The harshness of that standard is underlined in an ominous final section, which provides that “there is not a higher protection offered by the state than the protection of a person's right to religious freedom.”
If there is no right more protected than “religious freedom,” then no “burden”— and certainly not any “burden” imposed by a local statute that forbids discrimination in employment, housing, or public accommodation—can ever be “essential” enough to override a claim for religious exemption.
That’s not circumstantial evidence of discriminatory intent; that is a smoking gun.
The proponents of these very bad bills are on the defensive right now, largely because national business interests have stepped in. The forces of equality have the advantage; and while they have it, they would be wise to insist that the new wave of state RFRAs—if they are to be adopted at all—contain no deception and no weasel words that might allow them to be used against civil-rights claims.
Some conservative voices are proclaiming that this controversy means that gays and lesbians have gone too far. New York Times columnist David Brooks suggests that the gay movement is “going off the rails … A movement that stands for tolerance does not want to be on the side of a government that compels a photographer who is an evangelical Christian to shoot a same-sex wedding that he would rather avoid.” His Times colleague Ross Douthat warns that “both Jim Crow and the means we used to destroy it are, well, legally and culturally extraordinary”—by which, I think, he means that adding sexual orientation to the list of traits protected by civil-rights laws would be an overreach.
I haven’t got much hesitation saying that commercial photographers open to the public should take all customers, regardless of race, religion, sex—or sexual orientation. And of course, public accommodations are not usually about wedding photos—they are about pediatricians, about pharmacies, about daycares or private schools for your children. They are about being able to shop and eat in public without exclusion and humiliation.
Beyond that, I have heard this kind of rhetoric before. You reformers are tyrannical, you are remorseless, you are uncivil. Why do you insist on complete equality? Just wait a few years, or a decade, or a generation, and all this will clear up on its own.
But social change doesn’t work that way. Glaciers sometimes melt overnight; but with shocking swiftness, they may freeze again.
I don’t say this out of a desire to punish people who disagree with me. I know that people of faith are tormented by some of these changes—just as some of my Christian neighbors in the 1960s were tormented by the civil-rights challenge to their views of the Bible. But equality and an open society are, in the end, usually better even for those who fear them. I learned that lesson in the South half a century ago, watching a white community terrified of racial change emerge from its chrysalis not only unhurt but enriched. That experience convinced me that any human inequality supported by law is a dangerous and unstable flaw in the fabric of democracy, and that the result of lifting artificial barriers is usually renewed energy, solidarity, and progress.
There are powerful forces hoping to roll back all the gains in civil equality made in the past 25 years. If you doubt that, just look at the Alabama court system—and consider that state RFRAs often put important social questions in the hands of elected state judges. The moment is propitious, but it is not the triumphal march Brooks and Douthat seem to think it is.