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Thoughts on Indiana’s Religious Freedom Restoration Act

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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.”

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13 Comments

  1. Tanner is missing the bigger issue: A mob is attacking a state and its governor for passing a law that doesn’t do what the mob states it does.

    Democracy never looks more dangerous than when it is led by the unthinking, emotionally-driven Internet-Media Mob.

    Liked by 1 person

  2. […] Michael Tanner offers some thoughts in a very similar […]

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  3. Steve Clark says:

    1. It makes no difference whatsoever whether a law explicitly authorizes discrimination or does so through abstract language that encompasses it. Fail.

    2. The Indiana law is not like those of the other states. It is an example of the new generation of RFRAs, first tried in Arizona, that are deliberately designed to target gay rights laws by extending coverage to private lawsuits. Fail.

    3. Hobby Lobby has now made the “substantial burden” safeguard illusory. Fail.

    4. The assurance that courts will says preventing anti-gay discrimination is a compelling interest is baseless. Boy Scouts v. Dale stands for the opposite. Fail.

    5. Being so extreme as to defend the right to discriminate against gays, blacks, women, Jews, Latinos, etc. in the provision of goods and services, jobs and non-harassing workplaces, housing, and every other endeavor except for a precious exception for Jim Crow hegemony is why the growth potential for Libertarian is so sharply limited. Fail.

    6. Telling gays that we’re “hysterical” for opposing our own oppression is insulting. Fail.

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  4. Richard Ebeling says:

    Michael Tanner is correct on the essential principle of freedom of association (and non-association). Either relationships (even commercial ones) are peaceful and voluntary, or they are not.

    For my take on this, my own article published today on, “Discrimination in Indiana: Private or Political?”:

    http://www.epictimes.com/richardebeling/2015/03/discrimination-private-or-political/

    Liked by 1 person

  5. […] Michael Tanner offers some thoughts in a very similar […]

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  6. Ross Levatter says:

    Michael, excellent analysis, as always. You might only have added, to clarify the fairly obvious distinction between rampant bigotry and religious tolerance, that (as far as I know) none of these religious florists and bakers have denied services to gays per se. They’re happy to bake a birthday cake for a gay or a floral arrangement for a gay person on Valentine Day. I wonder if opponents of this law would be so heated if feminists florists were trying to not provide flowers for polygamous “marriages” in Utah?

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    • Steve Clark says:

      Segregated theaters didn’t deny services to blacks per se; they were happy to let them watch a movie from the upper balcony. Montgomery buses didn’t deny transportation to blacks per se; they were happy to let them ride in the back of the bus. Please stop with the patronizing lecture to gays about how if we just stay in our place, we can have services.

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  7. Mort Guffman says:

    I think people are missing the broader picture here. There is a difference between providing a work-for-hire and providing a service that is available to the public at large. A baker has the right to refuse to make a cake for a gay couple – for ANY reason. That couple is directly HIRING the baker to create something for them. A person can turn down work for any reason whatsoever whether it be “this goes against my religious beliefs” to “I simply don’t feel like it.” I’m a freelance writer & editor. I was asked to provide editorial services for a religious publication – on the condition that I signed a statement saying that I believe, among other things, that the universe was created EXACTLY as stated in the book of Genesis and that marriage is solely between one man and one woman. In other words, things that I do not hold to be true. I obviously turned them down. That was my right.

    A supermarket clerk refusing to sell a pre-made cake to a gay couple does NOT have that right, because the customer is hiring the clerk directly. The clerk is paid by the store, NOT by the customer. The store does not have the right to deny access to anyone because the, again, the customer is not hiring the store directly. This is a HUGE distinction.

    There was a case of a florist in New Mexico being sued because she refused to provide services to a gay couple getting married. The court ruled against her. I’m really surprised that her defense wasn’t “I have a right to turn down work if I want to.” I think she would’ve won with that argument.

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  8. […] Cato Institute Senior Fellow Michael Tanner blogs: So, as a strong supporter of marriage equality and someone opposed to bigotry in all its forms, […]

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  9. fredtyg says:

    The bottom line, as I see it, is people have the right of association and non- association. Period. If you or I don’t want to do business with someone, fine, so long as it’s our decision to make. To suggest as some have that the Indiana RFRA is just a step away from us going back to segregrated bathrooms or restaurants is absurd.

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  10. […] (UPDATE:  At the outset, two views a bit different, though not completely different, from mine.  View 1 and View 2) […]

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