Periodically CSRES invites notable scholars and newsmakers in the field of Religion, Ethics, and Society to reflect on a topic and contribute a piece to our forum.

SUMMER 2015 



In this issue:

"What Happened in Indiana? Did Religious Freedom Jump the Shark?" - Winnifred Fallers Sullivan, Professor and Chair of Religious Studies, Indiana University Bloomington

"At Least Do No Harm: How Propagating a False Image of Indiana Works against Progressive Aims while Serving Greedy and Self-aggrandizing Interests" -  Jacob Boss - M.A., Ph.D. Student, Department of Religious Studies, Indiana University Bloomington

"Democracy Is Coming to the RFRA, or, There’s No Such Thing as Religious Freedom … and It’s a Good Thing, Too" - Steven Alan Carr. Associate Professor of Communication, Indiana University-Purdue University Fort Wayne

Liking” Away Diversity:  Social Media Reality and How to Prepare Citizens for Discourse in the Heated Arena of Polarized Political Stance" - Erin Parks, MPA student, School of Public and Environmental Affairs, Indiana University Bloomington; concerned but hopeful citizen.

Previous forum topics:

"What Happened in Indiana? Did Religious Freedom Jump the Shark?"

Winnifred Fallers Sullivan - Professor and Chair of Religious Studies, Indiana University Bloomington

photo of Winnifred SullivanNote: This post is a revised version of a talk given at the University of California at Santa Barbara on April 30 2015. Parts of this blog post are adapted from publications in which I have written at greater length about these cases: The Impossibility of Religious Freedom. Princeton: Princeton University Press (2005); Prison Religion: Faith-based Reform and the Constitution. Princeton: Princeton University Press (2009); “The World Smith Made” in Winnifred Fallers Sullivan, Elizabeth Shakman Hurd, Saba Mahmood, and Peter Danchin, eds., Politics of Religious Freedom. Chicago: University of Chicago Press. (2015) ; and "Being Human: Negotiating Religion, Law, and Science in the Classroom and the Courtroom" in Elizabeth Mertz, William Ford, and Gregory Matoesian, eds., Translating the Social World for Law (New York: Oxford University Press, 2015).

As Americans we are brought up to believe in religious freedom. It is something we share across the political and religious spectrum. Indeed we all believe that we invented religious freedom, that we enjoy more and better religious freedom than anyone else, and that we should promote religious freedom abroad so as to save everyone from themselves. This is bedrock in the American faith.

Yet more and more recently it has seemed that the precise legal framework for the protection of religious freedom has become difficult to agree on. Who is protected? What is protected? We don’t seem to know any more. Religious freedom seems to be in crisis. Especially in Indiana, perhaps. But also last summer in the country as a whole after the Hobby Lobby decision.

It is difficult to give a quick account of what happened in Indiana, even if you work in Indiana, as I do. Much of what has been reported is misleading and alarmist. Some of it is just plain wrong. The trolling and demonization of Indiana is disturbing. I offer here a brief introduction to the legal context for this situation.

One common narrative in the media has been that what we saw in Indiana in the spring—and in Arkansas, and with the Hobby Lobby decision—is that laws that were designed to protect minorities are being used to protect majorities. Another is that laws designed to protect religion are being used to protect something else. The suggestion is that something has gone horribly wrong with this great icon of American life. In the most strident claims there is the suggestion that law is being intentionally distorted and misused—that we have somehow moved from protecting good religion to protecting bad religion.

The headline has been that the new law in Indiana was a “license to discriminate.” Laws protecting religious freedom are always a license to discriminate.  That is their purpose. What went wrong? It has never been right. Right from the beginning laws protecting religious freedom have divided winners from losers. And minorities have usually lost.

Let us start with a history lesson. This is a history that is not well enough known in my view. An NPR reporter during the storm in Indiana a few weeks ago began her story by saying that we needed to know some history—and then she started in 1993! I want to begin in 1789—although I will necessarily be selective.

As every high school graduate knows, when the US Constitution was drafted, no provisions guaranteeing civil rights were included. James Madison and others thought they were unnecessary. The federal government was a government of limited powers, leaving other matters—those not enumerated—to the states. The fact that religion, for example, was not specifically listed as being within the federal government’s authority meant that there was no reason to spell out any protection for citizens in this area.

As it turned out, though, then, just as now, politics intervened. The lawyers were forced to make the law express its politics more plainly. The proponents of the new Constitution could not get the Constitution ratified without explicitly listing the ways in which the federal government could not infringe on certain liberties, the liberties listed in what we call the Bill of Rights—the first ten amendments. What became the first of these amendments says that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” No one really thought Congress could do those things but better to be clear about it.

Until 1940, these words applied only to law made by the federal government. The religion clauses are addressed to Congress. “Congress shall make no law….” They limit the regulatory activity of the federal government with respect to religion. The federal government could not establish religion or prohibit its free exercise. The activities of state and local governments were governed by state constitutions in matters of religion. And the federal government was still very weak. It was only beginning in the mid-twentieth century with what lawyers call “incorporation” that the religion clauses of the First Amendment were applied to the activities of state and local governments. In other words, the religion clauses were initially understood to be primarily jurisdictional, allocating power between the states and the federal government.

The first important free exercise case was decided by the US Supreme Court in 1878. Reynolds v US. In response to a prosecution for bigamy, Mr. Reynolds defended himself on the ground that, in effect, his religion made him do it. He would be damned, he said, if he did not engage in the Mormon church’s injunction to practice plural marriage. Reynolds argued that Congress, by criminalizing his second marriage, was, in the words of the first amendment, prohibiting the free exercise of his religion.

Mr. Reynolds lost the case. In its opinion denying his claim, the first to interpret the meaning of “free exercise of religion,” the Supreme Court explained that the free exercise clause only guarantees you the right to have religious opinions, not the right to engage in religiously motivated acts. Acts, the Court said, were subject to ordinary law and law follows social mores. Any other rule would permit each man to be a law unto himself, as any illegal act might be defended on that ground. Polygamy, the Court further said, was “odious” and barbaric, an offense against society, comparable to slavery. His opinions were constitutionally protected. His acts were not.

Now, as I said, until1940, the first amendment religion clauses did not apply to the activities of states. Reynolds was exceptional because it had arisen in Utah when it was still a territory and therefore still under federal jurisdiction. In 1940, the free exercise clause was incorporated into the Fourteenth Amendment and applied to the states.

Incorporation. Let me explain.

The Fourteenth Amendment was one of three amendments passed after the Civil War, amendments drawn to abolish slavery, give the right to vote to the newly emancipated slaves, and guarantee them equal protection of the laws, state as well as federal. The promise of these amendments has taken a long time to be made real. We are still working on it. When the Court in the 1920’s finally turned to enforcing the fourteenth amendment promise of equal protection for all citizens, it turned to the Bill of Rights to fill out the specifics of the rights which were guaranteed to the new citizens, in a process known as “incorporation,” a judicial means by which the various specific guarantees of the Bill of Rights were progressively understood, in piecemeal fashion, to have been “incorporated” by the Fourteenth Amendment.

With incorporation of the religion clauses in particular, in 1940 and 1947, a controversial national religion jurisprudence was born. For the first time jurisdiction over a broad new range of formerly state and locally governed matters, matters which touched religion, most especially in schools, as it would turn out, were now in the US Supreme Court. They had been made into federal cases. Reflecting the politics of mid twentieth century America, anti-Catholicism, federal-state tensions, and Cold War realities, haunt these decisions.

So…back to our story. As you will recall, the rule in Reynolds, the Mormon polygamy case, was held to be that that the free exercise clause only gives you a right to your opinion, not a right to act on that opinion. No accommodation or exemption from the law would be given to you if you were religiously motivated to violate it. That was federal law for almost a hundred years. Yet, after incorporation, in a series of cases beginning in the 1960s, the Court changed the law. It held that there were times when the free exercise clause did give you constitutional protection for your acts as well as your opinions.

