May 4 2015 07:48 PM

A solution to the Religious Freedom Restoration Act problem

Ed Decker

It truly hurts my gonads to agree with the religious right about anything, but I take their side regarding the Indianapolis gay wedding cake denial debacle, and a spreading piece of legislation known as the Religious Freedom Restoration Act (RFRA).

The gay wedding cake kerfuffle happened in 2014, when an Indianapolis baker refused to make a cake for a gay couple, so as not to violate her religious beliefs about gay marriage. A national backlash followed and—fearing the government would take legal action—the religious right pushed for, and got, the Indiana RFRA law, which stated "a governmental entity may not substantially burden a [party's] exercise of religion ...  unless [for] a compelling governmental interest." 

Though the passing of the Indiana law drew much contempt from the left, it was not the first installation of an RFRA law. Before that, 20 states passed similar versions, protecting a smattering of other Christian wedding industry businesses—florists, photographers, preachers, etc.—who denied service to gay couples. 

Before that, there was the infamous Hobby Lobby lawsuit, which cited RFRA in order to avoid providing its employees insurance coverage for the morning-after pill. And while it's understandable that the LGBT and pro-choice communities fumed over this legislation, it should be noted that in 1993 President Clinton signed the original, federal, version with a ton of support from the left. This is because it wasn't about LGBT discrimination or a woman's right to choose, but rather, the right of Native Americans to consume peyote as prescribed by their faith. 

Regular readers of Sordid Tales know that I am a separation-of-church-and-state loving, shit-talking, agnostic, heathen blasphemer who would rather see a framed Mapplethorpe gay bondage photo series in the lobby of an elementary school than the Ten Commandments. So why would a person who holds such contempt for organized religion be in favor of something called the Religious Freedom Restoration Act? It comes down to the ancient debate over whether the founders wanted us to have freedom "of" or freedom "from" religion. Fundamental Christians say we have freedom of religion. Fundamental atheists say freedom from. The truth is, we have both. 

It would be impossible for individuals to follow their faith (aka freedom of religion) if we did not also have the right to opt out of the majority or—God forbid—state-sponsored faith (aka freedom from religion). Agnostic blasphemers like me know our right to abstain derives from the same freedom-of / freedom-from relationship. This is why—though it pains my gonads to say—if you are someone who believes that an invisible man who lives in the sky thinks it's immoral for men to treat each other's anuses like amusement parks, and that condoning such behavior will result in a one-way trip to the place where demons sip martinis made out of your liquefied organs, I'm not inclined to force you.

And yes, there is little doubt that most of these gay wedding cake refusers are—like Monty Python's limbless, bloody Black Knight yelling after King Arthur to "Come back and fight,"—the last, desperate deniers of the inevitable mainstreaming of queer. 

Nonetheless, there are two critical clauses of the Constitution at odds here: Equal Protection and Free Exercise (of religion). Both of these clauses are equally beloved to me; however, the reason I side with Free Exercise in this case is because I err in favor of less government overreach. And that is exactly what RFRA is designed to do—to keep government from interfering with how people choose to worship their invisible friend in the sky. 

That said, I am not in favor of allowing this RFRA-protected LGBT discrimination crap to run amok. That's why, when I am king, I will rewrite the law so that it includes two important words: "Condone" and "Participate." 

The new law will be called DECKERFRA (Decker's Excellent Compromise and Key to Really Fixing the Restoration Act), and the amendment will say that you can only be protected if it can be reasonably determined that, by providing the service, you are either condoning and/or participating in the activity that offends your religion.

Take the wedding cake deniers. Providing a wedding cake is clearly not condoning or participating in the wedding, and therefore not protected by DECKERFRA. The same goes for a florist. On the other hand, a preacher performing an LGBT wedding ceremony is at least participating and probably condoning to boot. Hobby Lobby would also be protected, because financing birth control is definitely participating and condoning.

I know what you're thinking. What if a business wanted to use DECKERFRA to deny service to African Americans? Great question. And here again, I favor free exercise. Let's say a preacher from a racist religion—let's call it Prejudaism—uses DECKERFRA to deny marrying a black couple. Well, as long as the preacher can prove to the court that Prejudaism is a bona fide religion and that the Book of Prejudaia has some cockamamie racist scripture like, "Lo, did our lord, The Pale Father, look down from his kingdom atop Mt. Crackawood and say to the dark people below, 'Y'all scare the fucknuts out of me!'" well—gonads be goddamned—DECKERFRA would protect him too.

Of course, none of this means we still can't boycott, ostracize and just plain-old publicly call bullshit on his horseshit. We should mock all their bigoted buttocks back to the middle ages. Sounds like a plan to me. 

Write to and Edwin Decker blogs at Follow him on Twitter @edwindecker or find him on Facebook.

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