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A Response to Kirsten Powers on Arizona



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For my money, Kirsten Powers is one of the best liberal pundits — fearless, unpredictable, well-informed. She has a piece in the Daily Beast responding to defenders of the Arizona law that attacks my column from last week. Her piece is typically forceful, but unfortunately sheds much more heat than light.

She says I call “people who are accurately describing the law liars.” What I said is that the critics of the law were ill-informed and hysterical. As an example of hysteria, I cited Kirsten’s column last week when she wrote that the Arizona law could lead to Army sergeants being stranded in small towns where Christian pacifists have a monopoly on the hotels. I guess these would be pacifist hoteliers who aren’t just opposed to war but opposed to any contact with members of the military. And we’re supposed to believe that these extremely hypothetical pacifists in a hypothetical small town with exclusively pacifist-run hotels would have their hypothetical claim under RFRA stand up in court. I’m sorry, but this is kind of silly.

Kirsten complains that I say the Arizona law isn’t anti-gay and then, in a gotcha tone, cites an NR editorial arguing that it will afford protections to business-people who don’t want to provide their services to gay weddings. But this isn’t much of a catch, given that I write in my column that the cases most relevant to the Arizona controversy have to do with small business people getting punished for refusing to provide their services for gay weddings.

That RFRA may afford protection for such business people doesn’t make it “anti-gay,”any more than it is “anti-contraception” because it is being invoked as a defense against the contraception mandate, or “pro-peyote” because the impetus for the law came from a case involving workers smoking peyote, or “anti-military” in Kirsten’s hypothetical. It is a law that protects religious liberty and conscience rights when they come into conflict with laws and certain longstanding legal standards are met, and this might happen in many contexts.

The case against the Arizona bill depends heavily on it being some kind of radical departure from the federal version, which was championed by liberals like Ted Kennedy and signed by Bill Clinton. I and other defenders have emphasized how the Arizona clarifications — making it clear that RFRA can be a defense even when the government isn’t party to a proceeding and that RFRA applies to businesses — are in keeping with the federal law. We have cited a letter from legal scholars suggesting that the federal law has these same features. Kirsten says it’s not clear that this is true.

On the question of the federal law applying to business, RFRA expert Douglas Laycock of the University of Virginia (a supporter of gay marriage) seems to make a very strong case in this post: “The government’s speculations about what Congress might have thought, must have thought, should have thought, cannot compare to this explicit record of what Congress actually did think. For-profit corporations do not often exercise religion, but when they do, they are covered by RFRA.”  But let’s say that the federal RFRA, properly interpreted, is unclear on this point. Then the Arizona changes are still merely removing an ambiguity that can be argued either way rather than boldly forging new territory. The logic of the anti-Arizona position is that RFRA itself is out of date and undesirable, a position that a few on the Left are warming up to while their more timid allies cling to the tenuous argument that the proposed Arizona adjustments were a watershed change.

Kirsten argues very passionately that Christians should provide their services to gay weddings. This is what her conscience tells her, but there are other Christians whose conscience tells them something different. The relevant public-policy question here isn’t who has the better understanding of Christianity, but whether Christians with a different view than Kirsten’s should be punished. Kirsten, although she doesn’t directly say so, apparently believes the answer to that question is “yes.”

The point of RFRA is (again, when certain legal standards are met) to provide a safe harbor for people of conscience whose views may be considered unreasonable by majority sentiment, or by those who consider themselves more advanced thinkers. Kirsten should understand this. She has written in opposition to the Obama administration applying the contraception mandate to the Little Sisters of the Poor. In a USA Today column, she rapped HHS secretary Kathleen Sebelius for neglecting “to consult the Justice Department to determine whether the mandate was consistent with the Constitution and the Religious Freedom Restoration Act.”



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