The most impressive of these cases from the second half of the twentieth century was Wisconsin v Yoder, decided in 1972. Mr. Yoder, a member of the Old Order Amish, was prosecuted for violating the mandatory schooling laws. He had kept his children out of high school so that they could learn Amish ways of life. This case set up a clear conflict between an important public policy—mandatory schooling—and an important private religious value—collective life as an intentional religious community. Indeed Mr. Yoder claimed that the Old Order Amish would ultimately be destroyed if their children were sent to high school. He had a very low opinion of high schools. Unlike Mr. Reynolds, Mr. Yoder won. The Court held that the free exercise clause provided a defense to the law. The Amish in Wisconsin did not have to send their children to high school; their survival was deemed more important than training future citizens. The Court’s opinion was very admiring of what it took to be Amish values.

This new regime of constitutionally mandated accommodations for religiously-minded folks ended abruptly in 1990 when Justice Scalia, speaking for the majority in Employment Division v Smith, returned the Court to its position in Reynolds, affirming once again the distinction between opinion and act.

Maybe you know the facts? Alfred Smith and Galen Black were substance abuse counselors working for the State of Oregon. They had been dismissed from their jobs for violating the state’s narcotics laws when they ingested peyote, a cactus fruit with hallucinogenic properties, as a part of the ceremony of the Native American Church, of which they were members. They were subsequently denied unemployment compensation on the grounds that they had been fired “for cause.” Smith and Black challenged this decision, citing Yoder and arguing that they should be exempt from the narcotics laws for reason of religious motivation. Scalia’s opinion reinterpreted the previous free exercise cases, including Yoder, which seemed to allow for such exemptions, announcing that those earlier cases had been misunderstood. They had actually relied on hybrid rights combining free exercise with other rights independent of religion, such as, in Yoder, the right of parents to control schooling.

Smith held then once again that the free exercise clause of the First Amendment to the U.S. Constitution does not mandate a religious exemption, or accommodation, from neutral laws of general application when they impinge on the activities of religiously motivated folks, even if such laws effectively outlaw acts that are understood by those folks to be significant nonnegotiable religious obligations—even, as in the Smith case, what were termed sacraments. Such accommodations, Scalia announced, should be subject to the political process.  Otherwise, he said, echoing the Reynolds Court, every man would be a law unto himself.

Importantly, although Smith ended religious exemptions as a constitutional matter, statutory exemptions and accommodations have proliferated, both specific and general, as Scalia anticipated. Narcotics laws, for example, now specifically exempt the use of peyote by members of the Native American Church. Employment discrimination legislation mandates religious accommodation in the workplace. But, most significantly, immediately in the wake of the Smith decision, a coalition of more than sixty religious groups, liberal and conservative, joined by the American Civil Liberties Union, came together and quickly and successfully lobbied Congress to overrule Smith with near-unanimous passage of the federal Religious Freedom Restoration Act. The coalition included groups from across a very broad American spectrum, politically and theologically speaking, all appearing to agree that, whatever divided them, religion was under threat.

The purpose of the new law, RFRA as it is known, was explicitly to “restore” what Congress took to be the pre-Smith rule. But the record of protection for religion under the Constitution before Smith had not, in fact, been very good. It had been short-lived and not every religiously motivated litigant had won. The record was very mixed.

Passage of RFRA created a constitutional showdown between the two branches of government, Congress and the Supreme Court. In 1997 RFRA was declared unconstitutional as applied to the states. The Court said that it was in charge of deciding the meaning of the First Amendment, as incorporated, not Congress.

Congress responded with a raft of other more carefully drafted legislation, including the Religious Land Use and Institutionalized Persons Act (RLUIPA) at the federal level, legislation specifically intended to salvage some of the intended reach of RFRA. Exemptions were also built into other legislation such as employment and civil rights law. And dozens of states passed their own laws—sometimes known as mini- or state RFRAs—all designed to provide robust and broad protection for religion. The Indiana law was only the latest in that effort.

The aftermath of Smith also saw the development of a vigorous and well-funded specialized bar devoted to promoting the rights of religion in the United States and elsewhere.

We now live in the world that Smith made, a noisy world of religious freedom advocacy. It’s a world that has become increasingly contentious as various visions of religious freedom seem to be at war with each other, here and elsewhere.

Among other things, what we are seeing, I think, is why Reynolds and Smith were rightly decided, and why RFRA laws cannot work, however they are drafted. We are seeing why religious freedom is impossible. It is impossible because we have no way of resolving our real differences as to what religion is, even in fairly uncontroversial cases, let alone controversial ones. Religion in the US is disestablished and fragmented. No one is in charge. The proliferation of RFRA laws has only magnified this situation. We have been reduced to competitive cherry-picking and proof-texting from the writings of various founding fathers, bits of history, and judicial opinions.

There are a variety of ways of illustrating the impossibility of religious freedom. I will focus next on the problem of “proving religion” because any special legal accommodation for religiously motivated persons, and any effort legally to separate religion from government, whether constitutional or statutory, presumes a capacity to give an account of what religion is.

The problem of proving religion was evident from the very first RFRA cases—indeed it was also evident in earlier free exercise cases—but it is also evident in establishment clause cases. I will discuss the evidence about religion in one of each to illustrate this point.

First I will discuss Warner v Boca Raton, a suit brought in the late 1990s under the Florida RFRA Act.

I was one of five religion experts called in the Warner case to give an opinion as to whether the burial practices of the plaintiffs in a lawsuit against the City of Boca Raton, a group of families whose relatives had been buried in a municipal cemetery, were religious. Cemetery regulations had limited memorialization in the cemetery to small flat plaques, flush with the ground; these regulations were designed, the city said, to facilitate lawn maintenance and movement of heavy equipment for grave-digging but they were also consistent with contemporary trends in cemetery design. Yet, over a couple of decades in the 1980s and 1990s, sympathetic cemetery workers had allowed several hundred families—ordinary American Protestants, Catholics, and Jews—to install small home-made assemblages, including crosses, statues of saints, and stars of David, among other items, on the graves, in apparent violation of the regulations.

In 1998, the City had abruptly changed its policy and decided to start enforcing the rules by removing existing grave decorations. After a period of political lobbying and protest, the families sued in federal district court, claiming that both the cemetery rules and the city’s enforcement of the rules violated the then brand new Florida Religious Freedom Restoration Act. The principal issue at trial was whether what the plaintiffs had done on the graves was a “practice of religion” within the meaning of the new Florida statute prohibiting government from “substantially burden[ing] the practice of religion.”

The plaintiffs each explained why they did what they did to memorialize their relatives—citing family tradition, the Bible, and memories of burial practices they had observed. The city argued that the installations were not religious because they were not formally and explicitly “mandated” by the respective religions to which the plaintiffs belonged.

Three experts in religion testified for the plaintiffs, of whom I was one, and two for the City of Boca Raton; each of us offered an opinion as to whether the grave decorations built by the plaintiffs were religious, or not. We had five different theories of what constitutes religion and whether the plaintiffs’ activities should be so described. In the end, the judge denied the families’ claim; he constructed his own theory of religion, using his own religious knowledge as a member of a conservative Presbyterian Church as well as by picking and choosing among the views of the courtroom experts.

The religion experts who testified for the families in the Warner case were chosen by the plaintiffs’ lawyer, an ACLU lawyer who himself had little knowledge of religion. Included were an early church historian who is also a Serbian Orthodox priest, an expert in Jewish law who is also a rabbi, and myself, a comparative religion scholar and lawyer. We were a motley crew. What the plaintiffs needed us to say—to satisfy RFRA—was that the plaintiffs’ practices were religious and that they had been substantially burdened by the City’s rules. We couldn’t do the second. Substantial burden is a legal test. We each testified instead, from our different academic perspectives, as to why the plaintiffs’ practices would be considered religious by religion scholars. We all testified that, although not explicitly required by religious law, the standard promoted by the City, the practices were rooted in and consistent with the broad social practices within these traditions and with the religious narratives expressed by the plaintiffs in their own testimony. We offered what you might call an endorsement of vernacular or “folk” religion—non-institutional religion—as morally significant. The legislative history of the passing of the Florida RFRA law supported such a broad reading of “religion.”

