03:24 - Source: CNN
How Indiana will 'fix' controversial law

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There is an avenue out of the absolutist debate about gay rights and religious freedom, writes Nathan Diament.

Consider an arena just as controversial as gay rights -- access to abortion, in which states have been able to reach stable compromises, Diament writes.

Editor’s Note: Nathan Diament is executive director for public policy at the
Union of Orthodox Jewish Congregations of America. The views expressed in this column belong to Diament.

CNN —  

The tension between laws that protect religious liberty and those that prohibit discrimination against gays is the culture war battleground of the decade. The recent enactment of Indiana’s “Religious Freedom Restoration Act” is but the latest flashpoint for this ongoing clash.

Once again, as they did in Arizona last year, gay rights proponents are portraying the religious liberty law as going too far and giving those who object to homosexuality a “license to discriminate.” Those supporting the law point to expanding legal recognition for gay marriage, and more. They argue the law protects them against the state coercing them to violate their faith at the penalty of sanctions.

Both sides have a mixed record of wins and losses (the Arizona RFRA was defeated and the Indiana RFRA was passed) and what the state RFRA would actually permit is the subject of mutual misinformation. The two sides have jointly succeeded in portraying the choice as a “zero sum game.” Either we expand gay rights while trampling on the conscientious objections of Americans of faith, or we protect religious liberty and consign gays to unequal treatment.

There is, however, an avenue out of this absolutist debate, consistent with principles of mutual respect and compromise and fundamentally aligned with the American notion of fairness.

American law should protect the rights of individuals on both sides of the issue through individual religious conscience accommodations alongside the requirement for most companies and other places of what the law calls “public accommodation” to provide goods and services to anyone legally entitled to them. (Different rules for religiously run nonprofits and small or closely held businesses must also be developed, but they, too, already exist in law.)

Some states, and by no means only “red” ones, have laws under which an employer must accommodate the religious needs (including conscientious objections) of employees, so long as doing so does not interfere with the employer’s ability to provide the service or product it wishes to and the customer can obtain their service elsewhere.

Consider an arena just as controversial as gay rights – access to abortion.

Under current law, women have a clear right to obtain an abortion. Of course, there are many health care professionals who, for reasons of conscience, do not wish to participate in an abortion procedure. Many states have laws addressing such a scenario. Massachusetts law, for example, provides that a nurse’s employer must allow her to opt out of being on the medical team for an abortion procedure, so long as another nurse is available and it is not an emergency situation. Thus, the rights of individuals on both sides of this ethically fraught issue – the nurse not wanting to be an abortion provider and the woman legally entitled to receive that abortion – have each of their needs and rights addressed by the law.

There are a host of other scenarios in which society does (or should) protect the conscientious objections of one individual, while ensuring another enjoys his or her legal rights. Physician assisted suicide laws in Oregon and Washington ensure that no individual pharmacist may be compelled to dispense a lethal prescription, but that the person entitled to it may access it elsewhere.

Attorneys (even prosecutors) in various states are not compelled to work on death penalty cases, and some state laws would permit a factory worker with a pacifist faith be accommodated and not be compelled to work on a military project if his employer obtains a Pentagon contract.

The common denominator in all these cases and more is that we can have a set of laws under which individuals’ religious liberties are protected while the rights of others to access lawful goods and services are simultaneously guaranteed by our system of law. The question of the moment is whether zealous advocates for various causes, and our politics, can actually produce such a balanced outcome where the result is not “winner-take-all?”

A decade ago, a broad coalition of religious and civil liberties groups tried to move federal legislation (co-sponsored by Sens. Rick Santorum and John Kerry!) that would have amended the federal Civil Rights Act to strike just this balance. A significant reason the Workplace Religious Freedom Act was stymied was because some advocacy groups were not willing to concede that conscientious objections with which they disagreed were entitled to any legal recognition.

Today, in Indiana and Georgia and other states, we can continue to fight the zero sum game and wait to see which side can pummel the other into submission. Or we can try to find the middle path which respects Americans’ diversity of conscience and indeed seek to let all our citizens pursue happiness.