Thoughts on RFRAs and Nondiscrimination

Renewed interest in Religious Freedom Restoration Acts (e.g., Indiana, Arkansas) has arisen because everyone knows the US Supreme Court will okay gay marriage for the country in a few months. Conservative religious people and entities want to be in a comfortable position when this uncomfortable reality hits — they want to still feel like this is “their” country, too. For example, the LDS Church’s push for compromise in Utah, which lead to last month’s nondiscrimination bill with religious exemptions, was likely timed to settle the Utah battlefield so that once the Supreme Court ruling is issued, the Church Newsroom can basically convey measured disappointment yet assurance that the Church’s legal and cultural boundaries are still largely in tact.

Other parts of the country are having trouble creating compromise because conservative legislatures have said “no” to nondiscrimination laws such that RFRAs appear as mere wholesale licenses to discriminate. In fact, without nondiscrimination laws, a right to discriminate is already present anyway, so a RFRA is not necessary — it’s symbolic. The symbolism (AKA legal ambiguity) gives the impression of the state codifying particular religious beliefs even as RFRA supporters argue that they are actually protecting themselves from a “state religion” of nondiscrimination (e.g., upcoming national gay marriage).

The idea that gay families are morally neutral could arguably qualify as a kind of “belief,” as illustrated by this libertarian cartoon:

When a nondiscrimination law passes, it generally always includes the separation of “church religion” and “state religion”; that is to say, the Utah “compromise” was really just a continuation of the tradition of civil rights to always include freedom for religious entities to discriminate.

As such, the LDS Church doesn’t actually support nondiscrimination against LGBTs in housing, employment, etc, but rather the “balance” in the law that allows the Church to continue to discriminate against LGBTs and anyone else, actually. (Mormons might be tempted to argue that the Church does, in fact, support nondiscrimination, but one need look no further than BYU’s policy on same-sex sexual conduct.) On the surface the Church might seem to have gotten what it wants (its cake and eat it, too), but I think internally, things are far less stable than they might seem.

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