The religion experts for the defendant, the City of Boca Raton, on the other hand, both scholars of comparative religions, offered formal structured models of religion that would permit the judge to locate the plaintiffs’ practices along a spectrum from “high” or “central” religious practices (defined as institutional, textual and male) to “low” or “peripheral” religious practices (defined as home-based, oral, and female); each concluded that the popular religious practices evident in the cemetery “shrines” were “low” or “peripheral,” and therefore did not rise to a level that deserved legal protection. Each offered an abstract hierarchical model of religion to be used to test what should count as legal religion in the US notwithstanding the non-existence of any constitutional or statutory grounds to codify such a hierarchy.

The expert testimony in the Warner case revealed the gap that often opens in these cases between the academic study of religion, on the one hand, and the judge’s and the witness’ own versions of what religion is. The capacity of a court to adjudicate the orthodoxy or centrality of the witness’ practices is deeply problematic in a country in which religion is constitutionally disestablished and the free exercise of religion is guaranteed. Indeed the judge himself announced his respect for the sincerity of the plaintiffs’ religious practices and celebrated US religious freedom. But he could not see his way clear to legally endorse such a broad definition. Instead, he described what they did as motivated by “purely personal preference.”

There is by design no official legal definition of religion in the US. One might say that the judge in Boca Raton simply refused to implement the evident intent of the Florida statute to protect all religiously motivated persons from laws that impinge on their religious practices, however peripheral or unattested to in the tradition. The alternative, as the city lawyer frequently announced, would be “cemetery chaos.”

And discrimination. Because if the plaintiffs had won, non-religiously motivated folks would not have been allowed such accommodation for their family memorials.

What happened in the Boca Raton case, in my view, is that, by elevating a local dispute over burial practices to one about religion and rights, an opportunity for the city and its residents to engage in the necessary local politics to negotiate a solution was lost. The plaintiffs said repeatedly that they would have been happy to find a compromise in which they removed the items at certain times to make maintenance or new burials easier to accomplish. By going to court the problem was re-defined as one of religious freedom rather than one of community governance and both sides were enlisted in what has now become a global culture war between secularists and religionists.

But it’s not just in free exercise cases.

The other religion “clause” in the First Amendment is the Establishment Clause. Cases brought under the Establishment Clause address the question as to when government is prohibited from acting because its actions constitute an unconstitutional “establishment” or favoring of religion. An unconstitutional religious establishment is understood to occur in the US not only when government officially institutionalizes a particular church as the official state church, but also in a range of situations in which government can be understood to “endorse” one religion over another, or even religion over non-religion. Academic experts in establishment clause cases are testifying as to the religiousness or secularity of activities of government (or of agents of the government), rather than of private persons, as in free exercise cases.

Let’s look at another dubious example of judicial line-drawing—this time in an establishment clause case.

In a highly publicized decision in 2005, Kitzmiller v Dover School District, a federal district court in Pennsylvania held that a local school board’s recommendation to its students that it consider Intelligent Design (capital I capital D) as an explanation for the fossil record was an unconstitutional establishment of religion. Many expert witnesses at the trial testified concerning Intelligent Design. Judge Jones found for the plaintiff families that objected to the School Board’s recommendation on the ground that Intelligent Design is not science because ID lacks an empirical foundation in the scientific method. Because he had determined that ID was not science, he decided it must be religion. Science or religion were the only options he considered. Judge Jones was lionized in the liberal media.

Let us look a little more closely at what happened.

The Dover School Board had announced that, beginning in January 2005, teachers would be required to read the following statement to students in the ninth grade biology class at Dover High School:

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

While ridiculed by many liberal commentators, the statement, taken at face value, seems a genuine, even solomonic--if somewhat untutored and unscientific, in the professional sense--effort to explain to students how science education works and how they intend to handle local concerns about the teaching of evolution and the proper role of families in child raising. There is no mention of God or of religion in the statement or in Of Pandas and People and no change was made to the science curriculum. All the statement did was to recommend extra-curricular reading.

In determining whether the School Board’s action was an unconstitutional establishment of religion, Judge Jones’ opinion in Kitzmiller, rather than starting with a definition of religion, began with the evidentiary rules respecting expert scientific testimony in the courtroom to define what counts as science. He then found that ID was not science. While it markets itself as science, he said, it is really “stealth” religion. ID, and the question of its “real” secret purpose, an artifact of American populism and of the US culture wars, became a test case for delineating the boundary between what the judge and the expert witnesses contended are two mutually exclusive domains, science and religion, a boundary whose existence and stability was assumed.

On what evidence can a court in a country without an established religion take notice of a boundary between the sacred and the secular? To recommend a book about ID in high school may be to recommend nonsense but, one might argue, to do so is not therefore necessarily to recommend religion. High school students are given a great deal of nonsense to read—on a variety of topics. Proponents of ID are anti-establishment in the sense of being against both big government and big science. Some of them are striving to make space for a biblical account of human origins. But ID itself arguably has no specific religious content. Its proponents learned that lesson from the fate of efforts to teach creationism. On what ground can we say it is?

As with the Warner case, Judge Jones’ decision Kitzmiller was underwritten by various experts who testified at the trial. Among them was a Christian theologian, John Haught, professor of theology at Georgetown University. Haught described ID as bad theology, the product, in effect, of religious ignorance. ID was not just bad science, he said, it was also bad religion:

ID tries to squeeze what is undeniably a supernatural cause, intelligent design, into an explanatory slot where only natural causes are methodologically permissible . . . Throughout the modern period scientific method has refused to use categories such as purpose, God, intelligence, value, meaning, importance, etc., and has attempted to understand all phenomena in a very limited impersonal and indeed physical way . . . Theologically, moreover, major traditions maintain that if God influences and interacts with the created world it cannot be in the same way that physical causes operate. From the point of view of the most prominent theologians, therefore, not only is ID poor science, it is also appalling theology.

“Major” traditions and “the most prominent” theologians have worked it out, according to Haught. No “good scientist” would indulge in professional speculations on “purpose, God, intelligence, value, meaning, or importance.” No good theologian would believe in miracles or assert that God intervenes in history. Furthermore, according to Haught, genealogy establishes the essential nature of things. ID is tainted by its forbearers.

Haught is a liberal theologian. The practice of having elite “liberal” theologians either testify or be cited in American courtrooms as experts in religion is longstanding. Their role is to debunk folk knowledge. In another evolution case, McLean v. Arkansas, the well-known liberal Protestant theologian, Langdon Gilkey, served as an expert witness against the creation science statute in Arkansas. He used the Protestant Christian theology of Paul Tillich to define religion and to critique creation science. Haught, Gilkey and Tillich have all been enlisted in service of what might be described as an anti-democratic liberal political theology. The fit between liberal theology and science is very cozy.

By continuing to rely on such dubious academic line-drawing between the religious and the secular, the courts have been drawn into a project to avoid dealing with pressing issues concerning public education in the US, one that has increased the tendency of parents to turn to alternatives to public education such as private religious schools and Christian home-schooling.

One more case.

In 2005 I served as an expert witness in a case challenging the constitutionality of an in-prison rehabilitation program. I testified to what I thought to be a fairly unremarkable opinion concerning the evangelical Christian character of the program, InnerChange Freedom Initiative, then operated in one of the Iowa state prisons by Charles Colson’s Prison Fellowship Ministries. InnerChange described itself in its own literature as biblically-based and Christ-centered. I believed that my opinion as to its evangelical Christian nature would be shared by most other scholars of American religion. I was not sure they needed an expert. Indeed, I believed that Prison Fellowship would so regard the InnerChange program.

