The headline reads “A License to Discriminate.” And the New York Times editorial board goes on to claim that Arizona has just passed “noxious measures to give businesses and individuals the broad right to deny services to same-sex couples in the name of protecting religious liberty.” The Times got it wrong. The proposed legislation never even mentions same-sex couples; it simply clarifies and improves existing state protections for religious liberty. And as the multitude of lawsuits against the coercive HHS mandate and the cases of photographers, florists and bakers show, we need protection for religious liberty now more than ever.
In 1993, overwhelming bipartisan majorities of both houses of congress passed, and President Bill Clinton signed, the federal Religious Freedom Restoration Act (RFRA). The Act states that the federal government “shall not substantially burden a person’s exercise of religion” unless it can demonstrate that such a burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling interest.”
In 1999 the state of Arizona passed similar legislation that prevents the state government from similarly burdening the free exercise of religion. The bill that the Arizona legislature just passed is an amendment to the 1999 state RFRA clarifying that the protections extend to any “state action” and would apply to “any individual, association, partnership, corporation, church, religious assembly or institution or other business organization.” In other words, it protects all citizens and the associations they form from undue burdens by the government on their religious liberty or from private lawsuits that would have the same result.
Respecting religious liberty for all those in the marketplace is particularly important. After all, as first lady Michelle Obama put it, religious faith “isn’t just about showing up on Sunday for a good sermon and good music and a good meal. It’s about what we do Monday through Saturday as well.”
What the Times dubs “discrimination” is in actuality simply liberty. Liberty isn’t about acting only in ways that the New York Times approves of. Liberty protects the rights of citizens even to do things we might personally disagree with.
Indeed, the Arizona law would protect groups like Hobby Lobby from a state-level HHS mandate coercing them to provide insurance coverage that violated their religious convictions. The crucial question here is not whether you yourself would or wouldn’t pay for abortion-inducing drugs and contraception, but whether government should force the Little Sisters of the Poor to do so.
What’s the compelling government interest being served by the mandate? Is requiring nuns to provide coverage of abortion-inducing drugs and contraception the least restrictive way to accomplish that interest?
In truth one needn’t be against contraception to think the government shouldn’t coerce nuns into being forced to provide it. Likewise, one needn’t be against baking wedding cakes for same-sex couples to think the government shouldn’t be able to force evangelicals to do so.
Part of the genius of the American system of government is our commitment to protecting the liberty and First Amendment freedoms of all citizens while respecting their equality before the law. The government protects the freedom of citizens to seek the truth about God and worship according to their conscience, and to live out their convictions in public life. Likewise, citizens are free to form contracts and other associations according to their own values.
While the government must treat everyone equally, private actors are left free to make reasonable judgments and distinctions—including reasonable moral judgments and distinctions—in their economic activities. Not every florist need provide wedding arrangements for every ceremony. Not every photographer need capture every first kiss. Competitive markets can best harmonize a range of values that citizens hold. And there is no need for government to try to force every photographer and every florist to service every marriage-related event.
Freedom is a two way street. And it requires allowing others to do or not do things that we might choose differently for ourselves.