Religious Freedom Restoration: Legitimacy, Discrimination, and the Latest Bastion of Bigotry

By Doctor Comrade

Quando dou comida aos pobres chamam-me de santo. Quando pergunto por que eles são pobres chamam-me de comunista. [When I feed the poor, they call me a saint. When I ask why they are poor, they call me a communist.]
— Hélder Câmara

This week, a San Antonio woman named Joan Cheever was fined for feeding homeless people out of her food truck. As the police were harassing her, she told them that her activities were protected from government scrutiny by Texas's religious freedom restoration law. The police officers reportedly responded, "If you want to pray, go to church." According to on-the-scene reporting by Texas Public Radio, her confrontation with police also included these memorable lines:

Officer Marrota: So you can take it to court and tell the judge exactly what you are telling me.
Cheever: So what’s the citation for?
Officer Marrota: For serving – people – without a permit. You are not allowed to serve. That is the city of San Antonio.
[…]
SAPD Officer Marrota: It’s very nice that you are doing that. However…
Cheever: Do Good Samaritans get tickets in San Antonio?
Officer Marrota: Yes.

Naturally, this raises several questions concerning the conflicting goals of religious freedom laws across the country. Indiana was the latest state to pass such measures, and according to some reports Indiana's law is the most extreme. Of course, Texas (and principally other southern states) is no stranger to religious freedom restorations. What becomes apparent, however, is that "religious freedom" does not pertain to all religions or all forms of religious expression, but a narrowly tailored discriminatory agenda. These RFRA laws have been rightly criticized for allowing discrimination against same-sex couples, particularly in terms of wedding catering. Yet we must also think of the numerous other ways "religious freedom" and "conscience" can be used to discriminate against people who violate conservative Christian prescribed norms. The question is about legitimacy: which religious justifications are legitimate, and which should be foisted upon all citizens?

In Georgia, a state law allows pharmacists to refuse to fill prescriptions if it violates their "conscience," and the result was a miscarrying woman being denied a prescription for misoprostol (a drug which helps treat incomplete miscarriages by expelling the contents of the uterus). The pharmacist turned the customer away because she believes it's possible to use misoprostol to induce abortions, and abortions are religiously illegitimate forms of personal choice.

Alabama banned Sharia law from being considered in judicial proceedings. Alabama also has an RFRA, which should raise some doubts about the genuineness of the ban on Sharia law. Rightly so, considering that practitioners of Islam have been unfairly burdened by the voters of Alabama and should be able to sue the state to have its constitutional amendment overruled by the federal courts. Certain Muslim practices are illegitimate forms of religious freedom and expression.

And of course we have Ms. Cheever, Good Samaritan, feeding homeless people in San Antonio, Texas. While these examples are certainly not exhaustive, I believe they illustrate how religious freedom laws have never been about restoring religious freedom, but rather they have codified the right of businesses to discriminate against those they find deviant or ideologically troublesome. Abortion, Muslims, and the poor all violate the idealized conservative Christian notion of what the United States should look like. Administering nutrition to the poor is an illegitimate form of social welfare because of American Jesus. We should follow this logic to its natural end.

What laws or policies have become so overtly burdensome for these oppressed conservative Christians? Perhaps all women should be forced to declare when they are menstruating, because otherwise those who touch them will feel unclean. In the holiest of Christian texts, Leviticus states “Whenever a woman has her menstrual period, she will be ceremonially unclean for seven days. Anyone who touches her during that time will be unclean until evening” (Lev. 15:19; cf. Lev. 12:12, Lev. 15:20, Ez. 36:17). Perhaps freedom from being unclean would dictate that all women must wear armbands to signify when they are unclean, or perhaps all menstruating women should be forced to shop after the sun goes down. Serving women on their periods clearly oppresses Christians.

