But the deeper shock is that RFRA backers have not recognized the real moral asymmetry that comes into play against them: Gay activists are fully convinced that it is truly, deeply wrong to “discriminate,” to turn away from people, because of their “sexual orientation,” or their homosexuality. They draw upon the logic of a moral judgment Aquinas caught: that we are obliged to do what is right and refrain from what is wrong; that we promote what is right and discourage and repress what is wrong.
The law, they think, draws on this elementary moral meaning when it prescribes what is right and forbids what is “wrong.” “If slavery is right,” said Lincoln, “all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away.” These activists could be excused, then, for believing that if the law forbids discrimination based on “sexual orientation,” that discrimination is indeed wrong. In that event, the law would be justified in a wide range of measures to punish and forbid that discrimination. Against that deep claim of moral wrongness, RFRA’s backers would raise a claim to be exempted from the law, not by offering reasons to show what is wrong with the law’s reasoning and substance, but by invoking “beliefs” that do not claim to be valid for anyone who doesn’t share them. Those beliefs must be respected solely because they are “sincerely” held as “religious”—and the law may not inquire into what makes them “religious.”
That problem, running to the heart of things, was disclosed in the Indiana statute itself. As with most articles of legislation, the statute sought to get clear on the definition of the terms it was using. So the act seeks to set down definitions… of “demonstrates,” “granting,” “Establishment Clause,” “exercise of religious freedom,” but the one thing it doesn’t try to define is… “religion.” The drafters tell us what the “exercise” of religion may be, but not what is being exercised and how they know that it’s “religion.”