The RFRA: Relying on Law to Mediate Social Differences

This op-ed derives from an earlier blog post, which has less structure and links to tons of resources. 

Thanks to Craig Ladwig at IPR for improving (greatly) on my chosen title. 

And note that the two paragraphs or so, marked in blue italics toward the end, were excised from the in-print versions-- to reduce the word count and the snarkiness/preachiness of what is a sensitive topic. I think those words and sentiments are fine, as is, but people haven't been all that rational in this "discussion", so it's better safe than sorry-- at least in more public media. 

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Let’s start with a riddle: What federal legislation was incredibly popular 20 years ago, but created a firestorm when Indiana passed a similar law last week? If you’ve been paying attention to any media, the answer is obvious: the Religious Freedom Restoration Act (RFRA)! 

Agitation and confusion over the law’s intent may lead lawmakers to tweak it. But for now, what can we say? (It’s beyond the scope of this essay, but for help on the legal aspects, I’d suggest reading Dan Conkle, Kevin Duffy, or Eugene Volokh.)

First, depending on the comparison, 19 or 30 other states have similar laws, including “liberal” states like Rhode Island and Connecticut. So, why the furor here and now? On the one hand, opponents look silly since the fervent concerns are new. Why would this law be discriminatory in Indiana, but not in other states? Why did President Obama vote for legislation like this when he was in state government? Why would the mayor of Seattle and the governor of Connecticut want to boycott Indiana when their own states have the same sort of law?

On the other hand, it tells us that context matters. Indiana’s law was passed in the wake of the recent tumult over “same-sex marriage”. And so, passage of the RFRA has been interpreted by some people to be focused simply on “gay rights”. (How quickly we’ve forgotten the Hobby Lobby case!)

Second, the state laws are based on a Federal law passed by President Clinton and a strongly Democratic Congress in 1993. Of our 538 legislators, only three Senators voted against it! The law was introduced by Chuck Schumer (D-NY), probably the next Senate Minority Leader.

As Schumer, Obama, Clinton, and thousands of other politicians are pressed by journalists, it will be interesting to hear them explain how the 1993 effort was glorious, while the 2015 law is evil.

Third, it's not clear how much of this is political posturing. If you're posing, please stop. You're part of "the problem". If you're responding to posers, you might want to take a deep breath. (Stephen Warner has a terrific blog post on this angle. He argues that the bill “says nothing and means nothing”, given its vagueness. And he notes that neither "discrimination" nor anything about sexuality appears in the RFRA.)

Let’s turn from observations to some basic questions. First, what are the practical concerns with such laws? These are complex issues—and it is difficult to write laws in a way that deals with all contingencies. (The likely effort to revise the bill speaks to this reality.) Moreover, this law will not operate in a vacuum; there is a stable of relevant laws that strive to limit discrimination and balance competing interests.

Second, a more important question: Why is it ethical to force business owners to serve people? The strongest answer is that we don’t want some people to impose direct and significant harm on others, especially when the harm is larger. But this remedy is problematic when the use of force itself causes direct and significant harm. If an owner refuses to produce t-shirts for a racist group, the group members are harmed, but forcing the owner to make the shirts will cause harm as well.

Third, why is it alright to force business owners to serve certain people, but only in some, politically-correct contexts? Should an owner be forced to serve customers who are legally carrying guns? Should a homosexual store owner be forced to decorate a cake with Romans 1:26-27? Should a Catholic school be forced to hire non-Catholics or teach doctrine that contradicts their beliefs? Should the Affordable Care Act have tried to force Hobby Lobby and other companies to provide insurance for morally-troubling abortifacients?

In this light, the larger issue is an over-reliance on law to mediate social differences. Or putting it another way: Can’t we all just get along? My family and I visited Selma again last week. But today, we’re not talking about systemic, massive abuses of civil rights by the majority population—as with racial problems, 50 years ago in the South. The current complaints are centered on the occasional landlord, restaurant owner, photographer, or baker.

This should be especially easy to understand for self-styled "liberals" who promote themselves as "pro-choice", tolerant, and empathic. Christians should do well here too: a call to high moral standards while practicing robust forms of tolerance and love.

