THE BLOG

Thank You, Bobby Jindal!

04/28/2015 07:09 am ET | Updated Jun 28, 2015
Tom Williams via Getty Images

In a New York Times op-ed (April 23), Louisiana Governor and former GOP wonder-boy Bobby Jindal did his best, full-throated Tom Petty imitation. "I won't back down," Jindal effectively told the nation. Not when it comes to facilitating discrimination against gay people, no, he won't back down.

The proximate cause of Jindal's rant was the capitulation he sees in Indiana and Arkansas to the "bullying" by an unholy alliance of "left-wing activists" and "large corporations." They forced (apparently spineless) politicians to water down "religious freedom" bills in both states, and Jindal wanted us all to know that he will stand firm against what he called "radical liberals" -- though I have no idea what that phrase means.

At one level, Jindal's essay is almost bizarre -- a sloppy combination of faulty reasoning, self-promotion and aggrieved whining. But Jindal has also inadvertently clarified what's really at stake in this recent flare-up over "religious freedom." The problem is only secondarily about homophobia, though that's what most people have focused on. The primary problem here is what people like Jindal believe constitutes "religious freedom" in the first place.

In a country where the freedom of religious worship is a bedrock principle, where a sizeable majority of citizens believe in personal angels, and where the Bible is routinely cited by major politicians to dismiss scientific evidence (keep praying that rising sea levels won't eat up more and more of the Louisiana coast Governor Jindal!), one could be forgiven for thinking that religious freedom in all its mischievous multiplicity was alive and well.

But not so these right-wing religious activists. Their drive to "restore" (that's usually their term, as if something had been taken away) religious freedom began in 1990 with the Supreme Court ruling in the case Employment Division v. Smith. In that case the Court ruled against a Native American group seeking an exemption from an Oregon law prohibiting the possession and distribution of peyote despite the fact that peyote was part of the group's religious ceremony.

Writing for the Court's majority was none other than the deeply conservative and deeply religious Antonin Scalia. Even Scalia, therefore, re-affirmed a long-held Constitutional principle that religious belief cannot trump the law of the land. To allow otherwise would "permit every citizen to become a law unto himself." Indeed, Scalia was actually quoting an 1878 Supreme Court precedent.

Religious activists, upset since the 1960s at what they see as the growing and pernicious separation of church and state, seized on that ruling to press Congress to pass The Religious Freedom Restoration Act in 1993 -- and a spate of state versions of it have been passed subsequently. In this sense, Arkansas and Indiana were only playing catch-up with their recent bills.

But the fights over the potential persecution of faith-based florists being forced to deliver centerpieces to a gay wedding have obscured the expansion of what "religious freedom" means to these zealots. What they insist on is that their religious faith must be permitted to inform their actions beyond their own homes and places of worship. In effect, they argue, their freedom gives them the right to impose their religious beliefs on other people even if the action involved violates the law.

How do we avoid precisely what Scalia (and a host of other judges) feared? That every religious person would "become a law unto himself?" Here's where the Court's appalling Hobby Lobby decision comes into play. In that ruling, the Court not only allowed corporate persons to have a religion but permitted those corporate persons to be exempted from Federal law if that religious belief was "deeply held" and/or "sincere." The Court thus created a huge space for new religious exemptions to all sorts of laws. Which is exactly what many of these religious activists want.

Jindal picked up on both aspects of Hobby Lobby in his op-ed screed. Trumpeting his support of the "Marriage and Conscience Act," currently in the Louisiana legislature, Jindal described its purpose as prohibiting the state from taking an "adverse action" based on "the person or entity's religious views on the institution of marriage." Note the addition of "entity." That means corporate "people" along with the bipedal kind as the Court has now allowed. Likewise, Jindal invoked "deeply held religious conviction" and "sincerely held religious belief" in his essay and added a reference to those "who live their faith" as what needs to be protected.

That clarifies matters, doesn't it? All we have to do is measure a person's (or corporation's) depth of religious feeling, figure out whether it meets the legally defined sincerity threshold, and then we can distinguish between people (or corporations) who deserve religious protection to practice discrimination and those who don't.

In fact, of course, the legal standard being articulated by the Court and picked up by people like Jindal is utterly fatuous and entirely unworkable. It essentially asks courts to peer into people's souls and to parse theological issues, not to judge actions and evaluate law.

So even while public support for same-sex marriage has grown swiftly and decisively, the forces of the religious right have countered by trying to expand what counts as religious freedom and where it can be applied. Think of the results as a subtle and dangerous prepositional shift: Their freedom of religion will necessarily shrink our freedom from religion.

Steven Conn will be the W. E. Smith Professor of History at Miami University in Oxford, Ohio in the fall. His most recent book is Americans Against the City: Anti-Urbanism in the 20th Century.