Last March, I defended Arizona Governor Jan Brewer’s veto of a bill that would allow business owners with sincerely held religious beliefs to refuse to serve gays. I wrote:
Legally forcing religious people to contract with gays is a violation of freedom of religion. But that is a consequence of a broader rights violation. The issue of religionists' right not to serve gays is not fundamentally a religious freedom issue, as I have argued. The issue is one of freedom of contract, a right derived from the broader principle of the right to freedom of association.
The Arizona law specifically targeted gays and protected the contract and associational rights only in a limited way and only of a narrow segment of the population—religiously oriented social conservatives. This is grossly unfair. What about the underlying laws banning private discrimination? What about non-religious people? Why don't their sincerely held non-religious convictions matter? Is it right for any special interest group to be granted special exemptions from anti-discrimination laws, laws that in and of themselves violate the rights of all? I think not.
The issue can not and should not be considered outside of the context of the broader rights to contract and association. The reason: Rights are universal, meaning they are held equally and at all times by all people, and under a proper government must be protected equally and at all times. The Arizona law obviously didn't meet that test.
The proper course for these social conservatives is to call for repeal of all laws banning private discrimination. Anti-discrimination laws violate the rights of individuals to choose their associations. Such laws should be rescinded. Remove these underlying, unjust laws, and religious freedom follows.
Jacob Sullum had a different view. In his article at Reason.com, Should Libertarians Support Religious Exceptions to Generally Applicable Laws?, Sullum wrote:
If all laws were legitimate and fair, the Supreme Court's position in Employment Division v. Smith (which I take to be Mazie's position as well) would make sense. To use the classic example (offered by the Court itself in the 1879 polygamy decision Reynolds v. United States), people should not be exempt from laws against murder simply because their religion demands human sacrifice. More generally, religion should not override laws that protect individual rights, which from a libertarian perspective is the main (or only) justification for government. So if people really did have a right to free birth control, allowing some employers to violate that right because of their religious beliefs could hardly be considered just. Since there is no such right, it seems to me that letting some people escape this unjustified mandate is better than forcing everyone to comply. I can see why people might be offended by such special treatment, but to me that is an opportunity for a broader discussion: If it seems reasonable to contemplate a religious exception to a generally applicable law, that is a pretty good reason to question the law itself.
I see Sullum’s point. But where does that leave equal protection under the law? In my aforementioned post, responding to a correspondent’s comment, I wrote:
The Arizona law didn’t apply equally to everyone. Once you start carving out special exemptions for special interests, we’re heading farther away from objective law. There’s enough of that going on already.
Food for thought.
Is RFRA Unconstitutional?—Sasha Volokh, Washington Post