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Monthly Archives: March 2015

Thoughts on Indiana’s Religious Freedom Restoration Act

So, as a strong supporter of marriage equality and someone opposed to bigotry in all its forms, but also as a supporter of property rights and the freedom to associate (or not associate), how do I feel about Indiana’s new religious freedom law? The truth, not surprisingly, is that I’m somewhat torn.

A few thoughts:

1. First, what the law actually does: It does not explicitly allow business owners to deny service to gays or anyone else. Like the federal Religious Freedom Restoration Act and those of some 22 other states, it establishes a balancing test. It provides for a defense against government action or private law suits, if those actions “substantially burden a person’s exercise of religion.” The phrase “substantially burden” is telling. Someone invoking the law would have to prove that the activity, rule, or regulation in question was a “substantial burden,” not merely that it went against their religious beliefs. Even then, the government or plaintiffs could prevail if they proved that there was “an overriding government interest.” Therefore, the oft-cited hypothetical burger joint owner who wants to refuse to serve burgers to gay patrons is unlikely to prevail. In the past, the RFRA has served as the basis for suits to allow Muslim prison guards to grow a beard or Native Americans to use peyote in religious ceremonies.

2. That said, the law was not passed to protect Muslim prison guards or Native American peyote-smokers. This was designed to protect certain Christian business owners (bakers, florists) from having to provide services for gay weddings.

3. In general, I believe that bigots have a right to be bigots. People have a right to refuse to provide services or associate for whatever reason they want, justified or not. The proper response is not a law forcing people them not to discriminate, but for decent people, in turn, to refuse to patronize or associate with bigots. If Fundamentalist Florist refuses to provide flowers for a gay wedding, the answer isn’t to drag them to court, but for the rest of us to stop buying flowers from them. That’s why I’m pleased that Cato may be the only organization to file court briefs in favor of both gay marriage and the photographer that refused to photograph one.

4. The exception to the above occurs when discrimination is so wide-spread as to make life untenable for the group being discriminated against. A good example is the Jim Crow south. In that case, it may be necessary for government to prohibit private discrimination. Private action simply doesn’t provide a remedy, and it was not the case that if lunch counter A refused to serve blacks, they could just go next door to lunch counter B. That is why, despite my libertarian proclivities, I support the 1964 Civil Rights Act.

5. This does not, at the moment, appear to be the case for gays or gay marriage. The handful of bigoted florists and bakers that refuse their services to gays, does not yet appear to impose a substantial burden on gays who want to get married. There are plenty of alternative bakers, florists, and photographers. Those gays filing suit in these cases appear to be mostly trying to make a point. There are probably better ways to do so.

6. But, speaking of making a point, that’s what Indiana’s law is all about. It is Indiana lawmakers expressing their disapproval of gay marriage. The state had tried to ban gay marriage, but the federal courts rightly overturned that law. Now, lawmakers are more or less throwing a hissy fit. Cases about the rights of bigoted photographers and bakers are already making their way through the courts. We don’t have any idea yet, how they will turn out, which, at the very least, makes Indiana’s actions premature.

7. In the end, I think much of the commentary around Indiana’s law has been overly hysterical. That said, I would have voted “no.”


The GOP Candidates on Crime

As part of my ongoing look at where potential 2016 presidential candidates stand on the issue, my latest column for National Review Online examines Republican hopefuls and criminal justice reform. Surprisingly, most of the leading candidates are in favor of sentencing reform, ending-mandatory minimums, and making it easier for non-violent felons to expunge their records. While Rand Paul has been the candidate most identified with the issue, Ted Cruz, Rick Perry, Chris Christie, and even Jeb Bush have all bought in to the need for reform to some degree. The conspicuous exceptions are Scott Walker and Marco Rubio, who are sticking with the old “tough on crime” message.


The Pandering Begins

Saying that politicians pander is like saying that water is wet. But some pandering is more egregious than other. This is especially true when candidates who ostensibly believe in smaller government genuflect at the altar of a big-government program simply because it is supported by an important voting block. A classic example is Republicans who want to cut spending on public broadcasting or planned parenthood but shrink from reforming Social Security or Medicare. After all, seniors vote. I shouldn’t be disappointed, but I am.

The latest example of fair-weather principles, is the renewable fuel standard, a government mandate that benefits corn farmers in the Mid-West, while driving up the cost of gas and food, and actually harming the environment. But the first step on the road to president is the Iowa Caucus next January. Therefore, we are treated to the spectacle of supposedly free-market GOP candidates trekking to the Iowa Agricultural Summit and pledging their eternal fidelity to ethanol (with the notable exceptions of Ted Cruz and RandPaul).

I write about it in this week’s column for National Review Online:


One note: After the column was published, I was contacted by Marco Rubio’s office. He does indeed have a position on the RFS. He thinks it should be phased out someday, but not now. So add Sen. Rubio to the list of panderers.

Pizza Paranoia

Paul Krugman has found a terrifying new threat to America – Big Pizza. Yes, the Nobel Prize-winning economist turned columnist for the New York Times is deeply worried that owners of pizza franchises donate more money to Republicans than to Democrats.


Of course this could be because pizza parlor owners, as small businessmen, tend to be worried about the high cost of taxes and regulations. Obamacare, in particular, has been a burden for the restaurant industry. And, although Krugman invokes big corporate chains like Pizza Hut, in reality more than half of pizza restaurants are owned by independent proprietors. Even with the big chains, most stores are owned by individual franchisees. The average store employs about 15 workers.

Krugman disdainfully accuses pizza purveyors of cloaking the defense of their businesses in the rhetoric of personal choice and responsibility. “It’s up to the consumer, so the argument goes, to decide what he or she wants to eat, and we don’t need a nanny state telling us what to do.”

Silly us. Krugman knows better. Pizza owners are really out to make us all fat. Personal choice, Krugman avows, is a myth. “Even if you know very well that you will soon regret that extra slice, it’s extremely hard to act on that knowledge.” Pizza, he says, is very much like smoking.

Besides, he continues, eating pizza is not just a personal decision. Obesity imposes costs on society as a whole. Therefore, Krugman says without irony, “there’s a lot to be said for a nanny state.” To believe otherwise, Krugman warns, is to be “a free market fundamentalist.”

After all, Krugman says, failure to recognize the threat from pizza is anti-science, part and parcel with not believing in evolution or, worse, being skeptical of global warming. “Health experts may say that we need to change how we eat, pointing to scientific evidence, but the Republican base doesn’t much like experts, science, or evidence.”

There you have it. Pizza is evil. That’s not an opinion – it’s scientific fact.

Krugman doesn’t say whether he would ban pizza outright or just put a limit on it – say two slices per person per day. Or maybe just a special pizza tax – no doubt a progressive one based on income. Do the Koch brothers eat pizza?

As someone who has occasionally struggled with a few extra pounds, I can attest that we should all watch our diets. I will even concede that dieting is hard. But I’ve exercised more and cut out some sweets and generally tried to eat healthier. I’ve done this through the same individual choice that allows me indulge my taste for pizza on Friday nights.

But Krugman perfectly typifies the modern nanny state liberal. That which is good for you must be mandatory; that which is bad for you must be prohibited. Trans fats. Big gulp sodas. Salt. And now pizza.

Remember, first they came for the peperoni…