Indiana’s controversial new Religious Freedom Restoration Act is another bad fix for a problem created by bad law to begin with.
The impetus for religious freedom restoration laws (RFRLs) is the increasing, and proper, nationwide legal recognition of the individual rights of gay people, especially the legalization of gay marriage. This trend clashed with many biblical dogmas that consider homosexuality to be a sin. The result has been increasing instances of private businesses running afoul of anti-discrimination laws by refusing to serve gay couples because of the business owners’ religious beliefs.
The impetus for religious freedom restoration laws (RFRLs) is the increasing, and proper, nationwide legal recognition of the individual rights of gay people, especially the legalization of gay marriage. This trend clashed with many biblical dogmas that consider homosexuality to be a sin. The result has been increasing instances of private businesses running afoul of anti-discrimination laws by refusing to serve gay couples because of the business owners’ religious beliefs.
Proponents claim the Indiana law protects religious liberty, not give private businesses the right to discriminate against gays for religious reasons. But there’s no getting around it. RFRLs intend one thing; to carve out exemptions from anti-discrimination laws for religious people as such laws relate to gays. The issue is clear-cut: Either a businessman can refuse to serve gays in conformance with his religious teaching, or he can’t. Supporters of RFRLs won’t acknowledge the obvious, and the stench of hypocrisy hangs over them. Religions never objected to anti-discrimination laws intended to outlaw discrimination based on race, national origin, gender, or religious affiliation. Only when gays were added to the list of “protected groups” did RFRLs arise.
Proponents’ disingenuousness sidesteps the basic problem: Anti-discrimination laws targeting the private sector violate the right to freedom of association, which encompasses the right to discriminate in one’s private associations. If not for anti-discrimination laws, RFRLs would not be “necessary,” because private business owners would not be forced to contract with gays against their religious convictions. Repeal of anti-discrimination laws, not enactment of dishonest RFRLs, should be their focus.
But opponents of RFRLs also get it wrong. In response to Indiana’s law, Apple CEO Tim Cook declared in a Washington Post op-ed that Pro-discrimination ‘religious freedom’ laws are dangerous. He writes:
There’s something very dangerous happening in states across the country.
A wave of legislation, introduced in more than two dozen states, would allow people to discriminate against their neighbors. Some, such as the bill enacted in Indiana last week that drew a national outcry and one passed in Arkansas, say individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law.
Others are more transparent in their effort to discriminate. Legislation being considered in Texas would strip the salaries and pensions of clerks who issue marriage licenses to same-sex couples — even if the Supreme Court strikes down Texas’ marriage ban later this year. In total, there are nearly 100 bills designed to enshrine discrimination in state law.
Cook views anti-discrimination laws and anti-gay marriage laws as moral opposites. In fact, they are two sides of the same rights-violating coin. Cook goes on:
These bills rationalize injustice by pretending to defend something many of us hold dear. They go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality.
Men and women have fought and died fighting to protect our country’s founding principles of freedom and equality. We owe it to them, to each other and to our future to continue to fight with our words and our actions to make sure we protect those ideals. The days of segregation and discrimination marked by “Whites Only” signs on shop doors, water fountains and restrooms must remain deep in our past.
But Cook has a fundamental misunderstanding of American ideals. Yes, we should continue the fight to protect the ideals of freedom and equality. But first, we must learn what freedom and equality actually mean.
America is a nation Founded on the principle of individual rights. Rights protect freedom of action in the social context, so long as one’s actions don’t violate the rights of others; i.e., involve the initiation of physical force against another. Critically, rights do not guarantee anyone's conception of moral action, just action. A “right” to act only in ways the government approves of is not a right, but a special privilege. A government with the power to dictate personal morals, and to recognize rights only of select groups, is not a legitimate government. It is a dictatorship.
That said, the purpose of rights should not be construed primarily as protecting immoral actions. Some may indeed exercise their rights irrationally and/or immorally, but such instances are side effects of rights’ primary purpose. The individual right to act free from the coercive interference of others is a necessary social condition of human life and flourishing, because life requires action in support of one’s life. The purpose of rights is to protect constructive, life-enhancing action, despite the fact that some actions may be destructive.
