Indiana Religious Freedom Law Is Nothing New: I Helped Write The One Clinton Signed

Michael Farris Contributor
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The controversy over the Indiana Religious Freedom Restoration Act reveals one of the most troubling schisms in the history of the United States. Moreover, it demonstrates that some members of the left are blatant hypocrites.

I was on the executive committee of the Coalition for Religious Freedom that succeeded in obtaining the passage of the federal Religious Freedom Restoration Act. Additionally, I was the co-chair of the drafting committee of lawyers that composed RFRA and was actually the person who suggested the name of the bill.

Bill Clinton signed RFRA after it was passed by a nearly unanimous Congress in 1993 — when the Democrats were in control of both houses.

The coalition that backed RFRA was a historic exercise in bipartisanship and religious ecumenical action. The coalition included every stripe of Republican and Democrat and a vast array of religious organizations of every stripe. The ACLU and People for the American Way supported RFRA. I was the token right-winger in the leadership of the coalition which was dominated by left-leaning groups.

We agreed to work together because of one overriding principle — religious freedom is for everyone.

The need to enact RFRA came from a case involving Native American religious adherents who used the drug peyote in their ceremonies. I, a conservative Baptist, stood with this group contending that religious freedom was for everyone. Another group that was suffering persecution at the time was the Hmong people who had views on autopsies out of the cultural mainstream. Baptists, Catholics, and Jews stood with the Hmong people saying that religious freedom is for everyone.

Our initial draft of RFRA protected religious freedom against violations by any government — state or federal. But the Supreme Court ruled that it was beyond the power of Congress to protect religious freedom vis-à-vis state governments. Thus the federal RFRA was left in place as a protection for religious freedom for all against federal government violations. Several states quickly passed state-based RFRA’s to ensure that religious freedom was protected for all people against state government actions as well.

Indiana is a late-comer to this issue. But, there is an enormous body of precedent for the principle that the Indiana law embodies.

Not only do we have the federal RFRA and all of these state counterparts, we have nearly 400 years of American history which boldly proclaims that religious freedom is for all. After all, protection from religious intolerance was in fact a primary motivation for a great many of the early settlers of this continent.

But now there are significant forces in society clamoring against this Indiana legislation because it dares to stand with the principle that religious freedom is for everyone.

Many Christians and Muslims believe that same-sex marriages are antithetical to their religious beliefs. And we are long past the issue of whether the government can be coerced by the judiciary to grant marriage licenses for such relationships. We are simply debating whether people can be forced to participate in such ceremonies contrary to their deeply held convictions.

Forcing a Christian photographer to use his craft to record a same-sex wedding is tantamount to forcing a Jewish butcher to slaughter pork to sell such products to people who demand a full-range of service.

The leftist forces of “tolerance” are demanding unbending adherence to their doctrinal views of sexual ethics. Those who refuse to comply are being persecuted in what amount to heresy trials under so-called non-discrimination laws.

Religious liberty is a far different concept from religious tolerance. The Toleration Act of William and Mary in 1688, allowed very minor deviations from the orthodoxy of the Church of England. You could differ, but not too much, from the standards of the official church or you would be severely punished. Toleration is a cheap imitation of liberty.

We have to decide whether or not we still believee in liberty.

In 1994, a nearly unanimous Congress passed the Religious Freedom Restoration Act. It stood for the principle that religious freedom is for everyone — even those who believe that personal participation in a same-sex wedding is morally offensive. Every segment of American political and religious leadership stood together.

The 2015 Indiana RFRA is indistinguishable from the federal model — especially as interpreted by the Supreme Court. But today, religious freedom is not for everyone.

Toleration was a dark precursor to religious liberty. Today, it is a dark precursor back into the age of religious hostility and open persecution.

Mr. Farris is Chairman of the Home School Legal Defense Association.