I was wrong. Prison Fellowship argued at trial that InnerChange is secular because it accepts all comers, does not engage in proselytization, and teaches universal values. They use the biblical idiom, they said, because that is their language but they are not trying to make Christians. They are trying to engage in effective preparation for reentry. They were enraged that I would call them religious. They too believe in religious freedom and they believe that the secular, in the sense of the common good, is not owned by liberal secularists.

In the appeal of the decision to the U.S. Court of Appeals for the Eighth Circuit, Prison Fellowship successfully challenged the admissibility of my testimony, arguing that the Constitution prohibits an American court’s hearing from any expert in religion. The court agreed: “It is well established, in numerous other contexts, that courts should refrain from trolling through a person’s or an institution’s religious beliefs. The district court abused its discretion, as the professor’s testimony is not relevant.”

Not relevant.

In other words, while the Court of Appeals in the InnerChange case substantially affirmed the trial court’s conclusion that the state’s contract with the prison program violated the Establishment Clause because it was pervasively and coercively “sectarian”—another dubious legal word about religion, one I refused to use—the appellate court also held that my testimony was not constitutionally “relevant,” as a matter of evidentiary law, because such expertise is inherently biased and establishmentarian.

On reflection, I have come to agree with Prison Fellowship—about that case and the others. We should not be testifying in these cases. We are not doing what the Federal Rules of Evidence requires of experts. We are not “helping the trier of fact.” What we are doing is telling people that they don’t understand their own religion. That is un-American.

The persistent definitional ambiguity at the heart of religious freedom has created a situation in which these laws, because they are can’t be fairly and coherently administered, have become merely expressive. They are, in a sense, no longer law. Many of them are very badly written—like the anti-Shariah amendment in Oklahoma. They are occasions for us to shout at one another. As we did after Hobby Lobby was decided.

Let’s get back to Indiana. What went wrong? Maybe nothing went wrong. Reporters have fixed on the ways the Indiana RFRA differs from earlier ones, and from the federal law. But in a sense these differences really don’t matter. People reacted to what they took to be the intention of the law’s proponents and that reaction provoked the Governor into action. He had to make a strong affirmation of the commitment of Indiana to non-discrimination against sexual minorities.

The Indiana story shows the powerful way in which the ground has shifted with respect to legal protection for gay rights. But it is not a story of religious freedom.

What we are seeing is that religious freedom is exhausted as a legal framework for co-existence. Law cannot do this work. If God requires you to violate the law then you must decide for yourself whether civil disobedience or even martyrdom is what God wants of you, as Thomas More apparently thought God wanted of him—for you fans of Wolf Hall!

If we stop using religious freedom as a way to avoid talking to one another, maybe we can give attention to some other important things—like dying with dignity, respect for difference in the classroom, and prison reform—as well as to how religious freedom is being dangerously promoted in American foreign policy as a way to reform Islam. In other words, we might use these accommodation demands as occasions to diagnose the unfinished business of our radically changing and contested sacral landscapes, rather than fetishizing the wall between the garden and the wilderness.

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At Least Do No Harm: How Propagating a False Image of Indiana Works against Progressive Aims while Serving Greedy and Self-aggrandizing Interests

 Jacob Boss - M.A., Ph.D. Student, Department of Religious Studies, Indiana University Bloomington

photo of Jacob BossThis article concerns my shift away from thoughtlessly talking trash about my new home of Indiana. This shift led me to see the urgent need to join with and ferociously defend the state’s embattled and striving inhabitants, citizens who are organizing and advocating for everything from clean water to safe air to dignified treatment and quality education. I call out progressives for doing as I once did, but on a much greater scale, and urge them to join in supporting Indiana’s local organizers and advocates.

I'm guilty of sometimes ragging on Indiana. Adjusting to a new home is hard, and I have a lot of pride in Iowa, the state where I grew up. My needling of this unfamiliar land was flavored with homesickness. In conversation, I have been known to interject stats like, "Do you know that unlike Indiana, Iowa gets more than 30% of its energy from renewables?" My patient new friends did not know, and in truth they thought Iowa was mostly a backwards blighted wasteland that no one would actually want to live in. I thought much the same of Indiana before I moved here. I’ve since learned from countless Hoosiers at rallies and fundraisers, at parades and fairs and marches, of their tremendous spirit and the pride they take in their state.

 I've been quick to snark about Indiana in the past, to point to the state's addiction to coal, to the neglected state roads, to the governor’s loathing for energy efficiency.[1] But when RFRA was buzzing through the daily news and the tidal wave of #boycottindiana washed over the state, I found myself pissed off at how my new home, and all the wonderful and passionate people I'd met here, were being assailed non-stop by sectors of the media I generally like and rely on, such as the prolific social commentator Dan Savage, who offered this response typical of the rhetoric during the RFRA blow-up: "A shitty governor makes a shitty place even shittier by signing some deeply shitty legislation into law."[2]

 Savage was just one prominent voice in the chorus of loathing thrumming through the ‘net. I genuinely believe that most progressive voices such as Savage would rather have an Indiana that safeguards the rights and dignity of all its citizens than a convenient but grossly misrepresented whipping boy. Such natural allies must be made aware of how criticism of Indiana during the RFRA firestorm provided cover for attempts to drain the resources of the state, resources that support Indiana’s local progressive organizers. When it comes to critique I believe we have to critique what we love in order to protect and nourish it, and it's precisely the lack of that loving critique that stung so much during the media frenzy over RFRA. Many prominent progressive voices joined the fray, demanding economic isolation for Indiana. These included widely beloved actor and activist George Takei[3] as well as the state government of Connecticut.[4] Tumblr and other avenues for disseminating graphical commentaries filled up with digital signage lambasting Indiana. "Welcome to Indiana, Home of Bigots and Homophobes"  "Welcome to Indiana, Turn Your Clock Back 200 Years"[5] On social media I watched people propagating an image of Indiana as a wasteland, a hellhole, the worst place on earth, and using this image to boost regard for themselves and their states, to solicit business and tourist interest. In constructing Indiana as a worthless garbage pile inhabited by the stupid, the unfortunate, and the undeserving, everyone from major corporations to entire state governments to individual activists could declare boldly and freely how much better they were than Indiana and its benighted inhabitants. Indiana gets caricatured as a state not worth living in, a place from which nothing good comes and to which no one should consider traveling. In the collective imagination Indiana is a lost cause, a sad story we should all move on from. The reality is that Indiana is a battleground, home to people who are engaged at every level of local and state governance to safeguard the rights and improve quality of life for their residents. Indiana is a major site for conventions (GenCon) sports (Indy 500) corporations (Eli Lilly) and academics (Indiana Universty). The RFRA backlash is shot through with incongruities, as Indiana is simultaneously presented as utterly benighted and as rich in resources worth seizing. Why would purportedly progressive politicians and business leaders seek to tear those resources from the hands of the residents working hard every day to make their state better?

Much of the messaging around RFRA represented the state as particularly undesirable for LGBT citizens. It was an opportunity for businesses to show that they were socially advanced, on the right side of history, good inclusive employers. It was a chance for states to declare that they were much better, much more desirable locations for LGBT and LGBT friendly businesses and families than Indiana. Chicago mayor Rahm Emmanuel even sent out a wave of letters to Indiana's business leadership, hoping that the RFRA blow-up would scare Indiana businesses into relocating to Chicago.[6] Did the mayor imagine that by relieving Indiana of its LGBT friendly employers the state would become more socially progressive? In short, many of those decrying the legislation in Indiana saw it as an opportunity to headhunt major employers and skilled workers. If they could score points by wagging their fingers at Indiana while doing so, all the more advantageous.

