The Exodus:5 Project
When a fire is started and spreads to thorns, so that stacked, standing, or growing grain is consumed, he who started the fire must make restitution. Exodus 22:5
The Law of Unintended Consequences is, as one pundit said, often invoked but rarely defined. Mostly, it is meant to refer to government regulations. They are often well-intended, but they never work exactly the way those good intentions hoped.
In my current line of work, the best illustration is the Religious Freedom Restoration Act. Almost 25 years ago, a remarkable coalition of religious activists from across the spectrum collaborated on developing a piece of federal legislation to protect practitioners of minority religions. (Of course, 25 years ago everyone other than Christians were religious minorities.)
The origin of the effort was the arrest of a Native American practitioner of his legacy tradition, which included the ingestion of peyote as a sacrament. Never mind the details. When the dust cleared and the lower courts had their say, RFRA (say “riff-rah,” like Scooby-Doo) protected the rights of Jews to wear kippot, Muslims to pray five times a day, Sikhs to wear the symbolic kirpan and lots of other people to incorporate their observances in ways that did not substantially burden government, employers and other official rule-makers.
RFRA passed almost unanimously in both houses of Congress and, a few years later, was declared unconstitutional by the Supreme Court except in very limited circumstances. The Court did not restrict the authority of individual states to enact their own RFRAs, and many did in pretty short order, using the model of the federal legislation. The provisions in the original RFRA are still pretty much intact in my own state, Virginia.
It sounds like a pretty good idea, right? There may be good cause for salespeople in a clothing store to look presentable, but a Muslim woman who covers her hair in modesty does not compromise that standard (as Abercrombie and Fitch discovered). Food service workers must maintain a regulated level of hygiene, but that is possible for Sikh men who go unshorn. A Shabbat-observant employee may elect to use earned time off to leave work soon enough to be home before sundown Friday.
(A nod to my secular coalition partners: sometimes accommodations for religious practice, however sensitively construed, disadvantage those who are not at all religious. As my friend Nick says, if I have tickets for college football games, why must I always work Saturdays to allow for someone to observe their sabbath?)
It took twenty years, but the Law of Unintended Consequences has set the field of religious freedom on fire. It took a while, but the people least effected by RFRA found a way to weaponize it on their own behalf. In those states that had not enacted their own protections for religious minorities back in the day, advocates and legislators from the religious right attempted to use the principles of protection to ensconce their own dominance over state law. Using the language of "substantial burden," opponents of marriage equality took the Supreme Court's expanded definition of "person" from the Hobby Lobby case to enable individuals, businesses and institutions to refuse to validate same-sex marriages by providing gays and lesbians with goods and services that straight people could access. They could claim that such actions would substantially burden them on religious grounds.
The Governor of Indiana at the time was former U.S. Representative Mike Pence, lately Vice-President of the United States. He signed the bill into law. At that point, the fields of Indiana with their corn and amber waves of grain burst into flames. Companies from Angie's List to Eli Lilly to both the NBA and the WNBA threatened to turn their objections into relocations. Investors in Indiana businesses announced they would invest elsewhere. Major cities and universities announced that they would do everything to make their residents and communities feel fully welcome and integrated.
Within nine months, the Indiana legislature rolled back most (but not all) of the legislation. Gov. Pence signed that legislation as well.
RFRA, once hailed as a great equalizer, is now widely criticized. The debates among former supporters – including some of the architects – are about whether to fix or scrap the law. The manipulation of this law has produced another casualty as well. The notion of religious freedom, once championed by every American with the smallest familiarity with the Constitution, has fallen victim to the culture wars being waged by those unwilling to accept the rule of law over the rule of personal faith.
As a kid in the Chicago area, I loved the smell of burning leaves in the fall. Homeowners would rake them into the gutter and light them to dispose of them. They smoldered for a long time, polluting the air and, untended, were dangerous. It's now illegal to burn leaves.
One day as I rode my bike home from school, staying to the far right of the street, I wheeled through an innocent-looking small pile of leaves. Suddenly, I had a hot foot. My laces caught on fire. The solution to the problem of one homeowner caused, quite unintentionally, an injury because some guy didn't want to give up the past.
Maybe I should have ridden around the pile. Maybe the farmer shouldn't have stacked the grain so close to the thorns. Maybe gay people shouldn't get married.
Or maybe persons – however defined – ought not promote what they know are unintended consequences.