Saturday, March 26, 2016

Does It Actually Make Sense To Sign A State-Level RFRA?

Religious Freedom Restoration Act. It was an act of Congress in 1990, in response to a Supreme Court ruling in favor of a Native American, who lost a job on account of peyote used in a religious ritual. Congress acted to conform the law with the dictates of the decision. On a more whimsical note,  it was back when liberals stuck up for people with unpopular religious convictions. In any case, the federal RFRA neither obligates, nor was understood to mean automatic deference to religious liberty claims.

Of course, in response to government-backed religious bigotry, and viewpoint discrimination, many states have passed their own versions of RFRA. It seems to me that this is a wasted effort. Anything stronger than the federal RFRA would correctly be struck down as a violation of the supremacy clause of the Constitution anyway. And among activists, who have used the courts as an unaccountable legislature for decades, it is doubtful that legislative intent, history, and procedure means anything at all. It can be set aside by results-oriented judges at every level.

In political terms, does it make sense to antagonize more temperate pro-gay advocates and allies, to little effect? For a great many people, the victories of the gay rights movement symbolize acceptance of people as such, as reductionistic and mistaken as that is. If the advocates of traditional morality offer only symbolism and tribal self-identification, they lose, on these emotional terms.

I would rather make a natural law argument, and take the heat up front, than fight defensive actions on the terms of legal positivism, which traditionalists have already lost. If the majority of Americans are willing to persecute traditional viewpoints by way of government, the battle is lost. I wouldn't sign an RFRA as the governor of a state. Bad politics, bad advocacy, bad everything.

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