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RFRA and the Presumption of Tyranny
Over on The Federalist, a social worker under the pseudonym “Joseph Turner” offers a poignant and powerful explanation as to why it’s wrong for the government to compel him and his colleagues to provide advice that violates their consciences. Instead, he argues that the law should merely require that they refer such patients to providers who can help them without moral qualms. It’s an entirely reasonable standard and the fact that the state is currently empowered to run rough-shod over Turner’s conscience and religious convictions is a frightful and depressing illustration on our public life. The problem is very real and very important.
Which is why it’s a shame that his proposed remedy — a RFRA style law currently under consideration — is such an awful and counterproductive idea. As noted by people far smarter and better-informed than I, there is a strong case to be made for public accommodation laws to apply to monopolies, public utilities, and in circumstances where oppression has been enforced by the state. But in circumstances short of that list — that is, in the overwhelming majority of day-to-day interactions we have — the default setting should be of absolute freedom of association. The problem here is not that Turner has been denied a carve-out to preserve his conscience; rather, it’s that he has to ask for one in the first place.
When RFRA laws are presented — as they occasionally are — as a stop-loss to prevent the most obvious and serious abridgments of liberty, that is one matter. But when they are offered — as they more commonly are — as a laudatory and sufficient means of preserving freedom of conscience, they are a menace to liberty. Indeed, given the perverse incentives they operate under, it’s actually in the aggrieved parties’ interest to claim as narrow a carve-out as possible while implicitly denigrating others’ concerns or objections (“Your honor, of course, the government should be empowered to compel certain behaviors from people who believe [insert reprehensible, odious contention here]. Rather my client, is merely asking that his specific convictions be excluded from an otherwise generally-applicable law against whose existence we make no objection.”)
The government should not be in the business of granting boons that provide liberty to some citizens under some circumstances. Let people interact freely and — if no other effective recourse can be found — only then consider, with the greatest reluctance and caustion, whether an exception to liberty might be justified.
Published in General
Just so. The problem is that we have lost the concept of “freedom to contract.” As stated in the OP if there is a government-backed monopoly special rules need to be enacted. For everything else the burden should be on the government to establish a compelling need to interfere with private contracting. The rational counterargument is that malign cultural norms such as racial discrimination might not be addressed in the absence of government action. Fine. But government action should be “sun-setted” so that time is given to permit cultural norms to change and then full contracting rights are resumed. If malign customs return after the sunset it suggests that something larger is going on that government is powerless to address.
Tom,
I agree 100%. Liberties exist period with or without the Constitution. Our Constitution has been written to explicitly defend Liberty in specific situations. The Free Exercise of religion is one of the very first Liberties so explicated. Free Exercise should be assumed to be unlimited. Exceptions to this unlimited nature must be justified not the other way around.
Regards,
Jim
I agree that the goal should be freedom of association for all. I am disinclined to oppose RFRA laws though as they are an improvement over current law in many places.
Let’s not let the perfect be the enemy of the good. Or the perfect be the enemy of the better than we have it now.
Hear, hear! Another point I would make is that sometimes we have to sell the good as a means to preserve freedom of conscience precisely because they’re a stop-loss to prevent the most obvious and serious abridgments of liberty.
Frankly the people hounding bakers out of business for not wanting to participate in their wedding don’t care that they’re abridging the liberty of the bakers. To them the bakers are un-people because they hold an opinion opposite the zeitgeist of cultural acceptance and therefore are not entitled to the protection of the law or freedom of association.
Those benefits are reserved for our cultural vanguard who know all too well what dumb, backwards thinking bigots their forebears were.
Agreed and — as I said — when RFRAs are presented as an unfortunate-but-necessary band-aid, that’s fine and arguably for the best. What I’m becoming ever increasingly confounded by is how they’re becoming nearly synonymous with the preservation of religious liberty.
I don’t want people to mistake temporary, better-than-nothing, treat-the-worst-symptoms treatments for something that really remedies the problem.
Expanded metaphor: Pushing RFRA without also making the case for freedom of association is like putting a bunch of band-aids on a serious wound and then wondering why no one thinks it’s that serious.
Excellent article. I have to agree with Turner, however, and not with most of you here.
