Mirror, mirror: Press wrestles with a clash between open discrimination and rare acts of conscience

A wise journalism professor once told me that it always helps, when trying to think through the implications of a controversial story, to try to imagine the same story being seen in a mirror, in reverse.

So let's say that there is a businessman in Indianapolis who runs a catering company. He is an openly gay Episcopalian and, at the heart of his faith (and the faith articulated by his church) is a sincere belief that homosexuality is a gift of God and a natural part of God's good creation. This business owner has long served a wide variety of clients, including a nearby Pentecostal church that is predominantly African-American.

Then, one day, the leaders of this church ask him to cater a major event -- the upcoming regional conference of the Parents and Friends of Ex-Gays & Gays. He declines, saying this would violate everything he stands for as a liberal Christian. He notes that they have dozens of other catering options in their city and, while he has willingly served them in the past, it is his sincere belief that it would be wrong to do so in this specific case.

Whose religious rights are being violated? Can both sides find a way to show tolerance?

This is, of course, a highly specific parable -- full of the unique details that tend to show up in church-state law and, often, in cases linked to laws built on Religious Freedom Restoration Act (RFRA) language. It's clear that the gay Christian businessman is not asking to discriminate against an entire class of Americans. He is asking that his consistently demonstrated religious convictions be honored in this case, one with obvious doctrinal implications.

Is there any sign that reporters covering the RFRA madness in Indiana and, eventually, in dozens of states across the nation are beginning to see some of the gray areas in these cases? Is there a difference between a catering company hanging out a sign that says "no black Pentecostals served here" (or no gays and lesbians served here) and the leader of this same company asking for some form of relief when facing a violation of his or her deepest religious convictions?

Yes, it complicates matters that the U.S. Supreme Court is wrestling with the lines between the rights of "corporations" versus those of "individuals," and that leaders in states like Indiana are having to craft legislation in that crossfire. However, as several commentators have noted, it's clear that the First Amendment extends to The New York Times as a company, as well as to its individual reporters and editors.

Major newsrooms are still cranking out reaction stories to the events unfolding in Indiana, while in almost all cases ignoring the fact that this story does not fit inside strict left vs. right templates. After all, defending the First Amendment is a truly liberal value. For a perfect example of this syndrome, look at this stereotypical Washington Post story that looks at the GOP political implications of this firestorm, with almost zero information on the real issues involved. Everything in life is a horse race, you see.

Over at Crux, you can see the editors -- in a sprawling analysis piece called "Why Indiana's religious freedom law is causing such an uproar" -- beginning to recognize that there may be legal lines that can be drawn between open discrimination and the defense of specific acts based on specific, doctrinal religious convictions, a glimmer that both sides might be able to find a way to tolerate one another.

In this passage, however, note the blurring of the lines between these two realities:

It’s no longer just individuals being protected from the overreach of government; it now extends to disputes between private parties, so even businesses can use religious freedom as a defense against discrimination suits.
Indiana’s law, and those being debated in a dozen other states, are coming after an outcry from social conservatives over episodes in which business owners were criticized or fined for refusing to provide services to gay couples who were getting married.
* A Washington florist was fined $1,001 for refusing to provide flowers to a gay couple for their wedding, citing her Christian beliefs.
* An Oregon bakery will have to pay a lesbian couple up to $150,000 for refusing to bake them a wedding cake two years ago.
* A New Mexico photography studio was found to have violated the state’s Human Rights Act by refusing to photograph a lesbian couple’s commitment ceremony.
As Indiana’s bill was moving through the Legislature, its supporters rejected amendments that would have limited its potential to allow discrimination. And the governor signed the bill at a private ceremony attended by several leaders of conservative groups that have campaigned against same-sex marriage.

Reporters, please ask this question: Has RFRA language -- in 30-plus states -- ever been used to justify open discrimination against gays and lesbians as a class? Is there evidence in #RFRA history that such a wide-sweeping claim would even be possible, as opposed to the defense of a specific act of religious conscience under circumstances with strong religious content?

The Crux analysis ends -- I wish it had begun with this -- with a variety of viewpoints on precisely these angles. Note, in particular, that this is a debate, not between left and right, but between radically different kinds of liberals. While the press focuses on the right, the most important debates are being held on the church-state left. Read the following carefully:

A major part of the uproar over the Indiana law is over the fact that the state does not have separate laws protecting gays and lesbians from discrimination.
Contrast that with a similar religious freedom law passed in Utah earlier this year and due to take effect in May: Its passage was marked by hugs between representatives of LGBT groups and Mormon elders. That bill sought to protect the interests of both.
Among the 20 states that already have RFRA laws, four have separate employment and housing non-discrimination laws for gays and lesbians: Connecticut, Rhode Island, Illinois, and New Mexico, as do three of the 12 considering RFRA legislation: Hawaii, Colorado, and Nevada.
That lack of explicit bias protection is another reason for the uproar in Indiana.
“Of all the state ‘religious freedom’ laws I have read, this new statute hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people,” Garrett Epps, a constitutional law professor at the University of Baltimore, wrote in The Atlantic. “The statute shows every sign of having been carefully designed to put new obstacles in the path of equality; and it has been publicly sold with deceptive claims that it is ‘nothing new.’ ” ...
Stephen Prothero, writing in USA Today, said that although he supports same-sex marriage and LGBT non-discrimination laws, RFRA laws are important in order “to offer religious minorities a day in court, and only rarely do these cases concern gay rights.”
Prothero, who teaches religion at Boston University, said that religious liberty itself is in jeopardy, without much more than a shrug from the left.
“For as long as I can remember, the culture wars have been poisoning our politics, turning Democrats and Republicans into mortal enemies and transforming arenas that used to be blithely bipartisan into battlegrounds between good and evil,” he wrote. “Now our battles over ‘family values’ are threatening to kill religious liberty. And liberals do not much seem to care.”

At some point, will the press discover that this is not a simplistic left-right debate? Will editors begin to realize that there is a pro-RFRA camp on the First Amendment left?

There are signs that might be happening buried in a massive pact of background materials being circulated today by the Religion Link team at the Religion Newswriters Association. But is it too little, too late, especially for the too-busy-for-history people at the major broadcast networks and cable operations such as MSNBC, CNN, Fox and, yes, ESPN.

Journalists may also want to look at the results of this new Marist Poll, commissioned by the Catholic News Agency. Note the distinction between sweeping discrimination policies, as opposed to the defense of specific acts of doctrinally driven conscience:

Fifty-four percent of respondents to a Marist Poll survey, commissioned by Catholic News Agency, support or strongly support First Amendment religious liberty protections or exemptions for faith-based organizations and individuals, “even when it conflicts with government law.”
About 65 percent of Marist Poll respondents opposed or strongly opposed penalties or fines for individuals who refuse to provide wedding-related services to same-sex couples “even if their refusal is based on their religious beliefs.” Only 31 percent supported or strongly supported such penalties.
The results of the poll were released in mid-March. In the days that followed, religious liberty became a heated issue, particularly surrounding the March 26 signing of the Indiana Religious Freedom Restoration Act. The state’s governor, Mike Pence, said that despite media hype, the law is not based on anti-gay discrimination, but on a 20-year legal precedent of protecting the rights of religious individuals and charitable organizations.

Stay tuned. And please tell us about any mainstream-news stories -- good and bad -- that address this specific element of the firestorm in Indiana and elsewhere.

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