WASHINGTON, D.C. - Indiana’s state motto is “The Crossroads of America.” This week, two important roads in American politics and jurisprudence are crossing in Indiana.
One of those roads is the ongoing quest to give real protection to the rights and liberties of racial and religious minorities, women and gay people.
The other path, a reactionary one, wants to vastly expand one particular American right, the free expression of religion, to allow businesses and individuals to pick and choose who they think deserves equal treatment.
Indiana’s House and Senate have passed an Orwellian-named “religious freedom” law that Republican Governor Mike Pence said he would sign. The bill protects businesses and individuals from having to do things – and to obey laws – that would be a “substantial burden” on their religious freedom.
Gay marriage is the most visible and politicized arena where this rights conflict is being fought. Some businesses and individuals say it would violate their religious freedom if they had to, say, provide flowers, pastries or appetizers to a gay wedding. Indiana’s new law agrees and would protect them. This is a radical new understanding of the right of religious expression that would trump the civil rights of others.
The Indiana law is the wholly predictable and unfortunate consequence of the Supreme Court’s decision in Hobby Lobby v. Burwell last summer. In that famous case, the Supreme Court said that by forcing Hobby Lobby to provide its employees with health insurance that covered some forms of contraction, the Affordable Care Act violated the company’s religious rights.
One odd facet of the decision is that for-profit companies have the same religious rights as individuals, something common sense has a very hard time with.
More importantly, the court majority in Hobby Lobby said religious freedom no longer only meant protecting how one worships in private and in church, bought also means protection from any compromise of beliefs that may come up in the public world of business and everyday life. “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs,” Justice Ruth Bader Ginsburg said in her dissent.
Dissenters correctly predicted that the decision would set the table for continuing course of new litigation, new laws and new ways to justify old discrimination. That is exactly what is happening.
If it is legal for a company to refuse to cover contraception in its insurance plan, couldn’t a Christian Scientist company refuse to provide health insurance at all? If it’s okay to refuse catering services at a gay wedding, what about at an interracial marriage? They violate some religious beliefs, too. What if a corner store owned by Muslims didn’t want to serve Jews, or vice versa?
It isn’t hard to make this a long list. Indiana is on the verge of sanctioning and empowering this very un-American mutation of a fundamental American principle.
Earlier this week, Senator Ted Cruz launched his presidential campaign at a convocation service at a Christian fundamentalist university. What a powerful message that sends to Americans who aren’t Christian – Jews, Buddhists, Muslims, atheists and, the biggest category of all, “none of the above. The message is simply: We don’t want you.
Indiana is at crossroads and is about to send that very same message, enshrined in a law.