I want my readers to know that the LGBT citizens of Indiana and their allies are showing up in crowds all over the state, in the urban centers and rural communities. I recently walked through downtown Indy as an estimated fifty thousand people lined the streets for the Indy Pride parade. The Pride festival itself drew over one hundred thousand. Spencer Pride, in the tiny town of Spencer in south-central Indiana, boasts one of the largest small town prides in the nation.[7] These proud Hoosiers aren’t fleeing the state, they’re working to lobby and legislate. The mayor of Indianapolis was in the parade in the state capital, as was superintendent and contender for the governor’s seat Glenda Ritz. The hope of making a difference in Indiana inspired Mayor Peter Buttigieg of South Bend to come out[8] believing that by doing so he could provide comfort both for those struggling to find their place in society and those wrestling with making room for people different from themselves. In an article for the South Bend Tribune, Mayor Buttigier wrote, “If different sides steer clear of name-calling and fear-mongering, we can navigate these issues based on what is best about Indiana: values like respect, decency, and support for families — all families.” It’s easy to get angry, it's fun to fight and sling mud. When mudslinging consumes the airwaves that mud chokes sincere debate. Sitting down and talking, finding a way to work with people you disagree with, that's hard. It’s also the way that progressive Hoosiers have secured advances in water protection and coal plant closures, have defended solar subsidies and kept the state an electoral battleground.

Spencer Pride Festival

Pride Festival Spencer, Indiana

Indiana is very much contested ground. Remember that President Obama carried the state in 2008. Indiana is a state routinely underestimated by media narratives, and as I’ve argued, those misleading narratives work in the service of interests concerned with snatching valuable talent and investment capital out of the state, not with supporting progressive movements in the state. Indiana has a population of fierce advocates who are consistently overlooked by the media and hashtag activists. The way to support the people in Indiana engaged in making this state a better, more fair, more compassionate place to live is through direct support, engagement, and encouragement. What they don’t need is to be told that they're wasting their time on a state the rest of the nation has already written off. Organizations such as Mom’s Clean Air Force, Sierra Club’s Beyond Coal Campaign, Citizens Actions Coalition, Indiana Moral Mondays, Equality Indiana, Hoosier Interfaith Power and Light, Congregations Acting for Justice and Empowerment are already hard at work. Campaigns to isolate and economically choke off Indiana indiscriminately harm Hoosiers already working with limited resources.

The greatest challenge facing LGBT advocates on the ground in Indiana may be employment discrimination. Social media such as Twitter and Tumblr, hubs of the #boycottindiana movement, offer a glut of stories from users about how they have punished Hoosiers economically for RFRA. Stories such as refusing to stop for gas while driving across the state, refusing to stay in Indiana hotels, checking to see if online retailers sell out of Indiana, and so on. Along with anecdotes of economic retaliation come self-congratulatory dismissals, falling along the lines of—to paraphrase from the masses of snarling tweets— “Go back to your trailer parks,” and, “I’d boycott Indiana if it actually had anything worth boycotting.” Notice again how Indiana is seen as a treasure chest worth robbing by business leaders, and as an empty waste by social media. Some voices have been raised in concern over discrimination in employment, and the damage a boycott would do to LGBT inhabitants of Indiana, but these voices have so far been drowned out by the social media clamor and frenzied enthusiasm for denouncing Indiana entirely. The sheer volume of postings from those eager to heap derision on Indiana with the ease of a few keystrokes threatens to obscure the potentially greater threat to LGBT Hoosiers of employment discrimination. If the popular imagination holds that Indiana has no resources to make off with, then this obscuring effect also allows the public to ignore the economic impact of a boycott and attempts to lure away corporate investments and labor.

While public figures have been savaged in the press for supporting laws that could allow denial of service to LGBT patrons, they have so far avoided a similar fate for failing to provide protections to employees. The pastiche of legal protections for LGBT workers in Indiana, a jumble of protections extended by cities and counties, as well as the governor’s office, is a prime example of how Hoosiers live in a contested space where the support or neglect of their causes and attendant organizing efforts can have profound impacts on everyday life.  Under current Indiana law, private employers can fire employees for their sexual orientation or gender identity. Tim Murphy, writing for The Nation, reported that the public has a mistaken view of the legal protections enjoyed by LGBT employees. “Ironically, the invisibility of LGBT people in the eyes of state law, in Indiana and elsewhere, may be due in part to their increasing visibility in mainstream politics. A 2013 Huffington Post poll found that 69 percent of respondents believed, wrongly, that federal law already bars employers from firing people because they are gay or lesbian.”[9] Murphy found examples from around the state of LGBT people suffering from discrimination in hiring and retention as well as workplace harassment. Advancements in employment non-discrimination are vital to improving and securing the livelihoods and wellbeing of LGBT Hoosiers, but organizers must contend with the popular and misguided view that employment non-discrimination laws are already in place. While Indiana and supporters of RFRA have been portrayed as grossly inhospitable to LGBT people, the common misconception that Hoosiers are already protected by universal LGBT employment non-discrimination encourages a misguided majority to believe that beyond RFRA no further advocacy is required.

It’s important that we tackle the tangled knot of investments and passions that have congealed around Indiana’s RFRA, armed with as much context as we can get. Context can drive a wedge into the screaming and the snarking. To that end I urge readers to investigate the history of RFRA. Many have used the language of Indiana going back in time to denigrate supporters of RFRA, but the federal RFRA on which the Indiana law is based is a relatively recent law, one formulated and passed through the efforts of a coalition of liberal and conservative lawmakers and lobbyists. Indiana RFRA opponents, like its advocates, are often unaware of the legal history surrounding the Religious Freedom Restoration Act, and in their eagerness to score points they miss the chance to support Hoosiers. Threats that RFRA will allow refusal of service, thereby creating a new apartheid, have not materialized in the months since the passage of the law. These threats are hard to take seriously with the constitutionality of the law in question, and with the idea of refusing to serve LGBT people provoking mass scorn and disapproval. As I have said, I believe that progressive writers and commentators would like to see Indiana’s progressive community successful and thriving, if they knew of it, and could avoid conflating the odious opinions of the state executive with the general population. Indiana Governor Mike Pence wilted under the public response to RFRA, which provoked outrage within the state, as it did nationally. This most recent incident has highlighted how outrageous it strikes the popular imagination that homosexuals should be susceptible to denial of service. Such statements or implications provoke withering backlash. Public shaming which insists on the unacceptable nature of public homophobia has been effective at denouncing homophobia among lawmakers and business owners. This denunciation can be effectively carried out without ignoring and demoralizing progressive voices within Indiana. While Governor Pence is eating his words through a funnel, the loud and unfocused arguments about God vs Gays are obscuring the work that is being done on the ground.

Supporters of the #boycottindiana movement would do well to come speak to organizers and activists in Indiana. One PFLAG (the leading organization for parents, family, and friends of LGBT people) mother and community leader told me that in the wake of the hashtag movement, “people were terrified to say anything.” Local organizers feared that the boycott would devastate already struggling communities, depriving hard working Hoosiers of their livelihoods, cutting them off from the resources they need to continue to advocate for progress in their state. At the same time, many were afraid to publically oppose the boycott, worried they would draw the ire of the massive internet and media enthusiasm for deriding all things Indiana. RFRA opponents, interested in pillaging Indiana for its skilled labor and corporate investments, and excited to appear righteous by lobbing globs of disdain, scared into silence those best positioned to effect meaningful change within Indiana.

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Democracy Is Coming to the RFRA, or, There’s No Such Thing as Religious Freedom … and It’s a Good Thing, Too

 Steven Alan Carr

Photo of Steven Carr

 - Associate Professor of Communication, Indiana University-Purdue University Fort Wayne

It’s here they got the range

and the machinery for change

and it’s here they got the spiritual thirst.

