Cross Purposes
Adapted from the March 24, 2014, issue of NR

(Illustration: Darren Gygi)


Ramesh Ponnuru

The good news coming out of the just-concluded legislative battle in Arizona is that religious freedom remains what it has been there, undiminished by Governor Jan Brewer’s veto of a bill meant to protect it. The bad news is that the debate over religious freedom has taken an ominous turn. Here are six takeaways from the controversy.

The media cannot be trusted to report accurately on social issues. I mention this first not because it is the most important part of the Arizona story — though it is very important — but because it has made understanding that story so difficult. The press leans to the left, as everyone knows, and especially on social issues. CNN anchors more or less openly advocated for a veto of the bill, which they would generally not do on tax legislation.

Political journalists tend to accept social liberals’ framing of issues, their terminology, and their claims, and to believe the worst about social conservatives. In the Arizona debate, these tendencies manifested in widespread reports that the bill authorized businesses to refuse to serve gay people who wanted to be their customers and in the labeling of the legislation as “anti-gay.”

Headlines in the New York Times, the Washington Post, USA Today, and many other outlets either used that label or repeated that claim. In their limited defense, the proximate reason for the legislation does have to do with homosexuality: Conservatives were concerned that without the law, business owners who object to same-sex marriage might be forced to take actions they regard as participating in, facilitating, or condoning it. They were moved by cases such as one in neighboring New Mexico, where a wedding photographer was punished for refusing to serve a same-sex commitment ceremony.

The legislation itself, however, did not mention gays, homosexuality, or same-sex marriage, and largely tracked the federal Religious Freedom Restoration Act (RFRA): a law that was enacted by large bipartisan majorities that included many liberals and was signed by President Clinton in 1993. It would not have authorized business owners to turn away gay customers — which, by the way, is something Arizona law already allows but that businesses have not been eager to do. It would not even have authorized bakers to refuse to make a cake for a same-sex wedding, which is a scenario both sides of the debate often mentioned. It would have given those bakers a claim in court but not guaranteed their success with it.

The RFRA says that religious believers can get exemptions from a generally applicable law if they can convince judges that the law imposes a substantial burden on the exercise of their faith and is not the least restrictive means of advancing a compelling interest of the government. That is the same rule that the Supreme Court followed, as a matter of First Amendment law, from 1963 through 1990. Neither the Court during that period nor the RFRA says that the religious believer’s conscience will always trump laws. The Arizona bill would not have said that either.

In cases where the government was trying to force a religious believer to do something he considered contrary to his faith — or a private party was trying to use a law to force him to do that — the believer would be able to ask the court to grant him an exemption if his case passed the law’s tests. The Arizona bill differed from the federal law, and clarified previous state law, in two ways. It explicitly allowed businesses, not just individuals, to make conscience claims in court, and it explicitly allowed the claims to be used against private litigants. Whether the federal law applies in these cases is disputed.

Neither difference would seem to justify labeling the Arizona bill as “anti-gay,” given that almost nobody labels the federal law that way.

What has changed since 1993 is American liberalism’s view of religious freedom. The RFRA was not something liberals conceded to religious conservatives. It was something they affirmatively sought. Then-representative Chuck Schumer (D., N.Y.) was a sponsor, and Senator Ted Kennedy (D., Mass.) was a strong supporter.

Now liberals regard religious exemptions from laws as suspicious privileges for religious believers. Brian Beutler, writing in Salon about the Arizona bill, makes the point thus: “To support SB 1062 you must conceive of religious liberty as a social trump card. . . . This view writes democratic norms and competing liberties entirely out of the equation. . . . That view reflects an old, reactionary conception of liberty.”

Beutler’s account is an overstatement but not an invention. The old, reactionary conception of liberty championed by Ted Kennedy really did regard religious liberty as a trump, in many instances, over laws that were enacted democratically to advance other values. The same is of course true of any other liberty: If it does not sometimes act as a trump, it does not exist; and if it does not often act as a trump, it hardly exists.

Beutler suggests that churches that refuse to marry same-sex couples should lose their “privileged tax status.” I doubt many liberals are there yet. They will probably move first against groups such as the Knights of Columbus, demanding that their halls be made available to same-sex weddings. But give them time.

The advance of gay rights has at best an ambiguous relationship to the older conception of liberty. Obviously, liberalism’s growing coolness toward religious liberty is intimately related to the growing place of gay rights within it and within American society. Those Americans at the forefront of this trend see it, and describe it, as a straightforward victory for liberty. And some of its important milestones fit the libertarian or classical-liberal template perfectly: in particular, the abolition of laws against sodomy.

Same-sex marriage is a different sort of issue. Governments do not “ban” it in the way some of them ban marijuana or once banned pornography: The question is whether they will grant it official recognition. (The fact that even National Review Online headline writers frequently describe laws defining marriage as the union of a man and a woman as “bans on gay marriage” is a testament to how deeply confused the debate has been.) The libertarian argument for same-sex marriage is rooted in discomfort with marriage as a separate legal category of its own rather than as one of an infinite variety of contracts individuals can make. That argument has not played an important role in the public debate.