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.”