 -- Leonard Cohen, “Democracy”, The Future (1992)

This essay is not really about the Indiana Religious Freedom Restoration Act (RFRA), nor is it about the tension between marriage equality and religious liberty. It is about how we imagine the kind of democracy we want, how we imagine the kind of media we have, and what happens when our tried and true explanations of how democracy and media interact with one another begin to fail us. Continued use of outmoded models to explain the role rapidly evolving media play in a democracy can only become, in James Carey’s words, “less an analysis than a contribution to the chaos” (34). Media coverage of Indiana amid the crisis over RFRA was but one dimension of a larger problem. New kinds of global media are playing an increasingly important role in a new kind of fractured and fragmented regional politics. Both traditional and social media are shaping this shifting democracy, and this new kind of democracy is shaping these media. In this new media-saturated landscape, anyone seemingly has a chance to speak, but no one has any obligation or responsibility to listen.

hortly before the Indiana RFRA became law effective 1 July 2015, the U.S. Supreme Court issued its landmark Obergefell v. Hodges opinion on marriage equality. Near the end of his spirited dissent, Supreme Court Chief Justice John Roberts’ acknowledged that

The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds…. This deliberative process is making people take seriously questions they may not have even regarded as questions before. (26)

While Roberts’ vision is compelling, no one likewise should assume that the deliberative process occurs in a vacuum. In the democracy we have, as opposed to the one we might want, voters may or may not have carefully considered a hot-button issue. Regardless, all can still cast a ballot. More to the point, voters may believe after at least some media exposure that they have educated themselves on the issue, and arrived at a carefully considered conclusion. Whether their conclusion was better informed as a result of media exposure is another matter.

The RFRA was complex legislation that posed many pitfalls for how the media covered it, and as controversy unfolded in March, the media helped amplify competing claims about what the law would do. Quick to point to a similar federal law already on the books, proponents asserted that the RFRA would only have set a standard for when a compelling government interest takes precedence over a person’s individual religious liberty, and then only in what The Indianapolis Star noted as “the least restrictive way.” Opponents understood the law as an underhanded continuation of right-wing efforts to stave off growing recognition of marriage equality for gays and lesbians. For them, the law used religious freedom to mask previously unsuccessful efforts to put on the ballot a constitutional amendment that would have defined marriage as being exclusively between one man and one woman.

The actual RFRA legislation and public reaction to it were not the only complexities that emerged from this controversy. “The media” – in the plural – proved to be a complex aspect of the controversy as well, and one that cannot simply be reduced to a kind of cultural shorthand that dismisses representations of our state that we don’t particularly like. The media do not exist outside culture and society. They do not simply hold up a mirror to ourselves, nor do they exclusively provide a window onto a strange new world. They as much belong to the fabric of culture and society as the RFRA legislation and its debating voices belong to this fabric.

Mainstream media have real and well-documented constraints. They have deadlines, cycles, and limited time and space to cover a story. More often than not, the media depend upon authorities and spokespeople, who can package and deliver representative positions efficiently. This coverage does not lend itself well to complexities. A complex story with many different sides and voices often gets boiled down to simply two variables: pro and con. Such shorthand may render a story comprehensible or help news outlets caught flat-footed amid a difficult story, but it better serves industry constraints than it does a well-informed public.

As someone who opposed both the RFRA and how the Indiana legislature went about passing it, I nonetheless found myself longing to be better informed about the issue. I also longed to hear from a wider and more nuanced range of voices than the cut and dried positions of those threatening to boycott the state, or those who simply kept repeating the mantra that the law was not a license to discriminate. The media are not blameless in this coverage, but the assumption that media coverage of the law was and is exclusively the problem is a bit of a red herring. The law was complex, and even its proponents admit they do not know what its overall effect will be. In addition to examining media coverage, we might ask what efforts did both opponents and proponents of RFRA make to represent their respective positions fairly? How did they reach out to speak to publics beyond just their own constituencies? And how did misunderstandings and misrepresentations of the law appear in the first place, before the media got a hold of them and presented these distortions to the public?

In many cases, both mainstream and social media amplified and propelled the confusion and chaos already inherent in the law itself. Coverage rarely clarified what constituted “the exercise of religion,” instead accepting as a matter of faith that such exercise was an absolute right, whenever and wherever. On its face, the legislation provided a framework to balance religion against government interference. But what exactly did the law balance against government interference? The claim of religious liberty emerged not as a value, but as a rallying cry. Similar to the cries of free speech that Stanley Fish observed throughout the culture wars of the 90s, cries of “exercise of religion” during the crisis over RFRA became “a political prize” that if “captured by a politics opposed to yours … can no longer be invoked in ways that further your purposes…” (102). Already such skirmishes have begun, independent of marriage equality. According to The Fort Wayne Journal Gazette, Bill Levin has founded The First Church of Cannabis, “obtained a building to act as a church and has invited people to attend.” State Senator and RFRA author Dennis Kruse has objected, finding “the church inappropriate” and hoping that “police and prosecutors step in.” When there is exercise of religion deemed appropriate, the law is there to protect it. When deemed inappropriate, as Kruse told The Journal Gazette, “the law is not meant to be used that way.” (qtd. In Kelly)

On the one hand, media coverage – from both mainstream traditional as well as new social media – magnified problems already inherent in the law, and served as a catalyst for further legislative attempts to correct them. Widespread threats to boycott both Indianapolis and the state prompted pressure from newspapers and members of the business community to “Fix This Now,” as the 31 March Indianapolis Star headline admonished Governor Mike Pence and the legislature. Subsequent legislation quickly passed clarifying that RFRA could not be the basis to deny for religious reasons goods, services, or other amenities to individuals.

On the other, this coverage contributed to problems it concurrently magnified, and in some cases, introduced new ones where they weren’t previously there. Media coverage rarely, if ever, pressed RFRA author Kruse for what his actual intent for proposing this legislation was. Rarely, if ever, did these stories mention that Kruse has repeatedly proposed other legislation for the past sixteen years requiring mandatory school prayer or studying creationism in public schools (Brown).

Jacob Narducy delivers non-discriminatory pizza

Jason Narducy Delivers Non-discriminatory Pizza

If media coverage overlooked a key detail regarding who was proposing this legislation, the RFRA crisis called attention not just to “the media”, but to how various components of the media could work in concert with one another, with frenzied but not necessarily advantageous results. When a South Bend television station interviewed the small-town owners of a pizza restaurant in Walkerton, few expected their avowal on a local news program not to cater gay weddings for religious reasons would become a global Internet sensation. Within 24 hours, newer media had collided with older media. Thousands of negative reviews poured into the restaurant’s Facebook, Yelp, and other web pages. According to the food industry website, Yelp ultimately took down 7,600 protest reviews. “All of that happening in real time,” spokesperson Shannon Eis told the website, “at massively high speeds of posting, for approximately 48 hours nonstop around the globe.” (qtd. In McKeever)

Unlike mainstream media outlets, crowd-sourced media have very different constraints and thus follow a very different regimen for generating content, even as these newer media still draw from older and more traditional sources. Unhooked from some of the limitations, but also some of the professionalization characterizing more traditional media outlets, these newer media have created new opportunity spaces for citizen protests. Rather than show a clear advantage over journalism in facilitating “thoughtful public debate” and careful consideration of issues surrounding RFRA, newer media frequently offered the illusion of civic participation, without a long-term commitment to civic engagement.

Traditional media only further blurred the lines between themselves and these newer media by turning the complex crisis over RFRA into a story about the expressive power of social media. Instead of serving as a catalyst to clarify what the law meant and what it would accomplish, media coverage focused, as journalism Professor Dan Kennedy of Northeastern University told the Columbia Journalism Review, “primarily on the backlash to the legislation or political angles of the story.” (qtd. In Uberti)

Instead of “thoughtful public debate,” traditional and newer media provided a conduit for any disagreement over RFRA. Those disagreements might or might not have shown investment in a “deliberative process … making people take seriously questions they may not have even regarded as questions before.” In contrast to Roberts’ vision of democracy, media coverage of the pizza restaurant only served to further polarize and gerrymander discussion of RFRA along starkly drawn political lines. Within the space of a week, social media closed the restaurant due to the global firestorm of attention, then reopened it after a crowdfunding campaign raised $842,000 in support of its owners.

