Monday, June 1, 2015

Four belated thoughts on the Indiana RFRA

I’m about two months late in responding to this, but now that school’s out I have time to articulate what I felt at the time of the controversy. I hope what I lost in timeliness is made up for by the added time I’ve had to reflect on all that went down.

1. Both prominent sides of the public debate surrounding the law are wrong, because freedom of association should be protected in all cases – whether or not it’s religiously motivated.

The left is wrong that private discrimination against X, Y, or Z group should be illegal, or that making it illegal is an effective long term strategy to hasten social acceptance of those groups. The right is wrong because the RFRA gives unjust and illogical special privileges to religious people in ways that may be unconstitutional.

I support gay marriage, and I think social conservatives who oppose it are mostly bigoted, ignorant and wrong. I vociferously oppose discrimination against gay people for any reason. But even so, private discrimination of any kind should not be illegal. Making it illegal is not only an ineffective means of combatting it, but also a counterproductive and dangerous one. David Bernstein explained why very well back in 2010. Some excerpts:
  • Antidiscrimination laws…typically follow, rather than cause, the liberalization of attitudes toward minority groups. Contrary to conventional wisdom, the effect of antidiscrimination laws on public attitudes is rarely dramatic.  Even the 1964 Civil Rights Act did not noticeably accelerate the pace of liberalization of whites’ racial attitudes.
         .
  • [F]ederal antidiscrimination laws also apply to discrimination based on religion, sex, age, disability (including one’s status as a recovering drug or alcohol addict), pregnancy, marital status, veteran status, and even military recruiters.  State and local antidiscrimination laws cover everything from sexual orientation to political ideology to weight to appearance to membership in a motorcycle gang.
         .
    The proliferation of antidiscrimination laws explains why libertarians are loath to concede the principle that the government may ban private sector discrimination.  There is no natural limit to the scope of antidiscrimination laws, because the concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination. Is a school admitting students based on SAT scores? That is discrimination against individuals (or groups) who don’t do well on standardized tests! Is a store charging more for an item than some people can afford? That is discrimination against the poor! Is an employer hiring only the best qualified candidates? That is discrimination against everyone else!
         .
    The obvious retort is that antidiscrimination laws should be limited to “real” discrimination.  But there is no consensus as to what constitutes “real” discrimination, nor, not surprisingly, does there appear to be any principled definition that legislatures have followed….

         .
    The result has been, for example, attempts to force private Christian schools to hire unmarried pregnant teachers, to suppress campus speech that allegedly creates a “hostile environment,” to force private membership organizations to enact politically correct membership policies, to force individuals to live with gay roommates, and to prosecute neighborhood associations for objecting to the placement of halfway houses in their neighborhoods.
         .
  • Concern for the financial bottom line mitigates the temptation of economic entrepreneurs to discriminate; concern for the electoral bottom line, meanwhile, often leads politicians to stir up resentment against minorities…

Arguments that “if you’re unwilling to sell to everyone, you shouldn’t be in the business!” are totally unconvincing to me, and in fact angering, because who are you to decide who can and cannot start a business? People do not need your permission to sell their things. That is not a public decision subject to majority vote. The whole point of freedom as an individual right, rather than an arbitrary privilege which can be conferred and rescinded by public whim at any time, is that none of us get a say on how others choose to live their lives. This means that if two (or more!) gay (or not gay!) people want to live together, adopt children, have someone pronounce them a wedded couple in a formal ceremony and contractually merge their estates, people who disagree don’t get to stop them. And it also means that if someone wants to bake cakes for profit, while retaining the right to decline any customer they please for any reason, they can – which should make social justice advocates very happy!

And of course, adherents to this view are almost always hypocritical. Should gay bakers be forced to bake cakes which read “God Hates Fags” for the Westboro Baptist Church if they want to stay in business? If not, you should probably stop supporting anti-discrimination laws with the argument that businesses must accept all comers indiscriminately, regardless of their ideological disagreements with what their labor is being used to support.


That being said, the right is wrong that this is a matter of religious freedom, at least insofar as they distinguish between that and general freedom of conscience. Conscientious objections arising from religious affiliation should not be given any privileged protection which conscientious objections arising from non-religious reasons are not. The RFRA does that, and as such I wonder whether the law may actually be an unconstitutional infringement of the separation between church and state. Penn Jillette and Judge Napolitano, two libertarians I respect, were critical of the law for that reason.


Ultimately, I’m not sure if I would have voted for the law or not, because it replaces one wrong with another. But I would vote for a law that made private discrimination legal, and overturned the portions of the 1964 CRA which outlawed it. That does not make me a bigot, for the same reasons Bernstein points out in the context of race:
The progressive libel of libertarians as racial troglodytes for their consistent defense of private-sector autonomy is ironic, given that similar illogic has so frequently been used against modern liberals.  When liberals defended Communists’ free speech and employment rights in the 1950s, their critics accused them of being Communist sympathizers, if not outright Communists.  More recently, progressives have been accused of being American-hating jihadist sympathizers when they stood up for the rights of terrorism suspects.
Progressives of all people should to acknowledge the moral complexity in that distinction.

2. The public debate was beside the point anyway, because the RFRA has little to do with discrimination in practice.


The social media backlash was characterized by a complete ignorance of, and indifference to, what the law actually said. The left pitted this as a fight against discrimination, but even the Washington Post
 acknowledged that the new law will likely have little to no effect on discrimination in Indiana,” because “LGBT discrimination in Indiana is already legal. You don’t need a religious exemption to something you can already do.”



That’s right: it was already legal for businesses to discriminate against gay people in Indiana before this law was passed, and it would still be legal for them to do so if this law is repealed. This is true in many other states as well: sexuality is not a protected class. Whether it should be made a protected class or not, this law has nothing to do with it.