What do we have now? Partisan TV viewers, “Facebook lawyers” cheering for their team, and a bunch of children playing “gotcha”. A same-sex couple wants to bully a conservative Christian into decorating their cake. A shallow Christian wants to sue a gay man who doesn’t want to make an offensive t-shirt. It reminds me of a kid with a magnifying glass torturing an insect. Put down the magnifying glass of litigation and act like an adult.

Instead of relying on the law to address these things, how about we just grow up a little bit? Recognize that people won’t always agree with us—sometimes on profound matters—and some will even try to hurt us. When we encounter those people, fight back if you must. But more often than not, try to empathize, practice a robust form of tolerance, pity them if it’s vital to you, and just move along with your life. 

nine tips for running an effective Christian small group discussion

Let's start by defining some of the terms. 

1.) "Effective" depends on your goals. My goal is to make disciples and disciple-makers-- disciples who can make disciples. So, what are your goals and how can a small group discussion be most effective in promoting these goals?   

2.) Likewise, "Christian small group" implies something beyond merely social, but it also includes a significant social element. A "Christian small group" also implies a significant study piece-- whether book or video, whether a book of the Bible or a book by a Christian author (or a secular book studied from a Christian perspective). 

3.) "Small group" is anything between, say, 2-100 people, but more likely in the 5-60 range. The first of two huge barriers to effective discipleship is getting people to move from a large group format (e.g., worship service) to a small group format. 

4.) There's far more to an effective small group than simply the discussion! In terms of making disciples and disciple-makers, it is crucial to reach both head and heart, to convey knowledge and to model behavior, to love and serve people within the group in addition to teaching and exhorting them, and so on. 

One quick exhortation here: Learn people's names within the first meeting-- or before you meet them if possible. Take pictures, study their names, pray over your group members. In a group of modest size, there is NO excuse for not knowing their names after you've met them once. 

So, in a word, my comments are aimed at the discussion piece of a small group that intends to build up disciples and disciple-makers. 

1.) Encourage them to do something more than just show up. The second (and most over-looked) barrier to effective discipleship is "moving past passivity", especially passivity outside the group meeting. In lighter groups, "homework" should be encouraged. (For example, if you're covering John 9, encourage them to read it multiple times that week and to journal about it.) In heavier groups, homework should be required. (This link offers some meatier short-term studies; this link describes DC: Thoroughly Equipped-- our "capstone course" for "higher-end" discipleship and lay-leadership development.) You simply can't progress quickly if you don't put time/energy into your own discipleship. Just showing up to hear a bunch of sermons or even an excellent small group teacher is far from sufficient for even modest growth. 

2.) Less of you / more of them. Get group members to talk as much as possible. It's less boring and they'll take greater ownership in their faith and the process of discipleship.

3.) Get comfortable with silence. Wait for them to answer; be patient. Take a breath-- and then re-word the question if necessary. If you wait, they'll (almost always) say something useful.  

4.) Aim for balanced talking among group members. In more elementary groups, this should be a goal. In more advanced groups, insist on it. Encourage quiet people to speak-- and then encourage them when they have spoken. Privately or publicly, encourage more talkative people to take it easy and pick their spots. This allows more room for the quieter folks. And it allows the talkers to work on skills they need to develop: listening, patience and empathy. In a word, I'd rather have a mediocre nugget from a quiet person than one more strong comment from a big talker. 

5.) Ask lots of (good) questions. Emulate Jesus, who asked 301 recorded questions in the Gospels. (I taught a series on this if you'd like the notes.) Avoid yes/no questions. Avoid questions with obvious answers or regurgitations of what they've just read. As useful, write out questions beforehand. 

6.) Be careful with the length and type of your replies to their responses. Use non-verbals as much as possible; you don't need to say something every time. Use verbal replies that vary from quick affirmation to lengthy engagement. It is common for leaders/facilitators to talk too much after too many comments from group members. Avoid this temptation. Remember: every minute you talk, you're not allowing them to talk and "find their voice".

7.) Avoid tangents. You have more important things to cover, right? Limit their tangents tactfully. (Have a public or private discussion about this if useful.) And you should rarely if ever create tangents. Don't cause trouble you're trying to prevent-- and don't be in the business of modeling the creation of tangents!

