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Why RFRA Was Necessary
Ricochet readers who listened to last week’s Libertarian podcast know where I stand on Indiana’s Religious Freedom Restoration Act. Even if the political process surrounding the law’s adoption was flawed, the protections it seeks to afford for religious liberty are vital. As I note in my new column for Defining Ideas, the Indiana law did not occur in a vacuum. The more intemperate critics of the law would do well to consider that context:
…During the more than twenty years that the federal RFRA has been in operation, it has provoked relatively little litigation on provision of services issues, and courts have never read it as a blanket license to discriminate. For the most part the application of the law dealt with matters of faith and religion.
But that has now changed with the new insistence on broad antidiscrimination laws that prohibit any discrimination by any public accommodation, broadly defined, in the provision of any services, however personal or intimate, to gays and lesbians, even when they conflict with the religious belief that marriage is a union between one man and one women.
The typical pattern runs like this. In Elane Photography v. Willock, a lesbian couple in Mew Mexico inquired about having pictures taken at their commitment ceremony in the state at the time that same-sex marriage was not yet legal. When Elane declined, the couple hired another photographer, but turned the matter over to the New Mexico Human Rights Commission, which refused to apply the New Mexico version of RFRA to any business that was open to the public.
Something similar happened in Craig v. Masterpiece Cakeshop when its proprietor Jack Phillips refused to bake a custom wedding cake for a gay couple. The Colorado Civil Rights Commission ordered him to bake the wedding cake. In a public hearing, one of its commissioners, Diann Rice, added pointedly: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust . . . we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use . . . their religion to hurt others.” Among the remedies proposed was a “reeducation” order for Phillips and his staff, a solution more appropriate for a totalitarian regime than for our free nation.
At this point, it should be clear why religious groups have worked hard to pass an expanded version of RFRA. The Colorado Commission made the grotesque and inexcusable comparison of the refusal to do business in a highly competitive market with the mass extermination of helpless individuals in government gas chambers. Commissioner Rice’s insistence that Cakemasters has used its religion to “hurt others” means that anyone who turns a person down for business “hurts” that person. Her formulation shows no appreciation whatsoever for the relative harms involved in these low-level commercial interactions. Craig has dozens of alternative outlets clamoring for his business. Phillips and Elane Photography don’t have that luxury; they are now put to the impossible choice of closing down or violating their religious beliefs.
A respectable argument can be made that the language in the original Indiana statute sweeps too broadly relative to modern norms of discrimination. And it may have been better for Indiana to wait on doing anything until some state commission or court followed the path taken in Elane’s and Cakemasters. To assert, as some critics like the New York Times are, that supporters of the law are driven by “bigotry against gays and lesbians,” however, is a malicious libel against those businesses like Cakemasters and Elane’s Photography that have thought long and hard about their unwillingness to participate in marriage rites that are contrary to their religion — and who have no interest in turning away gay and lesbian customers in any other commercial activity. It’s time to turn the volume down in this debate and allow more civic space for peaceful diversity of opinion.
Good luck with that. One side wants space to obey deity, the other wants reeducation. There is no overlap. There is no middle ground.
Does it not give you pause that the government should be put in position of determining what constitutes sincere religious belief?
Prof. Epstein,
I support your Defining Ideas column and have already asked some folks to read it, as I am not getting through to them.
However I have a question about the above quote.
Is it ever a good argument to state that the consumer has some other place to go that will serve them?
I fear that would mean a lunch counter can hang the old “whites only” sign because the shop down the street will serve blacks even if they don’t.
While I don’t give a hoot about diversity (and will defend that statement if asked) I do care about capitalism. The economic playing field needs to be equal. I need to have the same access to purchase resources as the next guy, whether that resource is fuel for my truck or fuel for me (as in lunch). I need as many lenders considering my loan as possible because access to capital runs the country.
Is it legally appropriate, or economically appropriate, to say one can discriminate because there are enough neighboring businesses that will not?
The original definition of public accommodation included a nod toward either a monopoly or limited availability of the service.
There were other photographers – there are other bakers – and I note that two recent decisions out of Colorado tell bakers they must serve gay wedding cake, but absolve them of the requirement to serve anti-SSM wedding cake. One-way speech and association – yeah the 1st amendment means that.
Every customer discriminates and does so for his own reasons. I eat at this restaurant rather than that one, and it doesn’t matter why. The only thing that matters is that I am at liberty to do so because in a free market I am not compelled to conduct my commerce with a particular individual. For the market to truly be free that liberty must exist on both sides of the transaction.
