Dahlia Lithwick on the legal strategy behind Christian Right "religious freedom" laws

Dahlia Lithwick looks at the political/legal strategy behind the Christian Right's new favorite device to promote discrimination, the so-called "religious freedom" laws, in Complicit as Sin Slate 04/09/2015.

She explains laws that respect a person's right to their own religious beliefs are qualitatively different that laws that protect people from doing something that someone else might use to do something that the first party thinks is sinful. Thus, the title of the article.

Indiana Gov. Mike Pence defended his state’s RFRA [religious freedom restoriation act] as recalibrating the balance of civil rights and “religious freedom.” But these are simply not your father’s religious liberty claims. As [Doug] Siegel and [Reva] NeJaime note, the claim here is not that a religious individual is being forced to do something that violates his religion, such as shaving his beard; it is that he must be free from endorsing or enabling the behavior of others who are engaging in what he sees as sinful behavior. This was the central claim of the employers who sued in Hobby Lobby. They argued that it was itself sinful to provide health coverage to employees who might then use those benefits to engage in ostensibly sinful conduct. This is the same argument as the business owner’s claim that frosting a cake or arranging the calla lilies for a same-sex wedding is an act of “complicity” in a union that the business owner deems sinful.

Why does this matter? Because as Siegel and NeJaime argue, the new religious objections affect bystanders, ordinary folks in the greater community. These “third parties” are just people (often marginalized people, like gay couples or women seeking birth control) whose beliefs and values are not shared by the religious claimant. The authors point out that these new complicity-based religious conscience claims may well be authentic and sincere, as were the religious freedom claims originally contemplated by Congress when it drafted and passed the RFRA in response to a Supreme Court decision that declined to protect the religious freedom of Native Americans seeking to use peyote in a religious ceremony. But the new RFRAs may hurt third parties in ways these earlier state and federal RFRAs never quite imagined. The intent of this new article is to consider why. [my emphasis]

The Seigel and NeJaime article she references is Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics Yale Law Journal Vol. 124/2015 (02/08/2015).