It seems to me that the founders put religious freedom as a first right because they understood the concept of two jurisdictions–the church and the state. The state, in other words, had no jurisdiction in the realm of the church. It recognized freedom of the church as inviolable. Initially the church was the institution, but Protestants came along and invoked idea of individual conscience as a kind of church. So freedom of the church was a vital check on the state. I think that is a far more powerful idea than freedom of association, disembodied from any institution or larger concept of separation of jurisdictions, because there is nothing concrete to stand on the other side of the line. And as we know, freedom of association continually loses out when there is nothing counteracting the state as an authority.
In other words, when the state claims to have all power and grant all power, it is just too easy to say that certain things (generally various kinds of rights) trump freedom of association. And it has time and time again. Since I think that freedom of conscience is the freedom that underlies all other freedoms, I guess I just can’t see freedom of association as the panacea that most do here. I think we need to remember and explore the meaning of separation of church and state, which exists to limit the state and protect individual rights. I think that is more powerful and concrete than a general concept of freedom of association.
That’s easy for you to say, Tom. You’re not the one who’s looking at possible jail time for refusal to participate in mortal sin.
Do you have such a proposal that might actually pass somewhere? We have these tools, they almost occasionally work. Right now counselors are under threat. Right now religious schools are under threat. Right now Christian private citizens engaged in trades that 5 minutes ago were ignored by the government are under threat.
And you are griping that the only tool to hand isn’t the one you prefer?
Yeah. That. This is why I have so little faith in the libertarian contingent’s frequent claims that they’ll defend religious liberty. They frequently don’t, and then gripe that we’re doing it wrong -which they’ll keep doing as we’re marched into jails.
As others have said, I generally agree, Tom, but also think we are beyond the point at which the philosophical position is also a practical one. It’s sad that state legislatures around the country believe it necessary to make explicit protections which are implicit under the 1st Amendment and legal tradition. But it’s sadder still that those refinements will not protect anyone.
Even among right-wing voters, Americans no longer agree on 1st Amendment protections. I have yet to even read a modern interpretation which seeks to explain why the freedom of religion, freedom of speech, freedom of the press, and freedom of assembly are expressed as a single Amendment — a single freedom, manifested in various ways.
This. I agree with what Tom is saying in principle, but in the real world it amounts to “all or nothing” on this issue, where if we get nothing other people, not the ones claiming to stand on principle will suffer.
And let’s not forget that the suffering in question is the direct and foreseeable consequence of a policy pushed on us by the very people now demanding said all or nothing approach.
Note:
Corrected; thank you.“Colleges” = typo. Should be “colleagues”.
I can see the point, but we’ve got a long way to go here. The government has been feeling free to tell us who we can and can’t associate with and how for quite a while now. Introducing the idea that it has no business telling anyone that gives you at best confused stares and at worst accusations that you want to bring back “Whites Only” lunch counters (which ignores that Jim Crow Laws were just that, Laws: another example of the government telling us who we can and can’t associate with and how).
The RFRA isn’t a band-aid, however. At the very least, it gives us a foundation in which to push back which is why the left demonizes it so. The Progressives don’t allow any hindrance in telling us what we can and can’t do.
But I can concede this point: we Social Conservatives can’t stop at RFRA and say, “Well there, we’re okay.” We’re not (because Social Progressives never stop), and because we have to change the socio-political narrative. We have to say that we need this now, but that we don’t need the government micromanaging our social and commercial lives.
Essentially, we SoCons get upset because Libertarians don’t seem to defend religious liberty well or anticipate threats to it. We should at least understand that Libertarians don’t want us to stop at defending our own rights.
RFRAs are passed for one reason only – to ensure a court uses a compelling state interest standard when judging state actions enforcing laws of general applicability that are being challenged by a request for a religious accommodation.
How do you see them about anything other than religious liberty?
Exactly this. It’s right to complain that half a loaf is less satisfying than the full thing, but it’s entirely wrong to claim that half a loaf is a menace to nutrition. RFRAs dramatically enhance freedom, and they do so in a way that allows laws that are passed without consideration of a particular, often somewhat obscure, issue to avoid trampling those liberties. It’s true that in an ideal world, all legislators would be strong advocates of freedom of association and that all laws would have days long considerations of the freedom of association consequences that resulted in laws being passed that did not abridge the relevant rights. It’s also true that in an ideal world, judges would not discover abridgments to those rights in law that did not obviously contain them.
Short of an obviously unattainable utopia, RFRAs are helpful. In this world, this is synonymous with “RFRAs are helpful”.