Online protests, boycotts, and fundraising all remain important elements within a larger democratic process. But they are not, and will never be, interchangeable with that process. Media, both traditional as well as social and other online media, still have a role to play in guiding public opinion on contentious and controversial issues. Instead of devoting disproportionate media coverage to how media played a central role in a highly contentious issue, or providing an opportunity for anyone with an opinion to sound off, old and new media outlets can do a better job structuring the kind of long-term public discussion that takes place.

A structured public discussion across different media platforms can help contribute to a more productive climate for communication. While that climate doesn’t necessarily result in agreement or consensus, it does move discussions about contentious topics like RFRA beyond mere portraiture of polarized and entrenched viewpoints, and closer to the kind of deliberative process Chief Justice Roberts described. The ultimate goal of these discussions should be to engage divergent viewpoints in dialogue with one another, and not just simply showcase that there are differences.

Both traditional mainstream as well as newer social media have a role to play in facilitating this structured discussion, but they cannot have this discussion on behalf of key constituencies. Similarly, Indiana citizens should not consign this discussion to business fears of economic fallout from RFRA. Instead, a range of Indiana voices must define what the exercise of religion means, as well as how RFRA will balance those rights alongside other competing and fundamental rights. Indianans must engage one another in what they believe constitutes the exercise of religion, how it should occur beyond brick-and-mortar places of worship, and when and where can this exercise take place. By better framing what exactly it is that we are debating, media coverage can help guide this public discussion. But responsibility for actual participation in an informed and precise conversation concerning how religious rights exist alongside other fundamental rights ultimately resides with those who choose to speak in this discussion. Better media coverage alone will not make for a better public discussion.

How RFRA will balance competing rights – not just against what the law vaguely deems “a compelling government interest” – should be a cornerstone of these discussions. Fish’s treatment of another fundamental right, free speech, can serve as the template for Indiana’s deliberative process. We might begin by acknowledging that all exercise of religion, like free speech, is both situational and ad hoc. Given that there is exercise of religion occurring in many different forms, ongoing public discussions should invite voices from across a spectrum of belief to articulate how, when, and where they practice their faith. Then, mediated discussions can structure public participation around Fish’s three-part question designed to balance competing claims, in this particular case concerning how, when, and where the exercise of religion would take place: “what does it do, do we want it to be done, and is more to be gained or lost by moving to curtail it?” (127)

These forums, designed to elicit broader public discussion, offer no guarantees that intractable and extreme views will reach agreement or consensus. They will not fix a poorly worded law, and in and of themselves, they will not bring about greater understanding of what RFRA actually will do. Certainly, “thoughtful public debate” can just as likely occur around the water cooler or the kitchen table as it can in mediated forums. But if there is a “deliberative process … making people take seriously questions they may not have even regarded as questions before,” then both traditional mainstream and social media have an important role to play, one that moves beyond mere portraiture as coverage. Both traditional and social media can do more to invite not just participation but also citizen engagement with a long-term deliberative process. That process does not occur naturally, and we cannot take its existence for granted. If both media professionals and those who casually post their opinions online can take a serious look at how we might balance competing claims when the exercise of religion occurs, that process can eventually help guide us through the thorniest of issues, and move us closer to the idealized vision of democracy espoused in Roberts’ dissent from Obergefell v. Hodges.

References and Further Reading

Brown, Simon. “Pence’s Pandora Problem: Ind. Governor Signs Troubling ‘Religious Freedom’ Bill.” Americans United for Separation of Church and State 27 Mar. 2015. Web. 8 July 2015.

Carey, James W. “A Cultural Approach to Communication.” Communication as Culture: Essays on Media and Society. Media and Popular Culture. Boston MA: Unwin Hyman, 1989. 13-36.

Fish, Stanley. There’s No Such Thing as Free Speech and It’s a Good Thing, Too. New York NY: Oxford U P, 1994. 102-19, 120-33.

“Fix This Now.” Editorial. The Indianapolis Star 31 Mar. 2015. Web. 8 July 2015.

Kelly, Niki. “Slow Drivers, RFRA Lead List of New Indiana Laws.” The Fort Wayne Journal Gazette 28 June 2015. Web. 8 July 2015.

McKeever, Amy. “Why Yelp Emerged as a Site for Social Protest.” Eater 19 May 2015. Web. 8 July 2015.

Obergefell v. Hodges. 556. U.S. Supreme Court. 2015. 26 June 2015. Web. 8 July 2015.

Uberti, David. “How a Pizzeria Took Center Stage In Coverage of Indiana’s Religious Freedom Law.” Columbia Journalism Review 2 Apr. 2015. 2 Apr. 2015. Web. 8 July 2015.

Wang, Stephanie. “What the ‘Religious Freedom’ Law Really Means for Indiana.” The Indianapolis Star 3 Apr. 2015. Web. 8 July 2015.

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“Liking” Away Diversity:  Social Media Reality and How to Prepare Citizens for Discourse in the Heated Arena of Polarized Political Stance

Erin Parks - MPA student, School of Public and Environmental Affairs, Indiana University Bloomington; concerned but hopeful citizen.

Erin Parks photo smallestHave I missed something?  I am a Master’s student in public affairs.  I have studied constitutional law, but maybe I have missed something.  Indiana’s RFRA is no more discriminatory than other such laws.  Perhaps I should assert this position?  Seems I can’t.  I have no good way of meaningfully engaging with these impassioned citizens in this tumultuous battle about religious freedom; one is either for it or against it. I guess I will just wait for the storm to pass…

Wait?  Now Black Americans worshipping in their churches are the targets of hate crimes, and no one is saying anything?  Something must be done.  Perhaps I should assert this position?  No, I have no good way of meaningfully engaging with these tepid citizens in this violent battle about racism.  But I can’t wait for this storm to pass, what should I do?

This has been my inner dialogue over the past three months, and although I am still trying to make sense of the reasoning in the secular response to the Indiana Religious Freedom Restoration Act, I have concluded that as educators of a politically active and technologically savvy generation, it is our duty to address the polarized arena of the social media forum.  When social movements begin through personalized media, complicating the discourse is essential for ethical progress.

From March 26th, 2015 to April 2nd, 2015 I watched Indiana become one of the most hated places in the country. The signing of RFRA sent my social media community into an outrage I have never before witnessed, and that anger forced a law to be changed in a matter of a week.  This social movement was powerful, effective, and discriminatory at its core. But my concerns have only been complicated.   I am now watching South Carolina go seemingly unnoticed—and largely unboycotted-- as the State struggles with eliminating the Rebel Flag from its identity.  I am watching churches burnBlack Americans being blatant targets of hate crimes,  and all the while, a quiet social media delicately mourns the destruction.  These two historical moments have called me to action.  Social media responses to these two instances of discrimination are erroneous.  They do not represent a meaningful engagement with the community regarding the impact of the discrimination.  It is exciting that social movements can have a voice in mass media.  However, it seems the only messages moving through social media are those that clearly demonstrate a right or wrong which can be easily identified by the individual user. So much is lost in this individualist approach to activism in the social media forum.

It cannot be denied that social media allows for powerful, diverse discussion from a personal standpoint, but its “feed” function misses the understanding of “public good.”  The algorithms created for entertainment and preference breed an individually developed dialogue, one created without the complexity of other communities.  A user can promote what he wants to support, and though each individual is unique in his circumstance and position, when his opinion assimilates only parts of a community, how does he assert his ethical position without perpetuating poorly informed positions in a social media public dialogue?   Currently, there is no effective way to do this.

Social media has become a prevalent source of information, but  its viral nature creates  messages for the individual opinion alone.  Social media asks the question, “do you agree or not?” and once the personal judgement has been made, the individual can choose to make it part of their community’s dialogue by sharing the message.  Further isolating the dialogue, this same individual can create his own community of like-minded individuals through preference mechanisms, and this perpetuates polarized communities fused in solidarity by a single idea.   The speed and brevity expected of information has diluted dialogue and thoughtfulness. There is opportunity in social media, to be sure--not only to question inaccuracies or violations of individual rights but to find a thoughtful collective voice and demonstrative activism for “public good.”   “Public good” cannot withstand such polarized positions undermining that collective voice, however.  How can we as educators and communicators demonstrate this complexity and encourage dialogue when social media outlets make it so easy to express a personal position without recognizing the impact of these assertions?  I believe it is our duty to teach students and citizens how to communicate in the polarized climate of social media channels, and I hope this forum sparks creative ways to inspire our impassioned citizens not to  “like” away diversity.

