The Brouhaha that is the RFRA

Brouhaha is something that people think is really important that’s actually not important at all, like the brouhaha over some new celebrity gossip. It may seem like a big deal, but often it’s a bunch of baloney.

The word Brouhaha has at least two meanings. The tile of Shakespeare’s comedy, Much Ado About Nothing, sums up the first one. Brouhaha also means loud shouts and noises coming from all over the place, like the hubbub of people pouring out of the stadium at the end of a big and exciting sporting event.

Might we call the latest media noise almost country-wide regarding Indiana’s RFRA, a brouhaha? People talk and write about it as if it were all important, but is it? I’ve spent a few hours plowing through some of the talk and writing and what I hear and read does seem to me to be much ado about nothing, that is, a brouhaha.

This controversy, like too many others, has its origin in the hastily drafted First Amendment to the Constitution, which among other things “prohibits the making of any law … impeding the free exercise of religion.” The founders must have loved the sound of that, their guarantee of the people’s right to exercise their religion. And even today, who could be against what has come to be called RF or religious freedom?

So what’s going on? What is all the noise about? Is it that somehow the free exercise of religion is being impeded and needs protection? That seems to be how it all got started, with the attempt to protect someone’s religious freedom. First with the Ur-RFRA of 1993 that as everyone is quick to point out, was sponsored by Senator Kennedy (that which for some gave it a cachet of authenticity) and passed almost unanimously in both House and Senate.

The 1993 FR Act was in response to a complaint that the religious practices the freedom of religion of Native Americans was not being protected, and was in fact being impeded. Three years before the bill was signed, the U.S. Supreme Court had ruled 5-4 that the use of the hallucinogen peyote by two Native Americans in a religious ceremony in Oregon was not being sufficiently protected and three years later RFRA became a way to protect those kinds of Native American ceremonies, even though peyote was illegal.

Ask yourself the question. Was this particular interpretation of the First Amendment what the Framers had in mind? Not likely, I would say. And that’s not all. In the Hobby Lobby Case of June, 2013 the Supreme Court ruled again 5–4 that the government could not force closely held, perhaps family-owned, for-profit corporations (those that that were at least half owned by five or fewer people) to cover employees’ birth control, siding with the Evangelical Christian–owned chain craft supply store Hobby Lobby.

If David and Barbara Green, the co-founders of Hobby Lobby, they had been required to do as mandated they would have had to provide, against their own religious convictions, four potentially life-terminating drugs and devices in the company’s health insurance plan. The Greens argued that the mandate substantially burdened their religious beliefs in violation of the federal law, the Religious Freedom Restoration Act. Did it? 

My own interest in all this stems in good part from my reading of the op-ed columnists of the NYTimes, in particular, David Brooks, Frank Bruni, Timothy Egan, and Ross Douthat, all of whom were a quiet part of the “noise” and wrote thoughtful pieces on the controversy that had been created by the proposed Arkansas and Indiana Laws that would bring the Federal religious freedom protection law to their states.

Only two columnists whom I regularly read, Thomas Friedman and Roger Cohen, have not spoken out, at least in their Times columns, as far as I know, on the subject. In Friedman’s case he may have been too busy interviewing President Obama concerning Iran. But for both men, who regularly write about critically important controversies among the nations and among the peoples of the world, RFRA may have seemed a bit trivial, and as for me, much ado about nothing.

Yet the four columnists who each gave over one of their op pieces to the controversy did find interesting and important things to say. Even Much Ado About Nothing, as Shakespeare’s play, can be of real interest. I’ll take them in the order in which I think they were written.

BrooksDavid Brooks
March 31, 2015

Religious Liberty and Equality

What does Brooks say? Well he sees a struggle, that has been going on for some years now, to find the right balance between civil rights and religious liberty. While he admits that straight, gay, and lesbian people (I’d add to that bisexuals and trans men or women) deserve full equality with each other he adds that “Americans have always believed that people should have the widest possible latitude to exercise their faith as they see fit, or not exercise any faith.”

Now these two positions are not, as David would like to think, two sides of the same coin. There is a huge problem with the phrase, “the wides possible latitude to exercise their faith.” Isn’t that what ISIS is doing in the Middle East, seizing the very largest possible latitude to exercise their extreme Islamic beliefs, with the resulting slaughter of innocents. Granted this is an extreme, but wouldn’t the Native Americans say that their faith included title to their land and that they were in their rights to expel any trespassers?

Religious freedom is not an absolute. In many instances the freedom of religion has to be impeded, something the Founders didn’t seem to be aware of. If there is an absolute in David’s discussion it is the civil rights of individuals that need protection from what is often the “religious freedom” of the powerful majorities, those for example that David has kind words for, people being worth, he says, of our respect and if necessary gentle persuasion. But in spite of David’s argument claims of religious liberty from these same people (who yes, do believe in their own definition of marriage) may very well be covers for anti-gay bigotry.

When you think about it the various “freedoms” of the First Amendment, the free exercise of religion, freedom of speech, of the press, the right to assembly, and to petition, none of these so-called freedoms are absolutes. For each freedom may be trumped by the civil rights of an individual, as happens when an individual is refused a public service because of his sexual orientation.

BruniFrank Bruni
April 3, 22015

Bigotry, the Bible and the Lessons of Indiana

I turn now to Frank Bruni. He pretty much feels the way I do, although he writes better and is probably therefore more persuasive. According to Bruni (and myself) one’s religion, one’s faith has to be, should be trumped by a higher power, or better, higher morality, when that religion clings to old, long outdated beliefs and traditions, such as marriage is between a man and a woman, and homosexuality is a sin.

For these beliefs, and others like them, have no objective validity and need to be tossed aside in a world where not only millions may not share these beliefs, but also because our attitudes towards both marriage and sex are no longer those of millions, but our own, and at best will reflect our own choices, and should no longer be imposed upon us by an external authority such as a religion.

EganTimothy Egan (actually a “contributing editor, not a Times columnist)
April 3, 2015

The Conscience of a Corporation

And Egan, what is he saying in his Conscience of a Corporation piece? That religious freedom is fine, as long as the Corporation’s products may be freely bought and sold? Religious freedom? Rather the corporation’s freedom to sell and our freedom to buy.

douthatRoss Douthat
April 4, 2015

Interview With a Christian

And now Douthat…

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