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Of course, what RFRA had in mind were personal religious practices that didn’t significantly affect anyone else: wearing a yarmulke, consuming peyote in a religious context, that sort of thing. It was a shield against government coercion.
In the last few years, however, a network of arch-conservative Catholic organizations and familiar, Christian-Right Protestant ones has sought to redefine religious liberty as a sword, not a shield. Led by the Ethics and Public Policy Center, a conservative think tank, they have gone from state to state promoting “mini-RFRAs” to allow religious belief to trump any law at all, especially those prohibiting discrimination. Arizona’s is one of these. So is Georgia’s, Idaho’s, and South Dakota’s.
Now, we all know what this is really about: Religious conservatives disapproving of gay people. Trouble is, you can’t come out and say that in a law, because then it won’t pass judicial review. (This was the problem in Idaho, which withdrew its mini-RFRA just as the Arizona legislature passed its.) So, the laws are written more broadly. “Religious freedom” is proposed as a defense to any lawsuit at all.
But the trouble with that is, it includes too much. Suppose I’m a conservative Christian who sincerely believes that the Jews killed Christ, and contemporary Jews must be held accountable. Under the mini-RFRA, I can simply hang a “No Jews Allowed” sign on the front door of my store, inn, restaurant, or yoga studio — and that is perfectly legal.
Or suppose I believe that God demands racial segregation — as Bob Jones University claimed a few years ago. Now I can go back to “Whites Only” drinking fountains, as long as I can prove I’m motivated by a sincere religious belief. Which many racists are.
Of course, this isn’t what the Ethics and Public Policy Center, the conservative think tank behind the mini-RFRAs, may have in mind. They just want pharmacists not to have to dispense birth control pills, photographers not to have to take pictures of gay couples, and corporations of any size not to have to cover same-sex partners on their insurance plans.
But then again, using religious freedom as a sword wasn’t what RFRA’s authors had in mind either. Once you open Pandora’s Box, it’s open.
Let’s invite our Orthodox friends to rethink their shortsighted support of these laws, which ultimately are bad for gays, Jews, and anyone else who might be the target of discrimination. Let’s tell them: don’t sell America’s birthright of religious pluralism for a bowl of anti-gay porridge. Let’s not make Arizona the next Uganda.
Jay Michaelson is a contributing editor to the Forward.