Indiana’s RFRA

RFRA Political Cartoon 

Found through a Google Search of “Indiana RFRA” on July 3rd, 2015

As reported by many news outlets, Indiana’s RFRA was not special.  Implementing a law like this would be case by case, not a blanket right for the “religious” to discriminate; however the law seemed to have been constructed to counter the gay community’s recent victory of legalizing same sex marriage in Indiana.  All of this was true, but finding nuanced positions expressed in social media was almost impossible. Some of the most widely shared articles were those that found traction with an individual’s opinion, not with the complexity of the issue. 

George Takei RFRA Response  

Viral Message initially shared by found June 17th, 2015 through Google Search of “Indiana RFRA”

RFRA Mike Pence Cabinet

Viral Message initially shared by GLAAD found June 17th, 2015 through Google Search of “Indiana RFRA”

Mike Pence RFRA Pledge

Viral Message initially shared by Gov. Pence found June 17th, 2015 through Google Search of “Indiana RFRA”

The above images express opinions that could be supported by the individual and shared through their media outlet.  Of course, there was a meaty middle. However, trying to discuss that middle proved challenging. A notable article by Dr. Dan Conkle attempted this dialogue, but the article was lambasted as discriminatory, and all those who used it as support for their position were considered similarly discriminatory, as evidenced by comments in the article.  Furthermore, the shared posts on social media were so fiery that corporations, celebrities, and state figureheads boycotted Indiana for its alleged discriminatory position. Governor Pence decided to update the law after backlash from the rest of the country.


Enities that may boycot IndianaViral Message found June 17th, 2015 through Google Search of “Indiana RFRA”

Some Pros and Cons of Social Media Movements

It is notable that the social media community could change a law so quickly, but this specific instance was an individual’s position on a political conflict, not an open dialogue for progress in a social movement.  Although powerful in communication, the RFRA messages were often expressions of uninformed opinion, and when these expressions multiplied on a social media newsfeed, it did not encourage collective thought but rather solidarity against another viewpoint.  Personal opinion—a political position of equalizing marriage rights—was easy to communicate.  One was speaking from a simple judgement.  That judgement, however, can seem inclusive, and problematically conclusive, when seeing it populate a newsfeed.  It presents itself as a “solution” that the individual can promote, and when the solution can be promoted by multiple people it creates a shallow dialogue, perpetuating inaccuracies and discrimination.  This filtering tactic of aligning oneself with specific opinions greatly molds one’s position politically and socially over time.  “Liking,” “unfollowing,” and detaching from those who have different opinions than the user is a mechanism to enhance the user’s experience in her own social media.  The outcome of creating this individualized dialogue is a diluted understanding of the complex issue at stake. 

This raises questions:  should we encourage citizens to remove that which they do not like from their understanding or should we develop ways to ask questions of the opposing side in social media?  Should a social media feed be populated with opposing viewpoints?  Should there be a way to mimic a “disagree or dislike button” that would help populate one’s newsfeed with stories with which one is likely to disagree?  I jokingly say this, but in reality, passion and pain are at the heart of any “share.”  If we are to dialogue, recognizing the personalized thought process and influence in each “share,” and approaching it not as a retort but as a discourse, is necessary to avoid the polarized interactions prevalent in a newsfeed.

There was good that came out of the polarized conflict of Indiana’s RFRA.  The gay community made a statement against anything remotely discriminatory in expression.  For many people, the message and enemy seemed “clear,” and presenting a position was supported through the many different ways one could easily communicate that viewpoint.  However, there was also harm. The problem with this presumed clarity was that it discredited a community’s belief system, thereby undermining the possibility of interacting politically and thoughtfully.  In this dialogue, the secular community was angry that an Evangelical Christian message could be politically influential.  Historically speaking, Evangelical Christian political influence is not new, and the secular and Evangelical Christian community have been debating about this influence for a considerable amount of time.  The secular response of “you are not Christian if you do not support love and equality” is a deeply discriminatory understanding of what it means to be “ethical” as a Christian for these specific communities.  Furthermore, asking for a concise statement of objective reasoning of any belief system will perpetuate misunderstanding and discrimination.  All complex interactions with these types of belief systems should be conducted with the understanding that certain arguments are meaning-filled in relation to personal salvation; a community’s dynamic history of achieving salvation cannot be simplistically argued according to what is considered “correct” in the secular community.  Conversely, the pro-RFRA community painted a simplistic picture of why the law was created and how it could affect Indiana.  There was no certainty that this law would not be gravely misunderstood and used improperly outside of its protections.  Informing the public of the complicated implementation of this law should have been top priority of all media.  Instead, the poorly developed dialogue ended with a deeper schism between these communities.

Learning from Indiana’s RFRA can help us prepare for future events like this.  If we continue to use social media for political interaction, it must become part of communication training.  Helping students create complex newsfeeds is essential when social media is the place for political action, especially when truly difficult social issues are presented.  Without a way to communicate thoughtfully, social media becomes a confusing place, and if the “wrongdoing” is outside of the polarized, political arena, the individual voice cannot concisely express what progress looks like.  Consequently, progress can only be seen in the shallow victories of a single event.

The Charleston Church Shooting and Confederate Flag Removal

Charleston Church Shooting Victims

Viral Message found July 3rd, 2015 through Google Search of “Charleston Church Shooting”

On June 172015, nine members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina were killed by a man who was identified as a white supremacist.  This hate crime was not the center of social media outrage.  Instead attention was paid to another related event. The State of South Carolina lowered the American Flag to half-mast out of respect for the victims, but did not lower its Rebel Flag.  The social media community quickly created its positions against this seemingly racist act, and although the criticisms paled in comparison to the Indiana RFRA outcry, the social media community was heard.  Through legal process,  the flag was removed from the grounds of South Carolina’s state building.  This was considered a victory for the black community and lauded as progress by the public.  Since then the social media forum became quiet again, but the hate crimes against the black community continue to multiply.

Charleston Church Shooting Victims

Viral Message found July 3rd, 2015 through Google Search of “Charleston Church Shooting”

Again, the social media forum easily identified a majority’s opinion, through mechanisms provided to create a more pleasing individual experience.  One likes what his community likes.  The removal of the confederate flag had a right and wrong position and created communities who agreed with the solution.  There was a polarized position; however, the current violence against the black community does not create a similarly polarized stance.  The question of a solution has yet to be asked.  Instead, the tactics for explicitly communicating the deep history of racist violence are currently not adapted to a social media forum.  The individual user’s attempt to promote progress consists of passing around information which might be useful to its community to better understand the issues at hand.  It might be shared by another. But the problem of racism is too complex to be a “profile picture changing” movement.  

How can we move past such isolated dialogue?  How can we create meaningful discourse? As always, I think we can teach.

Concluding Thoughts

Complex newsfeeds and thoughtful peer to peer interactions might complicate the polarized opinions found in the social media forum, creating effective social movements. Ways to do this include high school or college course assignments using social media that encourage analytical thought, source referencing, and comment reading to develop positions complicating the dialogue in political movements.  Another method might be exercises in concise writing of introductions to complicated or dense readings, enticing the individual to stop and read what he might usually pass in a feed. 

Whatever the pedagogy, the goal is to create an empathetic media participant; such participants are essential to the public good.   Perpetuating the isolation of ourselves through social media’s filtering mechanisms will only continue the polarization of our nation, and social issues that need closer attention will remain untouched by the power of a social media discourse.  I hope we all can find a way to use our positions, and our technology, to better our community.