve the conflict.
Thus, hyperventilating comparisons to civil rights issues, where Chicken Littles spin fantastic scenarios about any sort of commerce being denied with such laws to those who practice homosexuality, have no relevance or basis in reality – never mind, of course, that laws that create protected classes do so on the basis of some immutable and/or genetic characteristic and include otherwise only political and religious views that are based upon attitudes or behavior. The Constitution does not specifically create as a protected class, meaning that it can evaluate very suspiciously differential treatment of that class’ members and prevent this, those who choose to commit homosexual acts. The only thing the legal change in question would permit is to allow legal protection people may access to prevent them from having to act against their religious beliefs when these dissenters believe the commerce in question would force them to endorse certain behaviors and the attitudes from which they originated in violation of those beliefs, unless the denial of that service is adjudicated as too suspiciously discriminatory and only by preventing that denial can this discrimination be avoided.
As harmless as that might be – probably 99.44 percent of all bakers, regardless of religious beliefs, would rather grab the business, and a rejection here and there is not a gross violation of human rights – the intolerant reaction from some towards such a law allowing practice of those religious beliefs they don’t share mimics that of Islamic State fanatics slicing and dicing Christians. It’s not that they want to coexist peacefully with people who believe homosexual activity is sinful; rather, they want to declare a fatwa on that thinking and obliterate it, arrogating the power of the state to force their belief that homosexual activity has no stigma attached to it in anybody’s eyes by forcing acceptance of it as normal by disallowing any action that dissents from their orthodoxy.
In other words, this kind of opponent against the law is nothing more than people who are bigots and bullies, and, if nothing else, such a law encourages them to become more empathetic and understanding of others’ views that are both well-reasoned and not unreasonable; that is, they learn to be more tolerant. Joining but without the vitriol are large organizations that conduct business, which mouth many of the same erroneous arguments but back their coercive efforts to sabotage corrective legislation by threats of pulling that patronage. By saying they’ll withhold their 30 pieces of silver in an attempt to sell out religious freedom, these commercial interests put themselves on the same slippery slope identified by Pastor Martin Niemöller that culminates when those who practice hate finally come for you, since you did not stand up for others previously, there is no one left to protect you and your rights.
It’s exactly this climate of hysteria and fear that Johnson says has him wavering about introducing such a bill this session, in that the charged atmosphere may be counterproductive to the legislation’s success and postponement might be in order. That other states appear to be gutting their versions as a result of this small but intense frenzy also can weigh on a decision to proceed.
But if the Court later this year were to create out of thin air a right to marry regardless of gender (and therefore logically regardless of numbers, age, blood relations, and species), some religious people may lack protection at the state level in Louisiana. Johnson and others wanting to preserve liberty should not let the intimidators win, who precise purpose is scare supporters into abandoning this attempt. Introduce a bill and let the debate over its merits begin.