You want to know the weirdest thing about the fight over Indiana’s state-level version of the federal Religious Freedom Restoration Act (RFRA)? It’s totally at odds with the origins of that first federal law.
Indiana’s law is being championed by religious conservatives and opposed by secular liberals. In an intense press conference on Tuesday, embattled Republican Governor Mike Pence declared, “I believe religious liberty is our first freedom.” But the original RFRA was signed into law by Democrat Bill Clinton in 1993 after the state of Oregon refused to pay unemployment insurance to a couple of Native Americans who got canned as drug-rehab counselors for using peyote in religious ceremonies. RFRA was passed to remedy such an obvious injustice and its main sponsor in the House was liberal congressman Charles Schumer, who’s expected to become the next Senate Minority Leader and is most famous for trying to ban every goddamned good-time substance known to mankind, from Four Loko to powdered caffeine to “delicious-looking detergent.”
Weirder still: Arch-conservative Jesse Helms, a hardcore Christian who was an unapologetic homophobe, was one of just three senators who voted against the law. Writing for the majority in Employment Division v. Smith, the drug warrior Antonin Scalia thundered that letting religion provide a loophole in such an instance “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”
What a long strange trip it’s been to today, man. Conservatives now see state-level RFRAs as the last, best hope of keeping religiously minded individuals from having to bake wedding cakes for gays, shoot video at gay weddings, and (at least theoretically) perform stripteases at same-sex bachelor parties. And liberals such as openly gay Apple CEO Tim Cook say such laws “allow people to discriminate against their neighbors.”
Both sides are partly right. And they are both annoying and self-aggrandizing in their righteousness. Given the paucity of actual cases in play—virtually all news accounts recycle a handful of incidents in a few states—it’s clear that the main function of the current controversy is to make religious conservatives feel even more persecuted than usual and to make secular liberals feel as if they are making a last stand for human decency. As my Reason colleague Scott Shackford puts it, “Indiana’s RFRA—and the response—is all about the signaling.”
If religious conservatives are truly an embattled minority—didn’t you know that being anti-Christian is “the last acceptable prejudice”?—then why the hell are all prospective candidates for the Republican presidential nomination kowtowing to such folks in Iowa, South Carolina, and basically everywhere else around the country? And why did Ted Cruz, the first Republican to officially declare his presidential aspirations, kick off his campaign at Liberty University, founded by the Moral Majority’s Jerry Falwell, which is proud of being “the largest Christian university in the world”?
Fer chrissakes, even Democratic candidates dutifully proffer their Christian bona fides and the last three Democratic presidents—Jimmy Carter, Bill Clinton, and Barack Obama—were pretty fond of “praying publicly on street corners.” Atheist politicians should have it so easy.
Which isn’t to suggest that America is the same seething pit of homophobia it was during Three’s Company thousand-year reign of terror, either. When it comes to attitudes about homosexuality and same-sex marriage, liberals are part of a large and growing majority that supports equality. Fully 66 percent of Americans agree that “gay or lesbian relations between consenting adults should be legal” (up from 50 percent in 1999) and 55 percent believe that “marriages between same-sex couples should…be recognized by the law as valid, with the same rights as traditional marriages” (up from 35 percent in 1999). Thirty-seven states recognize gay marriage already and a coming Supreme Court decision could well help run the rest of the table.
From a libertarian perspective, there’s an easy enough way to resolve the current conflict between demands for religious freedom and equality. It doesn’t fully satisfy either side but it has the virtue of preserving a pluralistic society and minimizing intervention into everyday life.
The starting point should be to focus on discrimination by the government, which was the impetus behind the original federal RFRA—Oregon refused to pay out unemployment based on religiously based drug use. Conservatives typically say they believe in limited government and individual rights and that the government shouldn’t play favorites or accord certain people or classes of people special treatment (this is their argument against affirmative action). If they mean what they say in other contexts, conservatives should be in the forefront of pushing for marriage equality, as the state has no case for treating individuals differently under the law.
For their part, liberals should recognize the limits to and wisdom of injecting state power into every possible relationship in the country. As wrong and stupid as I think it is for a particular individual or business to discriminate against a customer or neighbor based on sexual orientation (or race, gender, and class for that matter), that should be the business’s decision, especially if the business is only one service provider among many.
Nobody should be forced to do something they don’t want to do, whether it’s bake cakes for gay weddings or decorate cakes with anti-gay slurs. To me, whether a person’s or a business’s decision is based in religion is immaterial.
Whatever you may think of Jack Phillips’s refusal to bake a wedding cake for gay customers, there’s something as or more disturbing about the court ruling against the owner of Lakewood, Colorado’s Masterpiece Cakeshop. Not only was the baker forced to change his store policy, he and his staff were required to attend sensitivity training. That sounds like something out of China during the Cultural Revolution. It doesn’t help that Phillips offered to make the original complainants any sort of item but a wedding cake.
Most Americans don’t agree with Phillips’s beliefs in this case, but such disagreements are one of the prices we pay for living in a free society, in which we seriously recognize and respect that different people have different value systems. It’s worth noting that in the segregated South, very different rules applied. It was common, for instance, that local and state governments and laws actively prevented businesses from treating customers equally. When laws were not openly racist, “citizen’s councils” and terror groups such as the Ku Klux Klan enforced a de facto standard against businesses that treated all customers equally. This is not the case today with regards to gays and lesbians.
By the same token, any individuals or businesses that exclude certain sorts of business can’t exactly bitch and moan when people decide to publicize such policies and organize boycotts, as is happening to the entire state of Indiana now.
Supporters of state-level RFRAs should own the fact that, as Apple’s Cook says, such laws absolutely do allow discrimination (more precisely, they allow defendants to use religious beliefs as a defense in certain court proceedings). Indiana Governor Mike Pence now says he hopes to fix the law with more legislation. “The issue here is still is tolerance a two-way street,” he told ABC News over the weekend. Of course it is, and the same right that allows a business to opt out of serving some customers also allows others to respond by taking their business elsewhere. Last year, Arizona Governor Jan Brewer vetoed a RFRA-style bill precisely because of possible economic fallout.
Real and threatened boycotts may or may not be hypocritical. The Federalist’s Sean Davis is delighted to document how Connecticut Governor Dan Malloy, who has called for a ban on state-funded travel to Indiana, doesn’t realize that his own state’s RFRA is more expansive than Indiana’s.
Maybe, but who cares, really? Conservatives cheered the decision in Burwell v. Hobby Lobby, which held that certain businesses could be granted religious exemptions from some aspects of Obamacare. Specifically, the court found that Hobby Lobby didn’t have to cover certain forms of birth control its owners believed to be abortifacients. Oddly—hypocriticially!—the company had no problem paying for some of those same contraceptives before Obamacare. Does that mean conservatives have no standing to cheer the court’s ruling?
It’s wrong for liberals to use the government to force everyone everywhere to act the way that they want. And it’s tendentious for conservatives to insist that Indiana’s RFRA law, passed to forestall religiously minded businesses from having to contravene their beliefs, wasn’t really about discrimination.
The fight over this issue produces more heat than light, which may well be the point, especially at the start of a national campaign season for the presidential race in 2016. God knows neither side wants to acknowledge the limits of its point of view in legal, philosophical, or practical terms. But to the extent such battles get in the way of each of us getting on with the business of building the world we want to live in, we’re all the worse off for it.