Freedom and duty often go hand in hand, as Indiana legislators quickly learned last week. After the state approved a law reinforcing religious liberty, a national protest claimed the measure could be used by religious owners of small firms to refuse business to gays and lesbians. In fast retreat, top lawmakers said the new act would soon be amended to prevent such discrimination.
This national upheaval, coming after clashes over similar measures in other states, seems to pit civil rights against religious freedom. In recent years, nearly half the states have followed a federal law in setting strong protections for religious practices. The measures insist that courts find a compelling government interest before imposing a burdensome rule on a person in the exercise of his or her faith.
Whether religious-liberty laws end up violating other rights and interests largely remains to be seen. In at least two cases so far, state courts have ruled they cannot trump anti-discrimination regulations. Yet the rhetoric on both sides about potential harm can often be overhyped and overgeneralized. Each case must be judged on its merits with a calm eye for accommodation and context.
The courts remain the best arena to resolve these difficult issues. By their very nature, legislators cannot foresee all the circumstances in which a law involving religious freedom might play out against other government interests. Judges are less prone to public pressures and passions as they weigh each argument or particular detail against foundational principles. As the great constitutionalist James Madison wrote in 1788, the courts are better placed to stamp the “final character” on laws.
Madison also gave good advice on the constraints of religious liberty in helping write Virginia’s Declaration of Rights in 1776. The measure states that all citizens are equally entitled to the free exercise of religion. But it also says such a right comes with the mutual duty to practice “forbearance, love, and charity, towards each other.”
Such qualities of thought are too rarely practiced in the halls of legislatures or in media punditry when debating measures like religious liberty or civil rights. It is often seem easier to operate from fear and use the tactics of smear and attack.
In now trying to find a better balance between religious rights and the interests of a minority, Indiana could provide a lesson – one wisely foretold by the nation’s founders.