8.) Organize your notes effectively. Experiment until you find a system that works well-- and then continue to tweak it. It's common for people to have too much stuff in their notes. The good news: it's all in there; the bad news: you can't find it easily. Try a basic outline format with indents for sub-points. Try single words, phrases and clauses, instead of sentences. Only use sentences for things that you need to word carefully or when you're using a quote.  

9.) Make a schedule. First, publicly commit to a start time and at least an approximate end time. Have a rough timeline for what you hope to cover in a given time frame (e.g., Eph 1:3 from 7:15-7:30). Generally stick to the schedule, but be flexible as you learn how to do this well-- and after that, as the Spirit leads you to adjust. 

Other ideas? 

Indiana joins the gang: the new "Religious Freedom Restoration Act"

Before I invested some time in the particulars of Indiana's new Religious Freedom Restoration Act (RFRA), here's what I wrote:

I don't know if I'm going to bother with a lengthy weigh-in about the brouhaha on Indiana's (in)famous new law. But here's what I'll say for now:

Good luck to anyone who wants to a.) write legislation on "discrimination"; or b.) critique that legislation in a way that's coherent.

I haven't studied A yet in this context (enough to form a useful view of that matter), but I've seen a bunch of ugly stuff in category B on FB.

Now that I'm making an investment and trying to write something more specific, I should probably open with this caveat:

Good luck to anyone (me!) who wants to c.) write about legislation on "discrimination" and critique those whose criticisms are largely incoherent.

The law may get tweaked in the coming weeks. (For some strong analysis of the current law and discussion of prospects for change, see: this WSJ article [and google the title if you can't access it straight-up].) And it's amazing/sad that the proponents of this did such a poor job "selling" this and "responding" to the concerns/questions. (Pence has since penned a useful essay for the WSJ.) So, at least for now, what is useful to say, questions to ask, etc.? 

A few observations: 

-This WaPo author makes two useful observations: 1.) At least 19 other states have laws like this. (This WSJ article says "some 30 states".) Perhaps it's fortunate that Indiana's actions have finally awakened the outrage, but it makes the excited opponents look silly since it's the first time they've raised the concern. And why would they argue for discrimination vs. Indiana but not the other 20-30 states?

-WaPo point #2: The state-based laws are similar to a Federal law passed by President Clinton in 1993. The Weekly Standard notes that it passed the Senate by a 97-3 vote and was co-sponsored by soon-to-be Senate Minority leader, Chuck Schumer. They also explain the potential need for state-based laws, given a 1997 SCOTUS decision. (Scott Shackford at Reason discusses the same incoherence.) In a word, consistent outrage is difficult/impossible here-- and the sudden awakenings (most notably, by Hillary Clinton and Chuck Schumer-- who have, so far, refused to clarify why they supported it years ago) are somewhere between amusing and pathetic. 

-The WSJ article also makes a point to which I alluded above: "The law covers a relatively complex issue-- setting a legal framework for those who claim a government rule or requirement is hampering their exercise of religion." Examples include long hair for religious reasons vs. a dress code. In each of these cases, we have the tension between individual "rights" (when do my rights conflict too much with yours) and individual vs. community preferences as codified (well?) by law. 

-Here are two useful resources on the legal side of things: a thorough post from Kevin Duffy and a nicely-done "resource page" and FAQ from Indiana's House GOP. (On the latter: yes, I recognize that they might be trying to justify themselves, but read it for yourself and report back with your critiques.) Update: This from Joe Carter seems helpful as well, including the factoid that the 1993 law passed unanimously in the House. Eugene Volokh weighs in here, with more legal analysis. See also: Doug Masson's comments. And then, maybe the most important piece-- by law professor and "a supporter of gay rights", Dan Conkle. 

-It's not clear how much this whole thing is related to law vs. mere posing-- on both sides. If you're into posing, please stop. You're part of "the problem". If you're responding the posers, you might want to reconsider your angst, since it's not good for your look. Here's a terrific blog post by Stephen Warner on these points (and more). In addition to arguing that the bill says nothing and means nothing (given its vagueness), he provides links to the actual (two pieces of) legislation and notes that neither "discrimination" nor anything about sexuality appears in the laws.  