As I wrote in response to the Liberty Ridge Farms case in New York, “Every individual has a right to live by his own moral standards, even irrational ones, so long as his actions don’t violate the rights of others. But this issue is not primarily about freedom of religion and conscience; rather, it is about freedom of association and contract.” Freedom of Association resolves both the marriage equality and religious freedom issues. Gay people have a right to marry. Private businesses have a right to do business with whom they please. Both are forms of contract, and freedom of contract is a fundamental extension of freedom of association. Freedom of contract does not include the right to coerce others into any contract.
Importantly, “equality” under American principles means equal protection of individual rights—including rights of association—under the law. Equality then forbids legally enforced segregation (E.G, Jim Crow and Separate but Equal doctrines). But equal protection under law also forbids legally-enforced integration. Equality and freedom in American terms means equal protection all private individuals’ right to freely associate, or not, in his private dealings with other people. This includes Christian businessmen’s right not to serve gay couples (and to accept the consequences, such as public scorn and loss of sales and profits due to boycotts by disapproving potential customers). If the equality that Cook upholds as a Founding American ideal means anything, it means that it is just as wrong for Tim Cook to impose his values on Christian businesses by legally forcing them to serve gays against their conscience as it is for the government to impose Christians’ standards on gays by legally banning gay marriage. If the freedom that Cook upholds as a Founding American ideal means anything, it means the freedom not to associate with whom one prefers not to associate with.
Personally, I oppose religious freedom restoration laws because such laws carve out a special exemption to anti-discrimination laws only for religious people, and because in any event freedom of religion is not the fundamental issue. Freedom of association is the fundamental issue, and under that principle anti-private discrimination laws are the problem. Fully and consistently upholding individual rights, and specifically the right to freedom of association, resolves the conflict without violating either the rights of the religious or the rights of gay people.
Anti-gay bigotry, as with all bigotry is disgusting and ignorant. But laws banning private discrimination is no more the American way than prior laws enforcing segregation were. The proper way to overcome irrational discrimination is not through law (i.e. force) but through reason and persuasion. Private action under First Amendment principles, such as speaking, writing, boycotting, public protests, and making an example by your own actions—as Cook is doing with Apple’s strong anti-discrimination business policies and culture (which Cook explains at length in his article)—is an intellectual power that no coercive power of law can match. Indeed, anti-discrimination laws would not have been possible without first defeating bigotry and prejudice in the broader culture. The 1964 Civil Rights Act was a consequence, not the start, of the Civil Rights Movement, which was winning the moral battle against anti-black bigotry on the battleground of ideas. The spontaneous national outcry against the Indiana law—and the rush by Indiana (and Arkansas) lawmakers to amend their religious freedom laws in response—proves the point. In the absence of anti-discrimination laws, bigotry could never gain a foothold in today’s culture. Public outcry would tamp it down wherever it arose. Discriminating businesses, while free to operate, would be marginalized into insignificance and even bankruptcy under withering public condemnation and economic competition.
Cook is wrong on his key point. “[T]he very principles our nation was founded on” do not include turning the government into a morality dictator. Rights protect freedom, because freedom is a fundamental requirement of human nature. But there is a bright moral line between something being legal and something being moral. Legality signifies implementation of an underlying political principle, not a moral sanction of all particular actions that may be taken under that principle. Freedom of association does not mean “pro-discrimination,” even though some may use that right to irrationally discriminate, any more than freedom of speech means “pro-Nazi,” even though some may use that right to advocate evil ideas. Freedom of association simply means freedom of association, just as freedom of speech simply means freedom of speech. We shouldn’t allow our revulsion against bigotry to water down and undermine our sacred rights. Bigotry should never be granted that kind of status.
I sympathize with Cook’s moral outrage with laws that masquerade as protections for religious freedom, but effectually sanction discrimination against gays. But I also understand religionists who believe their freedom to practice their religion in a non-rights-violating manner, however irrational and immoral that practice, is under attack. The resolution of this conflict requires upholding everyone’s individual rights equally, including the right to freedom of association.
Related Reading:
The False Alternative of Religious Rights vs. Gay Rights—Michael J. Hurd
Is RFRA Unconstitutional?—Sasha Volokh, Washington Post
Gay Marriage: The Right to Voluntary Contract, Not to Coercive “Contract”
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