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The Whole RFRA Controversy

As many of you have probably heard, Indiana is suffering quite a public relations black eye over passing a state Religious Freedom Restoration Act (RFRA). I tend to side with Professor Reynolds view why this suddenly is:

“Dems need something to agitate the base so it doesn’t pay attention to Iranian nukes, trashed email servers, and an overall culture of corruption. Those who join in are willing enablers.”

There’s also the issue that gay marriage is on the cusp of becoming a settled, and the Dems need red meat for the outrage machine heading into 2016.

Eugene Volokh has an article today on RFRA here. The fact that both sides at various times have hated the Sherbert Test and the RFRA that replaced it, makes me think it probably either offers substantive and good protections that limits both sides in their social experiments, or it’s a weapon too dangerous to let either side play with. I tend to think the former. I have no desire to see people discriminated against because of sexual orientation, but I don’t see much harm or risk of enabling systemic discrimination by carving out some narrow exceptions to accommodate people’s (or closely held corporations) religious viewpoints.

So what’s this have to do with gun rights? Not much. It’s an off topic post. But City of Boerne v. Flores, which is a case that involves the RFRA, and is actually responsible for the many state analogue RFRA’s, is going to be a key case for us when Congress starts using it’s Section 5 powers under the 14th Amendment to preserve Second Amendment rights of American citizens. City of Boerne is going to be Bloomberg’s best friend.

14 Responses to “The Whole RFRA Controversy”

  1. HappyWarrior6 says:

    From a tactical standpoint, it’s a little like why we fight for “enhanced preemption” laws to protect gun rights when the existing law at the laws on the books should work just fine upon a simple reading.

    Suddenly the purported chicken littles who talked about what happens when “government replaces God” at all those CPAC conferences seem not too far off.

    I don’t know if anyone envisioned bakers and florists being hauled in front of judges for refusing to acknowledge sham marriages (as the dictates of their faith require) in order to operate a business in the United States when anti-discrimination laws were passed in the 1960s, but I doubt that there are previous few who might want to see government go down the avenue of religious persecution based on these laws.

    The RFRA shouldn’t be needed in a society that respects constitutional law and individual rights for what they are, but it is. It does solve a real problem that we have already witnessed and is currently happening. So long as the courts want to overstep the traditional order and forge right into “legislation of morality” (a charge usually co-opted by the left), there are going to have to be reasonable conscience protections in place in keeping with legal tradition and natural law. It’s the same thing with Obamacare and mandated insurance coverage.

    I predict there will be more and more “conscientious objectors” and Irish Democracy (to steal a term from Sebastian) on this front in the coming years as the regulatory state expands.

    • Sebastian says:

      I stole Irish Democracy from Glenn Reynolds. Who stole it from James C. Scott’s book “Two Cheers for Anarchism: Six Easy Pieces on Autonomy, Dignity, and Meaningful Work and Play”

  2. Roberta X says:

    “Sham marrriages?” So, you feel the same way about interracial marriages, too? –Asking for a friend.

    Sebastain, issues like this remind me why I tend to keep mainsteam gun culture at arm’s length.

    • HappyWarrior says:

      I have never been a fan of blanket sets of laws to compel businesses regarding who they must serve. For the record I don’t believr inter-racial marriages are a sham, nor am I aware of any bakers or florists who have used a religious defense on those grounds. Its important to examine and consider context here which is what the RFRA framework “attempts” to do

    • zgd87 says:

      Roberta X: I don’t think you can infer from what HappyWarrior6 wrote the they actually believe gay marriages are “sham marriages” because he included “(as the dictates of their faith require)” after the fact.

      I have no problem recognizing the validity of other people’s marriages, in whatever form they may be, but I can understand how others would object to various types of marriages (gay, polygamous, whatever). If your job requires you to go to or provide services for weddings, I have no problem with you turning down jobs which would require you to be part of a religious ceremony that you disagree with.

    • Sebastian says:

      “Sebastain, issues like this remind me why I tend to keep mainsteam gun culture at arm’s length.”

      There are probably more traditional conservatives than libertarians in this issue, and hard core libertarians are probably going to argue government should never interfere with people’s right to associate or not associate.

    • mike says:

      Throughout history, marriage has been the union of one man and one or more women. So if two women want to get married, and call it a marriage, without changing the definition of “marriage”, they’d have to convince a man to join in. I couldn’t care less whether same sex couples want to form a union of some kind. But it’s not a “marriage” as the rest of the world understands that word. If they want to change the definition, then let’s have that discussion. But it seems that they’re trying to just change it and expect everyone to fall in line and happily adopt it. Instead it seems like a good way to polarize the discussion.

      But as for the role of government in all of this? There shouldn’t be one, beyond enforcing contracts related to marriages and other unions.

  3. Evets Steve says:

    I will not practice witchcraft.

    Specifically, I will not believe that writing a spell on a piece of paper and posting it on your front door to ward off evil has any magic powers that protect those inside.

    Every “No Guns” sign should be illegal once this law is signed.

    • Fred says:

      I think you read the law backwards. If someone declares themselves a witch or wizard (as their religion) and claims that their religious beliefs protect their establishment (or home) with magic, then they _do_ have the weight of the law on their side and they can deny 2A rights to anyone on religious grounds.

      • Evets Steve says:

        No, magic isn’t a religion, at its best, it’s a mildly entertaining dinner show in Las Vegas.

  4. Jay Hafemeister says:

    Can somebody tell me what stopped an Indiana business from discriminating against a gay couple before their RFRA law passed?

    Oh, that’s right, nothing.

  5. aerodawg says:

    I just wish these laws would stop being mischaracterized as far as what they do.

    All they do is guarantee a day in court for those with objections and require the courts to apply strict scrutiny to whatever the law or regulation is. To the court there has to be a compelling gov’t interest and the law has to be the least restrictive means of accomplishing it.

    These laws in no way shape or form institutionalize and legalize descrimination.

    Secondly, it’s not like the businesses are refusing to serve homosexuals at all. This isn’t the 1960s lunch counter in Birmingham. They’ll do anything you want NOT connected to your wedding. They simply don’t want to participate in any way with the wedding.

    Thirdly, I’ve asked people who oppose these laws, are you OK using the law to make a Kosher butcher sell you bacon? If yes, that’s disturbing and if no, how is it any different than the wedding situations?

  6. I always thought it ironic that the original, bipartisan-supported RFRA of the Clinton era, passed because of lobbying after the Employment Division v. Smith decision, would be struck down over something as mundane as a suburban zoning squabble.

    And how the context has changed since then!

  7. Gray Peterson says:

    Section 5 of the 14th amendment, the Militia Clause Article 1, Section 8, and Commerce Clauses is what Congress is going to have to use.

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