This blog serves as somewhat of a response to Mark Smith’s blog.  It is different however in that it deals primarily with legal and broader theological issues.   By now most know something about the stir in Indiana—I can feel the reverberations from across the border—concerning the recently passed state law protecting those with religious scruples from being prosecuted due to their refusal to serve individuals with whom they, based on conscience, fundamentally differ on religious grounds.  The law is very close to those already existing in 19 other states and even closer in language to the Federal Religious Freedom Restoration Act (RFRA) 0f 1993, the same one invoked by the Supreme Court in the Hobby Lobby case.  Very simply the law gives protection to those who have conscience issues.  But the protection is not absolute.  One cannot claim exemption from general laws or ordinances just by saying one objects.  The conscience objection must be shown to be real and genuinely religious and also one must show that harm would result.  In relevant part the law reads:

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

UPDATE:  The statute might be modified by the Indiana legislature in light of the backlash, so stay tuned on that.

As you can see, the act follows closely the RFRA and does not allow unlimited defense, but essentially reasonable conscience objections.  It creates the kind of test that a court would use if the actions of someone with religious scruples refused to provide some service to, say, a homosexual couple, the same kind one sees in the Federal RFRA.  So homosexuals can still ask to be served, but they might be refused, and if they then tried to use the government to enforce service, the test would come into play.  Yet, the critics have appeared in droves to hammer Indiana.  Perhaps the timing of the law was not exactly propitious, giving its opponents some extra ammunition.  But considering that many other states and the Congress also have such laws, their criticisms appear a bit overplayed.  It has even been pointed out that President Obama voted for a similar law in Illinois and that the Federal vote was 97-0 in the Senate.  All that aside, how can I defend this law.

It is simple.  My defense is predicated on legal grounds and theological grounds.  On theological grounds, even if we argue reasonably that one is not sinning if he/she serves, say, a homosexual, if that person believes it is sin, then for them it is sin (1 Corinthians).  Until or unless they are “fully persuaded” otherwise, their conscience must guide them, even if they are arguably the “weaker brother.”  A sincere religious conscience cannot be ignored.  Nor should a sincere conscience be compelled otherwise—unless there may be some overriding safety concerns that transcend religious issues.  So my theological conclusion is that such consciences should not be forced to violate their beliefs, especially when their beliefs cause no harm to others.  A homosexual couple may argue they were somehow “hurt” by refusal of service, but does that justify the coercion of service for the Christian (or any religious group), especially given the strong emphasis placed on religious freedom in the United States in the form of the First Amendment?  Toleration works two ways:  I tolerate another’s actions and lifestyle, even if I don’t agree, and they respect my beliefs, even if they don’t agree.  It strikes me as fundamentally opposed to toleration to coerce others to accept ones lifestyle to the point of violating my own sincerely and validly held beliefs.

Legally, the First Amendment concerns underlay this law, even though it is not directly involved.  The clause itself arose after a long history of controversy going back as far as the fourth century, when Christianity was legalized and other religions were at that time still tolerated.  In the later Theodosian Code, all religions except Christianity were declared illegal and Christianity adopted as the “state religion” of the Roman Empire.  Certainly that isn’t toleration.  But toleration finally came after many arguments, in our own First Amendment, the first document to give true religious toleration.  The Supreme Court has over the last two centuries interpreted that “free exercise” clause pretty broadly to include a very wide toleration.  Would we now advocate reversing that movement by coercing tacit agreement with what violates the conscience?  Now bear in mind, I am not making any argument as to whether I believe a Christian ought to serve homosexuals (or others with whom he/she has religious scruples).  My argument is that no legal compulsion ought to be permitted.  Whatever course a Christian takes, he/she ought to do so freely and voluntarily.  This goes for homosexual couples too. I do not compel them legally to abandon their lifestyle, but neither do I want them to force me to accept it if I have scruples.  And scruples are “lived out” in daily life, even in transactions.

Nor is this the same as racial discrimination.  First, to refuse service to one of another racial makeup is sin.  They are, plain and simple, human beings like me.  Second, the attribute that makes them a different, race, has nothing whatsoever to do with a lifestyle or decision to practice anything.  On the other hand, even if one concedes that homosexuality is “inborn,” one still makes a choice to put the tendency into practice (likewise, if I am attracted to women, I still make a choice not to commit adultery).  One cannot make the argument that one’s homosexuality is the essence of their particular personhood.  If they did not have it, they would still be fully human.  So if I exercise my religious scruples not to serve the homosexual, I am not violating his/her humanity. They are still human.  I have simply refused to endorse their actions which I am convinced are sinful and which I would believe myself to be participating (sinfully) if I did serve them.

Having said all this, do I agree with my colleague Mark Smith’s argument?  Yes, and within the scope of the actual argument.  He urged Christians not to refuse to serve homosexuals, as individual believers, and with the express goal of proclaiming the Gospel.  In essence he urged us not to claim our legal rights, though we possess them (at least insofar as this law allows).  That argument is compelling.  But my argument is legal and theological and does not conflict with his.  The state should never compel a conscience for sincerely religious reasons.  At the same time that conscience can “change its mind” with further Scriptural teaching and become “fully persuaded” that one may advance the Gospel without sinning by serving homosexuals.