Timing is everything, they say. Well, I don’t know that anything is actually "everything," but there’s no question that the coincidence of the national debate surrounding Indiana’s, and maybe Arkansas’, passage of a new Religious Freedom Restoration Act, and Passover, often called the Festival of Freedom, is certainly something.
What does it mean to be free, to restore freedom, to legislate freedom? And while we are at it, what does the much-debated law actually say and mean? It’s quite amazing how many people, including those with very strong opinions about it, really have very little idea.
It’s amazing how few people understand that the law passed in Indiana is almost identical to the federal RFRA passed with the full support of President Clinton in 1993. It’s amazing how few people appreciate that the Indiana statute provides less latitude to government than do similar laws in the 20 other states, including Connecticut, whose governor is leading the charge against the Indiana law.
The Indiana law requires that people’s religious beliefs be “substantially burdened” before they can claim that their religious freedom is being violated. The federal law, Connecticut law, and the law in most others states with RFRA’s, allow that claim with any burden at all! But that does not mean the Indiana law was simply more (or is that less?) of the same.
The Indiana law as passed extends the obligation to not create substantial burden beyond government, to private citizens. While there is nothing inherently discriminatory in the law, it could allow private citizens to protect their own religious views, not only from government impositions, but even otherwise legitimate requests for service from other private citizens, e.g., a gay couple wanting two men placed on top of their wedding cake. It could do that, but to claim that it necessary would, is specious as that would need to be litigated in court and the law interpreted by judges who side with the baker-plaintiff.
Of course, the real irony here is that both many proponents and many detractors of this law claim to speak for God with equal certainly about what exactly God wants. Perhaps the certainty and stridency expressed by both sides in itself is the problem here, or at least the real barrier to solving it. The track record of people so ready to speak on behalf of God, or God’s will, is less than stellar, to say the least.
And on a practical level, do we really need TV personalities telling us what is and isn’t God’s will, as they were yesterday on social, and virtually every other form of media? Is the country really better off with news commentators glibly comparing Gov. Mike Pence to Gov. George Wallace, as I have heard now more than once?
There must be a way to combine passionate advocacy with spiritual and intellectual humility. If not, then two sides are painfully alike, and most of us will suffer from an increasing polarization that will make it increasingly hard to do what most American want — have their own rights respected and not curtail those of others.
Believe it or not, that is where most of us are, regardless of which side we are on this particular debate. It’s like abortion. Most Americans are actually anti-abortion and support a woman’s right to choose. How many advocacy groups make that their position?
However well-intentioned people may be on either side of this issue, legislation and the inevitable litigation which will come in its wake, are not good substitutes for creative legal interpretation of existing laws and the genuine conversations about religious freedom that are not happening between people who understand that term differently.
For starters, we could simply commit to examining with others who do not share our views, the following two notions: Freedom of religion is more than the narrowly constructed freedom of worship which progressives often think it is. Bakeries or a flower shops, for some at least, are as much places which require protection for the free exercise of religion as is a church. For many people of faith, the free expression of religion is a 24/7 thing, and that includes folks from both the left and the right.
Freedom of religion is not, and was never, intended to be a guarantor that one could sidestep other fundamental rights in order to make others conform to one’s own religious views, as religious conservatives often think. Pursuing one’s view of what God wants is fine, but the state is not meant to be the agent of that, again for the left or the right.
So yes, as Passover is upon us, beginning this Friday at sundown, I will be thinking about the relationship between celebrating freedom and celebrating the centrality of conversation and questions.
That’s the approach that animates the millennia-old ritual called Seder, the dinner symposium which brings together family and friends regardless of politics and policy, inviting all to eat and drink together, and to feel the remarkable dignity that comes from asking big questions about what it means to be free, to protect one’s own freedom, and to do the same for others.
Brad Hirschfield is a rabbi, an author, and a commentator on religion, ethics, politics, and pop culture. He also is Newsmax TV regular. He serves as president of the think tank, Clal, and is co-founder and executive editor of TheWisdomDaily.com. For more of his reports, Go Here Now.