Tuesday, May 05, 2015

Conscience, Discrimination, and Marriage Equality: Are Analogies to 1964 -- and 1967 -- Inevitable?

Linda McClain

Here is a blog post that I contributed to a recent online symposium on "RFRA in Indiana and Beyond," at Cornerstone, the blog of the Religious Freedom Project at Georgetown University's Berkeley Center for Religion, Peace, and World Affairs. The symposium examined the recent controversy in Indiana over its Religious Freedom Restoration Act and subsequent "fix" or "clarification bill."  The symposium asked about whether religious freedom of small business owners should "protect them from having to act against their consciences" or whether such protections would open the door to "wide-ranging and unjust discrimination."  Other contributors include Steven D. Smith, Ira Lupu and Robert Tuttle, J. Stuart Adams and Robin Fretwell Wilson, and Ralph C. Hancock.  My post asks why the Civil Rights Act of 1964 and Loving v. Virginia (1967) are  such resonant historical reference points for so many people when considering these calls to protect religious conscience in the marketplace, including some Republican critics of the recent Indiana and Arkansas RFRAs (and the earlier Arizona law vetoed by Governor Brewer). At the same time, proponents of robust protection of religious conscience insist that the cases are wholly distinct:  today’s sincere religious believer who adheres to the one man-one woman definition of marriage has no resemblance whatsoever to an earlier era’s white supremacist or bigot who opposed integration in all spheres of life, particularly marriage. They also argue that changing civil marriage laws seriously threatens religious liberty and resist any comparison between a refusal to provide goods and services on the basis of race and present day refusal on the basis of belief in “traditional” marriage. I conclude that how one evaluates the “fix” of Indiana’s RFRA may hinge on how one views conscience and morality at work in the controversy.

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