Betraying Bias: Time to Update PCUSA Social Witness Policy on RFRA

You can safely assume you’ve created God in your own image when it turns out that God hates all the same people you do.

-Anne Lamott

A clarification of PCUSA social witness policy is in order at next year’s General Assembly after the recent passage of Indiana’s Religious Freedom Restoration Act (IRFRA), which opens the door for religious protections for anti-LGBT discrimination. PCUSA has long supported both religious liberty and civil rights; we must stand firm in both traditions and put to rest this manufactured conflict that cheapens claims of conscience and allows religion to be used as a false excuse for mistreating one’s neighbor.

The Presbyterian Church (USA) has fiercely defended religious liberty and the separation of church and state for decades. In 1961, the southern PCUS General Assembly declared that the governing body “is completely in accord with the principle of separation of Church and State, and urges all members to be alert to legislative bills which violate the above principle and to be zealous in communicating with their legislative representatives to express their feelings” (80). In 1963 the northern UPCUSA “redeclares its conviction that church and state must be organically separate… “because organic entanglement of church and state inevitably deprives men and women of the full exercise of [religious] freedom” (185-197).

Building on decades of social witness policy, the PCUSA joined many other religious groups in vociferous objection to the 1990 Supreme Court decision upholding the Oregon Employment Division’s denial of unemployment benefits to someone fired for using peyote during a religious ritual. One of the responses to this decision was that the PCUSA’s Washington Office helped develop and advocated for the federal Religious Freedom Restoration Act (RFRA), passed by Congress in 1993.

That’s right, the PCUSA was very much in favor of the federal RFRA, along with such varied groups as the ACLU and the Traditional Values Coalition.  When the federal RFRA was found by the Supreme Court not to apply to state and local governments, the 210th General Assembly (1998) doubled down, reaffirming the 1988 PCUSA statement on religious liberty (555-572) and calling presbyteries, synods, and congregations to advocate for state-level RFRAs “that restore the Compelling Interest/ Least Restrictive Means Test, that contain a broad definition of `exercise of religion,’ and which provide for the protection of the religious practices of all persons” (472-473).  In 2002 the General Assembly again affirmed the pursuit of such laws at the state level.

While moving aggressively for these rights, the denomination also maintained crucial internally imposed limits. The 1988 statement, “God alone is Lord of the Conscience,” includes admonishment against hiding frivolously behind religious liberty: “Claims of Christian conscience should not be lightly or cynically made, and should be tested to the maximum extent possible by the counsel of the Christian community.” Are we living up to this standard? Is the Christian community testing claims of conscience by florists, cake bakers, and restaurant owners refusing service to LGBTQ people in places of public accommodation?

Presbyterian social witness policy has an equally robust, decades-old record opposing discrimination on the basis of sexual orientation. In 1978, the UPCUSA General Assembly declared, “There is no legal, social, or moral justification for denying homosexual persons access to the basic requirements of human social existence” and called for Presbyterians “to work for the passage of laws that prohibit discrimination in the areas of employment, housing, and public accommodations based on the sexual orientation of a person” (265-266). The 1993 General Assembly “unequivocally condemns all discriminatory legislation” (118-119) including  Colorado’s Amendment 2 and discrimination against gays in the military (926). In 2008 PCUSA members and representatives were called upon “to urge state legislatures and the federal government to apply the principle of equal protection to same-gender couples and their children” (48-29; 258-259).

So how are we to interpret Presbyterian social witness in light of the Indiana law? Does religious liberty include the right to harm others through discrimination on the basis of sexual orientation, gender identity, or other category?

Ontario Consultants on Religious Tolerance offer a history of federal and state RFRAs, noting  that some legal scholars argue that RFRA actually undermines separation of church and state by creating preferences for religion, and that after RFRA went into effect, there was an increase in requests for religious exemptions  from organized hate groups like Aryan Nations.

Some of the groups that joined PCUSA in advocating for RFRA, notably Americans United for Separation of Church and State, condemn current uses of RFRA to infringe on others’ rights, and are now calling for changes to the federal law as well as opposition to the new “super-RFRAs” like the one passed in Indiana, arguing that they contain

broader language than the  federal RFRA, making their meaning uncertain and their consequences even more far reaching.  As compared to the federal statute, these `super-RFRAs’ greatly reduce the burden necessary for an exemption and heighten the compelling interest needed by the government to justify its action.  This could potentially ensure that anyone claiming a religious burden—no matter how small, and no matter who else’s rights will be infringed—will get an exemption from that particular law.  With this broad language, super-RFRAs might be used to justify almost any type of discriminatory action.

With similar proposals in 15 states, this issue is not going away anytime soon. It is time for the General Assembly to speak once again to religious liberty and civil rights, and witness to our current time how a firm wall between church and state enables mutual respect for others’ rights, both religious and secular, in the public sphere. Presbyterians can agree that government has a “demonstrated compelling state interest” in prohibiting discrimination. As observant religious individuals, we must discern the difference between true religious freedom and faith-based pretext for prejudice.

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