Lawyering Up: The Religious Freedom Restoration Act

Inspired by a particularly ripped-from-the-headlines episode of The Good Wife (if you haven't watched this show, shame on you. Are you also against universal suffrage?) which made compelling arguments both for and against the recently controversial provisions of Indiana's Religious Freedom Restoration Act, I did a bit of research to better wrap my head around and expand on one notable argument the show made.

Far from being the most sound or reliable legal argument against the RFRA, I found it profoundly exciting for its radical implications. Rather than quoting the episode script verbatim or posting video clips like some transparent Huffington Post article (seriously, stop being so basic and just watch the show), I'll summarize the argument. Put simply, if a baker wishes to refrain from providing cakes for gay weddings, would she be willing to provide cakes for weddings of previously divorced couples? Since the Bible condemns both divorce and homosexuality, it would seem that anyone claiming objections to one should rightfully object to the other.

This isn't a new argument. A cursory examination of any comment thread or forum board debating the issue predictably contains some variation of this argument, typically interchanging the analog to gay marriage for any of the many archaic and ignored stances in the Bible (popular options are rape, slavery, chastity, and mixed fabrics in clothing). The interesting thing about this is how such a commonly used internet argument might be applied meaningfully to judicial considerations, and even more interestingly, how it relates the causes of gay rights and atheism. It's not a coincidence that this argument, while commonly found in debates over gay marriage, also tends to flow quite effortlessly in response to almost any religiously involved argument. After all, the Bible is full of some rather jarring content.

The real question here is whether such an argument could really hold weight in legal proceedings, and if so, why haven't they been used yet? From my readings of one very helpful article coming out of UPenn, "Veganism and Sincerely Held 'Religious' Beliefs in the Workplace: No Protection without Definition" by Donna D. Page (you should also read this because it's interesting, but only after you watch The Good Wife), defining religion has been a contentious legal endeavor in the US for a long time, with the Supreme Court contradicting and revising its own interpretations on multiple occasions. Lower courts have also attempted to define the term with their own novel tests in reaction to the unclear guidance from the higher courts. This is an understandable confusion as no contemplative mind would find the task of defining exactly what constitutes a religion to be easy. The issue cuts a path through semantics and intentions and applies to a broad sample of legal cases.

As it currently stands, one seemingly important test is ascertaining the strength and consistency of one's beliefs. This makes sense as it stems from United States v. Seeger and subsequent cases regarding conscientious objectors where the importance of preventing insincere and self-serving excuses from inclusion under religious protection is obvious. But the question before us now is whether a contemporary religiously motivated individual who objects to servicing gays can rightfully expect religious protections if they only selectively choose which beliefs and provisions of their religion to act on. Would it not be inconsistent practice to claim an objection to homosexuality while wearing a blouse made of wool and cotton? And if we accept that certain individuals might still believe in all the teachings of their religion but simply fail to observe all those teachings in practice, doesn't that place the individual dangerously close to the verge of failing meaningful and substantial commitment to their "religion"? After all, I can claim any number of made up "religious" beliefs to exempt me from taxes, but if the courts see a blatant pattern of behavior flying directly in the face of those beliefs, am I likely to win a right to any exemptions? Probably not.

But the deeper implications of the argument might be far more damaging than just the hard pill conservative bakers nationwide would be forced to swallow. If we are to question the very validity of religious belief based upon consistent and meaningful adherence to doctrines, who among us would truly be capable of claiming any religious protection at all? Who among us in the modern financial credit market of America doesn't collect interest from some bank account or stock portfolio? Who among us hasn't indulged in carnal knowledge with a high school beau whose parents were away on vacation? These may seem simply like prescriptive behavioral doctrines that do not fully define a religious belief, but even if we are to allow that every religion dictates the foundation of its own belief system, Christianity has so often made explicit reference to the Bible as the instrumental guide to knowing and understanding the principles of the religion that it would be impossible not to judge the merits of a proclaimed Christian by their adherence to the prescriptions of the Bible. If the Bible is the word of God and God is the Supreme Being with whom our relationship defines religious status in the court of law, then how can we not consider adherence to the behavioral prescriptions of the Bible to be the very litmus test of true religious status?

And yet doing so would utterly cripple the very notion of religious protections as judicial interpretation of the Bible, or any other holy text for that matter, seems like a task logically incongruent with the very notion of religious protection. Letting the government decide how to interpret a religion in order to determine which religions warrant protection from itself is like allowing Congress to decide how much Congress should get paid—err—letting a pedophile decide the age of consent. But that's exactly the issue the RFRA is forcing us to confront. By bringing issues of religious rights to the courts, we are asking the courts to help define religions, and by asking the courts to define religions, we are asking them to infringe upon religious rights. The problem is ever more complicated by the fact that an argument of the kind mentioned earlier is essentially a thinly veiled critique of the entire Christian belief system. It is not simply an anti-anti-homosexual argument. It is an anti-Bible argument. It attempts to undercut the very foundation of the religion, bringing into question infinitely more perplexing issues regarding religion itself and a discussion of the merits of atheism, which considering the controversy already stirred by gay rights alone, may simply be too much for the American public to handle without the threat of civil war.

It's clear that defining religion is a task heretofore still incomplete, and I am skeptical as to whether it can ever truly be completed. Bearing in mind the philosophical complexity of something like religions and beliefs, it seems perhaps that defining such things presupposes our understanding of far more vexing existential mysteries altogether. And yet here we are now, forced to make those decisions with incomplete knowledge for the sake of pragmatic social order. But then again, isn't that ultimately what all human civilization boils down to?