Gary Johnson has a religious liberty problem.
One would think, based on the fact Johnson is running as a Libertarian, that the former New Mexico governor would be especially sensitive to the complexities of the debate over religious liberty. After all, freedom of religion is the first freedom enumerated in the Bill of Rights, so it would appear to be an important one.
But Johnson just cannot seem to put forward a thoughtful position on the subject.
Earlier this spring, during a Libertarian Party debate, the candidate was pressed on whether he felt a Jewish baker ought to be forced to bake a Nazi cake against the baker’s religious beliefs — and, incredibly, Johnson answered yes, though his reasons why were unclear. Johnson later backed away from the statement.
Then came the Libertarian’s nearly incomprehensible interview with the Washington Examiner’s Tim Carney, in which Johnson described religious freedom as “a black hole” and made a rather strange comment about Mormonism relating to one person shooting another dead because God told him or her to.
Now, Johnson is attempting to further clarify those remarks in the Mormon-run Deseret News, explaining that the question was “thrown at [him] while walking down a street (in the rain)” and that he believes the country should “strike a balance between our shared American values of religious liberty and freedom from discrimination.”
But while Johnson takes great pains in the piece to assure readers that he respects citizens’ rights “to practice and to express deeply-held religious beliefs” while also opposing attempts to use religion “as a tool to discriminate,” when it comes to details, he once again fails to convey a deeper understanding of the issue.
The problem revolves around his criticism of the Indiana Religious Freedom Restoration Act signed last year by Mike Pence, which immediately set off a media firestorm rife with misinformation. As The Weekly Standard’s Mark Hemingway explains, Johnson repeats much of that misinformation in his op-ed:
So Johnson wants to “strike a balance between our shared American values of religious liberty and freedom from discrimination.” Seems reasonable. That’s all religious liberty advocates want as well. But then he says Pence “took a divisive approach by introducing religious freedom bills that were clearly aimed at LGBT individuals.”
This is a mischaracterization of what Indiana attempted to do, which was pass a version of the Religious Freedom Restoration Act at the state level. The federal RFRA passed in the 1990s under Bill Clinton with overwhelming bipartisan support. Twenty-one states already have state-level RFRAs.
John McCormack has an in-depth explanation of RFRAs and what they do, but in short, the legal term of art for legislation such as RFRAs is that they are a “balancing test.” RFRA provide that the state must have a compelling interest for restricting religious freedom and that requires they use the least restrictive means possible. If someone charges that their religious freedom is impeded, they make their case in court, and there’s no guarantee they will win. To date, there hasn’t been a single RFRA case over compelled participation in gay marriage. And the statute has been used for many broader religious freedom purposes, such as authorities trying to seize ceremonial eagle feathers from Native Americans under the guise of the Endangered Species Act.
Far from RFRAs being “clearly aimed at LGBT individuals,” it’s exactly the vehicle for achieving the balance between religious liberty and freedom from discrimination that Johnson claims he wants.
Johnson also attempts to contrast Indiana’s RFRA with a “Utah compromise” bill passed around the same time — which combined religious liberty protections with new language barring LGBT discrimination in employment and housing — and praises Utah for taking “an inclusive approach of ‘fairness to all’” as opposed to Indiana’s “thinly-veiled intent to discriminate against gays.” To back this up, Johnson cites a Time column by Jonathan Rauch making a similar argument:
The problem with Indiana’s new religious-freedom law, and for that matter with Arizona’s proposed law and with similar legislation advancing in other states, isn’t what’s written in the statute; it’s the intent with which the statute was written. The laws are now seen, not inaccurately, as targeting gay and lesbian Americans. As a result, religious freedom, once a cause that commanded broadly bipartisan support, is becoming tainted with the stain of discrimination. And that’s too bad — especially for friends of religious freedom.
There’s a better path. We saw it taken in Utah just a few weeks ago. The state passed new religious-conscience accommodations, but they were tied to new gay-rights protections. Both sides walked away feeling more free to live according to the lights of their consciences. Both got a win and supported the outcome.
Notice that Rauch says there is no problem with the Indiana law itself; the problem, as he sees it, is with its apparent intent — to potentially protect Christians from being forced to participate in same-sex weddings. But Rauch and Johnson have no issue with Utah trying to provide the same protections. In fact, they praise Utah for doing so while also offering the LGBT side “a win,” as if the Obergefell decision were not enough of one. The real issue with Indiana would seem to be the state’s timing: now that same-sex marriage is legal, religious liberty is unpopular (at least among cultural elites), requiring new compromises to be made by conservatives in order to achieve an outcome that was once acceptable to all and still should be in theory.
That Johnson is endorsing this line of argument reveals the true nature of his religious liberty stance. The Libertarian is not interested in principle; he is interested in saying whatever will make him seem palatable enough to the voter demographics he is currently pursuing, even if it means taking a position that is ultimately incoherent.
So, in other words, Gary Johnson is just another typical politician. Shocking.
Paul Dupont is the managing editor for ThePulse2016.com.