Also, even if sexuality were made a protected class in Indiana at some point in the future, the RFRA still wouldn’t interfere with it or permit discrimination for religious reasons. The Washington Post continued:


[E]ven when discrimination laws hamper religious practice, there is not a less burdensome alternative. RFRA raises the bar on laws that burden religion but it does not give religion the power to veto laws.

RFRA doesn’t stop government from limiting religious freedom. It simply states that government can’t do it if there is a less restrictive way to accomplish the same goal. The government must collect taxes and protect against discrimination even if it hampers religious beliefs or practices.

In the 20 years since RFRA became federal law, there has not been a single case in which a person successfully used RFRA to get around civil rights laws. There have been some attempts, but they have all failed.
Supreme Court Justice Samuel Alito talked about the limits of RFRA during last year’s Hobby Lobby decision. Writing for the majority, Alito wrote that RFRA cannot “provide a shield for employers who might cloak illegal discrimination as a religious practice.”

Perhaps “regulations on education of Amish children, prohibitions against head coverings at work, and other laws can be challenged if there is another way for the state to accomplish the same purpose,” but since ensuring equal access to certain products is the purpose of laws prohibiting discrimination on the grounds of sexuality (as opposed to the means to some other end) it wouldn’t apply here. Even if Indiana did have such laws in the first place.

So as Scott Shackford noted, the actual wording of Indiana's RFRA was completely irrelevant to the public blowback against it. A bunch of  people logged onto their social media accounts and heard faint rumor of some vaguely anti-gay law passed in Indiana, which they didn’t understand or bother to try understanding, and yet became so incensed that there still exist people who disagree with them on this that they tried to boycott an entire state. Such a response can only be understood as signaling on the issue of gay rights more broadly, not some well-reasoned objection to the law itself.

3. Gay couples should not want people serving them against their will, for their own sake.

How inspired will wedding photographers be to provide high quality photos, for example, when they feel morally uncomfortable being there in the first place? To get the lighting just right, and make sure everyone’s smiling, and position people so it looks nice, etc.? What ingredients is that cake going to be made of when it’s baked with coerced labor? There are already horror stories of waiters spitting in food (or worse…Tyler Durden’s soup comes to mind) for reasons far more petty than a perceived threat to their religion. I hope that wouldn’t happen, but I wouldn’t put it past some people. And even if there are no deliberate attempts to sabotage the proceedings, it’s fair to presume the labors of people unwilling to be there will be unenthused and halfhearted.

It is in the interests of all parties involved – the couple, the homophobic business, and their gay-friendly competitors – for gay couples getting married to have their marriage staffed, hosted and photographed by people who support the proceedings. This is particularly true in a world when the vast majority of wedding-related businesses are more than happy to serve gay wedding ceremonies, such that there’s no shortage of options to choose from. Many gay couples would likely need to go out of their way to find anyone who’d rather not take part in their party. The only possible motivation I can see for doing that is the immature catharsis of rubbing their nose in it – or, more cynically, the potential to profit from a legal settlement – neither of which I can support as a basis for coercion.

4. Even if you disagree with the points above, the movement to “boycott” Indiana was preposterous.

In the midst of the hubbub, the Mayor of San Francisco banned taxpayer-funded city worker travel to Indiana. The CEO of some company called Salesforce, Marc Benioff, also announced a boycott, as did the CEO of Yelp Jeremy Stoppelman. Some gaming convention threatened to do the same. And here's a guy from Daily Kos advocating a full travel boycott and online shopping moratorium for anything with an Indiana address. Whether a cause or effect of these decisions I’m not sure, but #BoycottIndiana was trending on Twitter for a very long time.

All of this was very poorly thought out. First, very many states have less gay friendly laws on the aggregate than Indiana does, and nobody was calling to boycott them. Gay marriage is legal in Indiana; it’s not in 13 other states. Sexuality is only a protected class in employment non-discrimination statutes in 22 states, so Indiana is actually in the majority in that regard. And 20 other states have also passed very similar versions of the RFRA to the one in Indiana. This only further demonstrates how the selective outrage at Indiana could only be driven by signaling and timing and momentum from recent gay marriage victories, not any principled distinction that made Indiana somehow worse. One wonders how many of those calling for a boycott of Indiana lived in a state that persecutes gays even more!

Gay marriage supporter Connor Friedersdorf put it this way:

“When 13 states prohibit gay-marriage outright, what sense does it make for gay-rights supporters to boycott a different state where gay marriage is legal? Being barred from marriage puts a significant burden on gay couples—a burden many orders of magnitude greater than the relatively small possibility of being refused by an atypically religious photographer or baker in the course of planning a same-sex wedding (the outcome the law’s opponents assert to be its true purpose). And there is no reason to think this law would allow a hotel or a restaurant to exclude gay customers, or that any hotels or restaurants are interested in doing so.”

Second, as a purely practical matter, how exactly does one boycott an entire state? My friend Connor Battilana asked me this on Facebook during the peak of the outrage. “Depends how committed you are to the cause, Connor,” I responded. “Some people merely cease to travel there, but I say that's the easy way out. True allies won't even buy anything made in Indiana, or anything manufactured using some component which was made in Indiana, or which passed through Indiana while it was being shipped, as this could expose truck drivers to discrimination. To be safe, I wouldn't even fly over Indiana's airspace in case a gay pilot needs to make a crash landing. Bottom line is, if you own any product that even rhymes with Indiana, I'd throw it away right now.”

Obviously, my tongue was lodged firmly in cheek. Boycotting a state in which the majority of people have problem with gays or gay marriage is a pernicious sort of grandstanding, that creates all sorts of blameless victims for no discernible benefit. 

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