Last spring’s controversy over Indiana’s Religious Freedom Restoration Act , which was intended to protect Christian businessmen’s right to act on their religious convictions but was widely seen as a legalization of discrimination against gay couples, raised important questions about what kind of country our Founding Fathers tried to create. This is illustrated in an editorial in the New Jersey Star-Ledger titled If Indiana's law isn't bigoted, prove it.
In the editorial, the Star-Ledger calls on the Indiana legislature to prove their intent was not to “provide cover for businesses that refuse [gays] service, emboldening the bigots” by codifying anti-discrimination against gays in law. “Until Indiana passes a statewide anti-discrimination law, 'religious freedom' will mean the freedom to discriminate,” the Star-Ledger urges.
As I have said before, a proper understanding of individual rights eliminates the conflict between religious freedom and gay marriage freedom. On this point, the Star-Ledger’s conclusion, which reached back to the Founding era in defense of its position, got my attention:
In the 1960s, fast food owner Maurice Bessinger refused to serve black people at his BBQ restaurant in South Carolina, arguing that requiring him to do so violated his religious belief in segregation. The U.S. Supreme Court found his argument frivolous, and ruled against him in the late 1960s.
Refusing to serve gays on religious grounds is just as indefensible. James Madison, the "father of our Constitution" and champion of the Bill of Rights, put it best back in 1789: "The civil rights of none shall be abridged on account of religious belief or worship."
This begs the question: Is there a civil right to force a private merchant to serve a consumer against his religious convictions?
I left these comments:
“James Madison, the ‘father of our Constitution’ and champion of the Bill of Rights, put it best back in 1789: ‘The civil rights of none shall be abridged on account of religious belief or worship.’”
The very first of the Bill of Rights, the First Amendment, recognizes freedom of association as an inalienable right. The right to freedom of contract is a fundamental and logical extension of the right to freedom of association. So did Madison mean that one person has the right to force a contract upon another? I think not. Madison did not intend for the government to become a morality dictator. In fact, people—in their private lives, even as businessmen—do have “a right to discriminate,” even on the basis of ignorance and bigotry. A pizza store’s refusal to cater a gay wedding, though morally disgusting, does not violate the gay couple’s civil or individual rights.
There’s no question that the impetus behind religious freedom restoration laws is to allow religionists to get around anti-discrimination laws as they relate to gays. Supporters of religious freedom laws won’t acknowledge the obvious, but 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 classes” did religious freedom laws arise.
But, that said, if not for anti-discrimination laws targeting the private sector, religious freedom laws wouldn’t be “necessary” in the first place. In fact, anti-discrimination laws protecting “selected classes” from the responsibility to respect others’ rights not to associate with them are the problem. The whole idea of “protected classes” is un-American and violates the principle of equal protection under the law. The government’s proper purpose is not to protect “gay rights” at the expense of “religious rights”—or vice-versa—but to protect individual rights equally and at all times. If equality and freedom mean anything, it means that it is just as wrong for gay people to impose their values on Christian businesses by legally forcing them to serve gay weddings against their owners’ consciences as it is for the government to impose Christians’ standards on gays by legally banning gay marriage.
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 in a free society 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, etc., is an intellectual power that no coercive power of law can match. 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 significant 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 bankrupted under withering public condemnation and economic competition. At worst, rejected customers could simply bring their business elsewhere.
To say laws against discrimination are needed to fight discrimination is tantamount to saying that reason is no match for ignorance. Nothing could be further from the truth, and bigotry shouldn’t be granted such exalted status. We shouldn’t allow our revulsion against bigotry to water down and undermine our sacred rights. 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. Leave businesses free to discriminate, and let the ones that do take the consequences.
Jeffrey A. Tucker has a great article on this subject for the Foundation for Economic Education titled Gays Need the Freedom to Discriminate. In his article, Tucker makes the case, as I have, that not only are anti-discrimination laws rights-violating: They are unnecessary for defeating bigotry. But Tucker goes a step further, strengthening the case against anti-discrimination laws by explaining that they hurt the ability to intellectually defeat bigotry by driving bigoted beliefs underground. Gays Need the Freedom to Discriminate is well worth reading.
'Religious Freedom Restoration' Laws and Tim Cook's Misunderstanding of America's Founding Principles