US states redefine religious freedom: Time to read Obama's Delhi speech back to him

Remember Barack Obama’s speech on religious freedom at Delhi’s Siri Fort in January? That speech was widely seen by BJP-baiters as a lecture to the current government that is easily tarred with the brush of anti-minorityism based on the aggressive statements of some Sangh parivar loudmouths.

"Nowhere is it going to be more necessary to uphold (religious faith) than in India. India will succeed so long as it is not splintered on religious lines," pontificated Obama, pointing out that article 25 of our constitution guarantees “freedom of conscience and the right freely to profess, practice and propagate religion." President Obama balanced that pointed statement by also talking about America in the same vein. He said: “In both our countries, in all countries, upholding this fundamental freedom is the responsibility of government…”.

Barack Obama. AFP

It is time to read that lecture back to President Obama. Last month, the US state of Indiana legislated a Religious Freedom Restoration Act (RFRA) that seems to mean something quite different. The premise of the law is that religious people’s rights are violated if they cannot live up to their beliefs when confronted with uniform civil laws and code.

In other words, if the Bible says homosexuality is a sin but civil laws not only decriminalise gay sex, but also increasingly allow gay marriages, it is the true believer who needs his freedoms protection. The new trend in law-making in conservative states is to ensure that that a religious person cannot be prosecuted for discriminating against gays in the pursuit of his beliefs. So a food outlet owner who believes in the Biblical prohibition on homosexuality cannot be prosecuted for not serving gay or lesbian customers, or refusing to bake a cake for a wedding involving same-sex couples.

Quite clearly, in parts of Obama’s America, the meaning of religious freedom sometimes means the freedom to discriminate against people with different sexual orientations. Effectively, the right to religious freedom can mean the right to be bigoted. Recent surveys show that about a third of Americans do not like recent legislation and changing social attitudes that make gay sex and marriages not only legal, but also worth celebrating.

Interestingly, the first nation-wide RFRA law was legislated during the Bill Clinton era, and since them around 20 states have created their own religious freedom laws. While some of them are benign, the laws legislated by conservative states like Indiana and Arkansas specifically make religious bigots immune to prosecution for discriminatory treatment based on their beliefs.

Writing in Time magazine, Rod Drehner, a senior editor at the American Conservative, says the liberal argument against discrimination does not wash when it comes to religious beliefs. Religion-based discrimination, he says, is not the same as race-based bias. “Abrahamic religion does not see it that way. Sexual expression has moral meaning that race does not. You don’t have to agree with Orthodox Jews, Muslims and traditional Christians, but this goes down to the foundational beliefs of our religions.”

In other words, discrimination, when it is part of the foundational beliefs of Abrahamic religions, has to be immune from the normal laws against bias and bigotry.

The Indian parallel to this exists in the law passed to deny Shah Bano maintenance after divorce – as the Supreme Court decreed - and the refusal to go in for a uniform civil code. The interesting difference is that in India so-called “liberals” and “secular” parties are unenthusiastic about a uniform civil code as it supposedly upsets their Muslim vote banks. Conservative forces like the Sangh support a uniform civil code. In the US, the line-up of combatants in the religious law versus civil law debate is the exact opposite: conservatives want the freedom to discriminate, and the liberals oppose it.

Why is there such a fuss at this point, when the US RFRA has been on the statute book since 1993? Answer: many states have now started passing more regressive laws than the federal one, with Indiana being a recent case.

The Clinton era RFRA says that even “a religiously neutral law” can affect religious freedom and includes this clause: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

But Indiana goes much farther. As Garrett Epps writes in The Atlantic, “the Indiana statute has two features the federal RFRA - and most state RFRAs - do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” This provides companies and businesses protection from anti-discrimination laws, and not just churches and evangelical organizations who are anyway expected to follow the Bible.

Secondly, says Epps, the Indiana law contains a clause which says a “person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” In other words, even the state will not be able to prosecute violators for driving a coach-and-four over anti-discrimination laws. (Read the whole Atlantic article here).

Quite clearly, religious freedom in Uncle Sam’s conservative backyard is less about religious freedom, and more about protecting the biased and bigoted.

Time for us to read the Obama speech back to him.