-Here's a beauty from the CEO of SalesForce, Mark Benioff, focusing on Indiana over the other states with the same law and comparing China's human rights record with Indiana's. 

To the stated concerns, here are some basic questions-- all of which have decent, if not consistent, answers: 

-Why do we want to force business owners to serve people? 

-Why do we think it's ethical to force business owners to serve people? 

-Why do we think it's practical to force business owners to serve people? 

But then the questions get tougher:

-Why do we think it's ok to force business owners to serve certain people, but not other people? (See: Christians with the ACA and abortifacients, gun-toting customers, some cakes or t-shirts but not others.) Mollie Hemingway provides a sample/list of 10 (highly sympathetic) people who have been helped by RFRA's. 

-Why are "liberals" who consider themselves "pro-choice" ok with not allowing choice here? (The best coherent answer is that the discriminators are doing direct and significant harm to others.) 

-How do we have high standards for ourselves while practicing robust (vs. tepid) forms of tolerance, love, and compassion? 

-Why do people imagine that "right-to-work" laws will NOT be good for Indiana's economy (by attracting business)-- while a law like this (even under the most stringent assumptions-- aside from the brouhaha created) will cause significant economic damage. See also: a higher minimum wage will not create unemployment. Of course, the extent to which the cause will have an effect is debatable. But it's not a good look to totally deny the one and go crazy about the other. 

-UPDATE: For another nice set of questions, see this strong essays in the NYT from Ross Douthat. I have another from the IPR's Tom Huston.

I planned to comment on some of the comments out there. But that would take too long; some people are too blind; and I don't want to embarrass anyone when casual political observers who are throwing mud (without recognizing what they're doing). Instead, I'll settle for responding to this quote/meme from George Takei. It's good, but not as applicable as he imagines for this context: "If you have to make laws to hurt a group of people just to prove your morals and faith, then you have no true morals or faith to prove." Of course, that's not the purpose of the law-- let alone, the single purpose of the law. Or perhaps we could apply Takei's quote to those on the Left who want huge taxes on those with higher incomes-- or who are fond of using legislation to mess with all sorts of people.  

Along the same lines, let me close with two paragraphs I took out of the op-ed I penned on this (it appeared here on-line first). They tended toward preachy and snarky, so I decided to take them out of highly-public discussion, without the context of my blog to help out. 

This should be especially easy to understand for self-styled "liberals" who promote themselves as "pro-choice", tolerant, and empathic. Christians should do well here too: a call to high moral standards while practicing robust forms of tolerance and love.

What do we have now? Partisan TV viewers, “Facebook lawyers” cheering for their team, and a bunch of children playing “gotcha”. A same-sex couple wants to bully a conservative Christian into decorating their cake. A shallow Christian wants to sue a gay man who doesn’t want to make an offensive t-shirt. It reminds me of a kid with a magnifying glass torturing an insect. Put down the magnifying glass of litigation and act like an adult.

Instead of relying on the law to address these things, how about we just grow up a little bit? 

Ravitch's "Reign of Error"

A colleague/friend of mine recommended Diane Ravitch's Reign of Error. 

Education reform is not high on my reading list these days, but I appreciate book recommendations and Ravitch has been a big stick over the last two decades-- so she's certainly worth a look.

I read the first chapter. So far, it's a dog's breakfast of useful stuff, exaggeration, conflation, strawmen, and blech.

The most notable, quick problems: she...
a.) pounds liberals and progressives (broad categories!) without defining which subsets she's attacking: 
b.) says that private and charter schools are "deregulated, unsupervised, and accountable"; 
c.) implies that choice necessarily (or likely) undermines democracy; 
d.) ignores that the status quo is deeply unequal; 
e.) conflates NCLB with charters/vouchers; 
f.) is apparently allergic to for-profit involvement; 
g.) seems to think that our probs in education are largely inner city; 
h.) ignores family structure/stability in her correct reference to important variables other than schools; 
i.) conflates charter and voucher in terms of "privatization"; 
j.) acts as if we've had a ton of market reform; and 
j.) tells us that we're not in crisis, but if we pursue even a bit more market reform (as if we've had a ton already!), then it's akin to a train going off of a cliff.

All that said, the book is probably worth sifting through the chaff to get some wheat. But I'm not sure whether I'll get to it soon...