Also, no one is talking about discriminating against people, only discriminating against events. Please argue that any business person should be compelled to perform a service for an event other than SSM that violates his religious principles. Stop discriminating by placing a SSM above other similar types of events. Should a Christian caterer be compelled to service a bachelor party with a bunch of strippers? This is a case of “I think what you are doing is wrong and will not be a part of it” rather than I will not provide you any service. How about this one, please, ardently pro-life Christian florist, arrange me a lovely bouquet as a gift for a friend to celebrate her abortion. Portrait artist, paint my threesome, I want to memorialize it. The list goes on. It’s not that you’re for or against religious liberty; you’re merely for SSM and don’t believe others should have the liberty to think and act differently.
King Prawn don’t we get into one serious slippery slope then, leading to, as Herbert Woodbery points out above, government deciding what is or is not a religious believe?
For instance, anyone not married in the Catholic Church is living in sin to me. Would I be on good legal footing were I to refuse service to anyone but Catholics? It’s not their just their wedding, its’ their cohabitating that is sinful to me. So no groceries for their household?
Yes. I actually don’t see how believers (of which I am one) should get extra protection for their consciences that non-believers don’t get. If you are selling cakes, and someone wants to buy one of your cakes, and you refuse to sell to that person, that’s discrimination. I’m not actually sure that should be illegal, but I think I can live with it.
But it is clear as daylight to me that it is involuntary servitude to force someone to do work they do not choose to do.
I wonder what would happen if a bakery agreed to make a cake, but declined to put two men or two women on top. Would that be enough to get them fined, and or bring on an onslaught of protest and death theats?
Could we remove “religion” from this discussion and replace it with “conscience,” as in “goes against mine”?
Either that or we need to quickly pass an amendment–and there are already quite a few, so why not?–to the original Civil Rights Act of 1964 to “protect” people who belong to religions.
We have to address this because the next wave of lawsuits and criminal prosecutions are coming from the hate speech laws.
The flaw is not in the American people or in the Constitution. The flaw is in the Civil Rights Act.
It has always been interesting to me that the Equal Rights Amendment failed to pass by the 1979 deadline. The most often cited counterargument to it was that the Civil Rights Act had already created a legal mess.
Richard,
All of the noise is coming from one side. This is the concentrated effort of an ideological pressure group. As much as a call to reason is attractive to me, I think this situation may yet call for a louder voice for the Religious push back.
The point that the people involved were more than willing to do business with Gays & Lesbians involving products that didn’t interfere with the free exercise of their faith, demonstrates clearly that hate is a ridiculous malicious libel.
Sometimes the middle of the street is the most dangerous place to be. Either we continue to hold Religious Liberty as a supreme value or we cave to an obviously totalitarian secularity.
Regards,
Jim
Try out this idea for a moment:
Half of all of the American mainline Protestant churches split in half–in half!–over the 2000s over gay rights, both the ordination of gay clergy and gay marriage. This means that half of the American Protestant population is Christian in every way and also embrace gay rights in every way.
Why don’t we start with them as a political bloc with which to refashion the Civil Rights Act so that people are free to profess and act on their religious beliefs and convictions in public?
Let’s start with a big conference.
But should government compel you to participate in their sin against your sincerely held belief that it is sin? We’re not referring to general denial of service here (though a case could be made that the market would take care of that without government support of the practice), we’re talking about participation in events through providing service to those events.
There are other grocery stores.
I see one flaw in the argument that Tony De Seno makes. The baker is not denying a person the right to buy a cake. What he is refusing to do is to design and create a cake which specifically celebrates an event which he has moral objections to. If the gay couple wanted to walk into his establishment and buy a cake for their wedding without asking for any specific changes from the basic design of a heterosexual couple, I doubt that the problem would have occurred. Simply swapping out the male/female dolls on the top of the cake could have been done away from the bakery.
This isn’t groceries, ready made products purchased off of a shelf. It is an item specifically designed and produced with very specific elements in its design which are meant to glorify the union. That is a very different situation.
As to the photographer, I can well understand why a person not normally in regular contact with gay people and whose beliefs are incompatible with the gay lifestyle might find attending such and event more than a little uncomfortable. I have known gay people throughout my life, many I consider good friends. However, I have never been particularly comfortable with their displays of affection towards one another. Public displays of affection are always, whether homosexual or heterosexual, somewhat difficult to deal with. A wedding would likely be a place where such would be pretty overt. I can well see why a person of strong religious conviction might find it objectionable to photograph such an event.