I don’t disagree with your accusation here — it is rather easy for me to say at the moment, and I’ve no right to claim any great virtue in doing so — but I’ll add that I’ve no illusions of it staying that way. Moreover, I’d point out that “Women and children first!” can sound rather self-interested depending on who’s shouting it to whom.
^ This.
As Douglas said, this is true so long as they’re not presented as a solution, but as a stinks-but-the-best-we-can-do-at-the-moment kind of thing.
CU & Tom,
Sounds like a plan.
Regards,
Jim
Perhaps you could link to some of the activism you’re opposing? As it was, it looks awfully like the RFRA you condemn as an awful and counterproductive idea is something you oppose. Now I get the impression that this menace to liberty might be something that you support, but that you’re upset by the wrong arguments for freedom of association being made.
We can’t stop at anything. Happily, we generally win (in terms of freedom of association, the coming tidal wave of school choice is the most dramatic change since the Civil Rights Act).
In politics there are no permanent winners because there are no permanent losers. No one pretends that we can stop when a RFRA is passed. So far as I know, no religious freedom organization has ever shuttered its doors after achieving success.
Obviously, we have to keep on fighting, but this applies always and everywhere. We ought not to oppose the passing of Right to Work, even though there are plenty of problems created by unions in RtW states. We ought not to oppose budget cuts because there will still need to be more cuts made in the future.
Decrying positive steps as awful and counterproductive because you want more of them is a decision that can be made in almost any area of politics and is misguided in each and every one of them.
The Girondists would like to have a word with you…
I was talking about this with some friends last night. The elephant in the room is that if we are to do this correctly, we will need to protect businesses that refuse to serve blacks. That was the origin of this whole fiasco.
That means that we need to concede that people are going to make poor choices, but that we don’t need to support those poor choices. Nowadays, can you imagine a business that refuses to serve blacks staying in business long? Contrary to popular belief on the Left, racism is a huge social stigma.
And the origin was not forcing business to accomodate blacks, it was forcing businesses to either refuse service or serve blacks in specific ways. Again, micromanaging our social and commercial affairs. Bus companies, for example, didn’t want to force blacks to the back because in a world where there’s multiple ways to get from point A to point B, alienating a percentage of your customer base is bad business.
Ending Jim Crow is more towards recent history. Go back even further.
Despite the impression I seem to have given, I’m not opposed to incrementalism per se; I just don’t want us losing the goal of an assumption of liberty because we’re (understandably) so busy fighting these defensive batter. We don’t need to dive in when wading out might work better. (Sorry, I can’t stick with a single metaphor today).
Also, it’s worth noting that that the logical extension of the kind of control the Left is pushing for on this would require one to cater a Klan-themed wedding. After all, who is a baker to impose his beliefs on others?
Do you mean them as a counter-example to “no lost causes”? In that case I’d note that the excesses of the Jacobins were, indeed, largely reversed. I’ve spent many happy seven day weeks in France, enjoyed church services that didn’t involve hymns to Reason, and hung out with my brother’s French exchange, whose family retains many of the benefits it accrued while titled and that were restored to them after the worst of the Napoleonic excesses were done with.
Do you mean them as a counter-example to “no won causes”? The Girondists had two major causes; they didn’t want the terror and they didn’t want the monarchy. They’ve succeeded pretty well, but we’re even now being reminded that the possibility of terror is not banished from France. I will admit that monarchy is pretty close to being a lost cause, along with slavery. ISIS are trying to make both cool again, but they’re probably not going to succeed in France. I think that T.S. Elliot, who I misquoted, did not intend his rule to be entirely universal, but if he did, I concede that you have a point here.
If you mean that they are people who would argue against stopping when a RFRA is created, then I draw your attention to the tense I used. While their position was once stronger, I believe there are few Girondists attached to the RFRFA clause. I suspect that you cannot name or find an example, although I would welcome correction on that.
There. Fixed that for you.
Not be confused with protecting businesses from well-deserved boycotts and public (peaceful) protests. That’s everyone else’s freedom of association.
I was meaning mostly that they were all executed (OK, there were a few survivors). But I will concede that the people who executed them were later executed themselves. I don’t know if this made Girondists feel better about their cause.
Were you disagreeing with my claim? I think the “Jacobins kill the Girondists, are then surprised when this doesn’t work out well for them” is a pretty good analog for the Presidential primary this year, but I’m not sure what it means with regard to RFRAs.
The link doesn’t take me anywhere. What are they compelling him to do?