The Anarchy Of ‘Religious Liberty’

The Anarchy Of ‘Religious Liberty’

It’s a good thing Americans have no serious problems, because the time and energy we expend fighting over symbolic issues could become a problem. Sure, symbols can be important. The swastika is a symbol, also the U.S. flag. But this week’s farcical casus belli involves a couple of spectacularly ill-conceived “religious freedom” statutes in Indiana and Arkansas.

As originally written, these laws would give every private business in both states — every butcher, baker, and wedding cake maker — powers and privileges equivalent to the Pope of Rome. But is that what their authors actually intended? Moreover, even if the laws stand, which looks unlikely at this writing, would anything important really change in actual practice?

As a longtime Arkansas resident, I very much doubt it. Political posturing aside, person to person, are people here really so self-righteous and mean-spirited as to treat their LGBT neighbors like lepers? Or, more to the point, like blacks in the bad old days before the civil rights revolution of the 1960s? Would we revert to open discrimination in broad daylight?

No, no, and no. Those days are gone forever. Nobody really wants them back. What’s happened here is that the Chicken Little right has worked itself into a yet another existential panic over the U.S. Supreme Court’s expected ruling legalizing gay marriage, badly overplayed its hand, and set itself up for yet another humiliating defeat.

Anyway, here’s what I meant about the Pope of Rome. A while back, I got myself into hot water with old friends by failing to express indignation about a Catholic girls’ school in Little Rock firing a lesbian teacher who announced her marriage to her longtime companion.

My view was simple: as a lifelong Catholic, the teacher knew the Church’s position, and she ought to have known what would happen. It’s an authoritarian institution, the Holy Roman Catholic and Apostolic Church. By all accounts a terrific teacher — she landed another job immediately — the newlywed had somehow persuaded herself that as her homosexuality had long been an open secret, openly defying Church doctrine wouldn’t be a problem.

Wrong.

Now, you’d think the Catholic Church’s own appalling failures would have rendered it mute on questions of sexual morality for, oh, a century or so. But that’s not how they see it. When and if the doctrine changes, it won’t start in the Mount Saint Mary’s Academy faculty lounge. Damn shame, but there it is.

Was I being smug because I’ve never faced such difficult choices? Could be. But here’s the thing: No American has to be a Roman Catholic; it’s strictly voluntary.

But the United States isn’t supposed to be an authoritarian country. And that’s precisely what’s so potentially insidious about both the Indiana and Arkansas statutes as written, and why they cannot be permitted to stand. Under the guise of “religious liberty” they would give zealous individuals and private businesses near-dictatorial powers with no legal recourse.

Under Arkansas HB1228, aka the “Conscience Protection Act,” it’s every person his own religious dogma — “person” being broadly defined as any “association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity.”

Dogma would trump civil rights at every turn. What it could mean in practice is that if your landlord’s God objected to your being gay, he could evict you. Should your employer’s religious scruples cause him to object to your marrying another woman, he could fire you.

And there wouldn’t be a thing you could do about it.

Advertised as preventing “government” from forcing conscience-stricken wedding photographers to document Bob and Bill’s nuptials, the Arkansas law would also make it nearly impossible for private citizens to file lawsuits against “persons” professing religious motives.

“Persons,” remember, including corporations, estates and trusts. You could end up losing your job because some dead person’s will stipulated “no faggots.” Or no Muslims, Catholics, or redheads, I suppose.

But what such laws really threaten isn’t so much tyranny, University of Arkansas-Little Rock law professor John DiPippa points out, as anarchy. “With HB 1228,” he writes “county clerks could seek exemptions from issuing marriage licenses for same-sex couples, or for interracial couples, or divorced couples. Teachers could refuse to teach the required curriculum.”

All this because certain literal-minded religionists can’t get it through their heads that marriage can be two things: both a legal contract between consenting adults, and a religious ceremony. If your church chooses not to sanction certain kinds of marriages, nobody says it must. But as a legal matter, other people’s intimate arrangements are really none of your business.

Why is that so hard to understand?

So no, these laws are not going to stand as written. Hardly anybody wants to go back to the 1950s. When Apple, the NCAA, Angie’s List, Walmart, and Charles Barkley are all lined up on the same side of a political controversy, that side is going to win.

Image: “Hoosier Hospitality” by Mike Ficht (Flickr)

This post has been updated.

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