We also know that worshipping other gods is sinful, and anyone who worships other gods should be executed (Deut. 17:2-5). Women who have premarital sex should also be executed (Deut. 22:13-21). And people who work on the Sabbath should be--you guessed it--executed (Num. 15:32-56). In fact, looking at women lustfully is adulterous (Matthew 5:28), and adultery is punishable by death (Deut. 22:23-24). And just being rude to the disciples of Christ is enough for God to smite a city (Luke 10:10-12).

Yet despite these Biblical laws--precedents set down by God and Moses and Jesus--there seems to have been a severe lack of stonings and smitings in this country recently. Let us then rescind all laws prohibiting murder because they overburden Christians from carrying out their religious duties.

This is completely hyperbolic, and I only list these Bible verses because there has emerged a particular Christian discourse which elides the aspects of Biblical teachings that conflict with social norms and government laws. Homophobia has become one of the last remaining bastions of Christian bigotry. In the nineteenth century, slave holders referred to the Bible to justify slavery. Men have used the Bible to oppose women's rights and women's suffrage. It has been used to justify segregation and homophobia. And after the government and the courts have repeatedly (finally) struck down numerous discriminatory measures, conservative Christians are attempting to claw back some of their Biblical power in one of the only remaining (supposedly acceptable) ways: targeting same-sex marriage.

The contradictory enforcement is indicative of this trend. Police harassed a woman for feeding the homeless and Alabama allowed an anti-Sharia amendment. These measures are clearly discriminatory against people who exist beyond the realm of the ideal Christian community. But in the days following Indiana Governor Mike Pence's passage of the RFRA, he has had to defend the state's law.

On March 29, Pence said “We’re not going to change the law but if the general assembly in Indiana sends me a bill that adds a section that reiterates and amplifies and clarifies what the law really is and what it has been for the last 20 years, than I’m open to that.” Then he again clarified that the law is not a license to discriminate, but “It’s about empowering people to confront government overreach,” including laws like the Affordable Care Act. Pence is careful to distinguish that this is a First Amendment issue because it hinges on freedom of religion, and you'll see he clumsily dodges the actual question. The real question is, what does the RFRA actually do then?

It allows businesses to claim religious beliefs as a defense for any action, "as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding." Indiana's RFRA broadens the scope of "religious freedom" beyond merely the government to private citizens and businesses. Now, as Governor Pence has said, if the law does not allow for discrimination, what is the actual function of the law? One establishment already refused to cater gay weddings, citing their support for the RFRA. Refusing services to a group of people based on their characteristics is discrimination. Literally, discrimination means "making a distinction," choosing to treat people differently based on a distinction between observable traits.

These laws seek to free Christians from unfair burdens placed upon them by laws like the ACA and the Civil Rights Act. African Americans were refused service at lunch counters in the South because of their skin color; same-sex couples can be refused service at pizza shops in Indiana because of their sexuality. That's an easy parallel to draw. Hobby Lobby and Catholic schools can refuse to provide health plans that cover contraception for women because it violates their religious beliefs. Fine, I'll become a Quaker and refuse to pay taxes that fund unjust wars. I'll smoke peyote to commune with the spirits of the Earth. I'll marry several women and the government can't stop me from claiming more dependents on my tax returns.

Let's call these religious freedom acts what they are: intellectual dishonesty. When religious freedom justifies actions beyond the pale of conservative acceptability, they outlaw those actions and claim that alternative forms of religious freedom are illegitimate (see: tax evasion, Employment Division v. Smith, polygamy laws, and the treatment of the poor in San Antonio). In Oklahoma, conservative lawmakers are battling against inclusion of a Satanist statue, despite one representative erecting a monument to the Ten Commandments in front of the capitol building. Oklahoma has an RFRA, which should extend religious protections to Satanists as well as Christians, yet Satanist expressions of their religion are deemed illegitimate. As one Republican representative said "I think you've got to remember where you are. This is Oklahoma, the middle of the heartland. I think we need to be tolerant of people who think different than us, but this is Oklahoma, and that's not going to fly here." A very convenient placement of the word "but" after a statement of tolerance renders that statement of tolerance completely null.

It seems as though Governor Pence and other conservatives are already aware of this fact.