In both cases, as has been stated repeated elsewhere, a large number of alternative businesses are available to fulfill the needs. Compelling anyone to perform that kind of service merely to make a point borders on the absurd.
I understand what you are saying and I’m with you. There is a difference between operating in the public square and being asked to work on a private affair.
However, I think Prof Epstein is NOT making that distinction, based upon that quote. From that quote he appears to be arguing that any discrimination is OK so long as there is a store selling a similar product available.
Maybe I’m reading too much into it. I hope he comes back to clarify.
He is a libertarian, and that is a pretty normal position from that perspective. Violence had to be done to free association as the lesser of two evils between continued, government sponsored/enforced racial discrimination infringing on free association rights. We do not have such an historical conflict in SSM no matter how loudly the proponents scream.
Tommy, I thought Prof. Epstein was pretty clear that in these cases, where the photographer would have to participate in the SSM ceremony or the baker would have to craft a custom cake, that the business owner’s religious beliefs should be that which is accommodated, and they should be permitted to decline service. He made this point–distinguishing between walk-in service and participation in the actual SSM ceremony–in The Libertarian podcast that covered this issue. I highly recommend that podcast. It is an absolute clinic on the subject.
Speaking solely for myself, however, I find that there is very little danger in permitting business to decline to serve gay people, or in your case non-Catholics. Such businesses would quickly find themselves with no customers. Although you draw a comparison to the Jim Crow South, as I’m sure you know, the regime of segregation there was one enforced by law for decades and so ingrained in the culture that it presented a unique case where the market alone was insufficient to do the trick. A rural Indiana pizzeria’s hypothetical refusal to cater a made-up gay wedding doesn’t meet that standard by a long shot.
I’m not entirely sure what you mean, but: (1) half of the “mainline” Protestant churches in America do not represent half of Protestants in America. The latest figure that I’ve seen is that about 15% of Americans are members of the “mainline” denominations.
Also, most “non-mainline” Protestants — and apparently half of the “mainline” churches that split — would not consider the pro-gay “churches” to be “Christian in every way.” To the contrary, I think that the majority of American Protestants probably think that the “mainline” denominations abandoned Christianity some time ago.
Interesting numbers. I haven’t looked at these numbers in quite some time. I used to follow it because I thought it was sad to watch these once-great institutions break up.
Let me leave my sweeping inaccurate statement aside, with my apologies for making it without editing it, and restate my idea with information I know to be true :) : Some of the mainline Protestant churches–Episcopalians, Methodists, Presbyterians–have split up in the last fifteen years over ordination of gay clergy and gay marriage. Those gay-rights-supporting Protestant churches are Christian and Protestant in most every other way. They are a sizable group–I don’t know exactly how big, although my sense a few years ago was that the split was in the middle, so half and half–who presumably would want legal support for their rights to profess their faith and act on it in public.
The point I’m making is that we need people who are in both camps at this moment to form the kernel of a large group of people with an interest in protecting religious freedom.
Consider: the Ku Klux Klan (or the American Nazi Party, if they’re still around) wishes to hold a public ceremony honoring their Grand Wizard and they contact a bakery to make a cake to celebrate the occasion. The baker, not wishing to endorse or support the KKK, refuses – and specifically states the basis for his refusal. The public ceremony presented by a legal political group is lawful. Can the State force the baker to make the cake? Probably not. [And, of course, if the baker wholeheartedly endorsed the idea and baked the cake, the bakery would probably go out of business because everyone else would boycott it!]
Or: two nudists (a man and a woman) wish to marry in a ceremony at their favorite (legally operated) nudist colony. They seek to hire a photographer, who, being a religious conservative and uncomfortable with the whole idea, declines to take the job. Can the State force the photographer to photograph the event? Probably not. [And there would probably be no shortage of other photographers who would jump at the chance to photograph this event!]
The possible examples are endless (e.g., gay bakers who are politically active registered Democrats are asked to bake a cake for a wedding of conservative Republicans who are promoting their wedding as a public event advocating against the passage of a SSM bill by the state legislature – the bakers would be celebrated for their refusal to provide a cake!).
Would anyone be surprised or outraged when the bakers or photographers in these examples declined to provide service? Would state civil rights commissioners be proposing re-education? What has become of the most basic conception of individual freedom in our country? If one belongs to certain favored groups, one can force – with the power of the State – others to provide services; if one is not in those favored groups, one must deal with the fact that service providers may choose, for their own reasons, not to provide service.
It seems to me this would be far better resolved by letting the marketplace deal with the issue.