Free to discriminate, part 1

This is a two-part blog about the legal right to the free exercise of religion and discrimination, in that order. Prompted by the current fuss over Indiana’s Religious Freedom Restoration Act, part one will look at the situation in Indiana that sparked the current discussion, and part two will step back from the headlines and address the more principled philosophical question about liberty and the right to discriminate.

Lately social media has been abuzz over a law change in the American state of Indiana, the Religious Freedom Restoration Act (RFRA), which, some commentators are saying, is a licence for businesses to discriminate against gay people. Even former Secretary of State Hillary Clinton weighed in, tweeting: “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love. #LGBT” Ever the bastion of anti-conservative (would be) exposé, the Huffington Post ran the headline “Indiana Governor Signs Anti-Gay ‘Religious Freedom’ Bill At Private Ceremony.” See the quotation marks? This is not really about religious freedom, somebody thinks. It is about being anti-gay.

Anti-Gay? Discriminating against people because of who they love? Who would write a piece of legislation targeting gay individuals for discrimination? As it turns out, nobody – as you’ll see when you do the unthinkable and actually read the law that everyone is talking about (I know, what a radical thing to do). Unfortunately, the passing of this law is a missed opportunity for many to look seriously at the issue of liberty’s implications and whether or not they count against the propriety of protecting liberty in the first place, and instead an opportunity for almost competitive dishonesty.

Before going further, though, I do want to voice my own disappointment at the way some American conservative Christians have commented on this. I became aware of the story firstly because somebody shared a story about it on social media – a story that portrayed the law as primarily being about refusing service to people because they are gay, and the person who shared it declared that this was a good thing and that all states should follow suit. I am a Christian, and I take seriously the biblical teaching on marriage. Marriage is the union of a man and a woman, meant to be for life. The Bible does not say much about same-sex sexual relationships because the clear presupposition is that this is not what normal, appropriate sexual relationships look like, but every time the biblical writers even mention such behaviour it is to declare it inappropriate. Revisionist attempts to say otherwise are indefensible.

Can you hear a “but” coming? A hallmark of the Christian life is love. If you won’t associate with someone, or won’t serve someone, or won’t love someone because of their sexual orientation, there is something wrong with you and you need to work at being more Christlike. Now isn’t the place to go into all the reasons for saying this, but it’s true and I want to make it crystal clear that this is where I stand. I’m not sure what bothers me more: The liberals who condemn this law, alleging that it’s wrong because of discrimination against gays, or Christians who praise this law, alleging that it’s right because of discrimination against gays. You’re both wrong but in different ways.

OK, so, to the law. First let’s get the facts of the matter out of the way, because although they matter, the principle at stake is more important. Critics of this law, or at least the ones I have seen (which is only a few, but some of them are high-profile, see the Huffington post and Hillary Clinton) have made the issue of discriminating against gay, lesbian, bisexual or transgender people central, as though that is what this law is about. This is false. Here is the relevant text of the Indiana RFRA:

A governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.

A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest;
and
(2) is the least restrictive means of furthering that compelling governmental interest.

In short, it is a law about the extent to which the government may coerce people to act against their religious beliefs. As a rule (and as we would hope), the government can do no such thing. The exception made by this law is in cases where there is an overriding governmental interest at stake.

As John McCormack at the Weekly Standard pointed out, Indiana is hardly unique in legislating for this presumption of liberty. In fact, there is already federal law like this, signed by Bill Clinton in 1993 (has Hillary forgotten?). it passed unanimously in the house of representatives and easily won the approval of the Senate, with a vote of 97-3. The law effectively establishes that a person by default has the right to freely exercise their religious beliefs – as guaranteed by the US Constitution – and that the only time when the government may cause that person’s free exercise to be “substantially burdened” by law is when doing so furthers a “compelling governmental interest” and that law is the “least restrictive means of furthering that compelling governmental interest.”

On reflection this seems to be a requirement for any properly free society. Imagine for a moment the dark, dystopian scenario we would have if things were reversed: By default you are prohibited from exercising your religious beliefs and the burden is on you, should you wish to exercise your religious faith in good conscience, to justify doing so to the government’s satisfaction. Once people realise what an RFRA actually is, it’s hard to see how any decent person’s first response could be to condemn it.

The Federal RFRA is the same piece of legislation that prevents the government from forcing a business to pay for contraception if it would violate the religious convictions of the parties involved.

Not only is there already federal law protecting free religious exercise from government interference, but similar law also exists in a number of other states. Eighteen other states have laws like this based on the 1993 federal law, and thirteen other states have protections like the RFRA created via court decisions. Indiana has not done anything unique. While liberal activists were freaking out over Indiana, Arkansas went under the radar and passed its own religious liberty law. RFRA legislation applies to individual persons and to corporations. We know this because RFRA defences have been allowed in court decisions like Equal Employment Opportunity Commission v. The Catholic University of America (1996), Young v. Crystal Evangelical Free Church (1998) and Hankins v. Lyght (2006). In all of these cases, the appeal to free exercise on the grounds of RFRA legislation as successful. In Worldwide Church of God v. Philadelphia Church of God Inc (2000) an RFRA defence was allowed, but it failed because no substantial burden was demonstrated. So in fact RFRA protections do apply to legal entities more widely and not just individual persons. (Hat tip to Josh Blackman at the National Review for pointing this out). True, Churches are different from most corporations (although many of them are in fact corporations) because most corporations are for profit. But in principle, it is difficult to see why free exercise ought to be restricted to your actions when you are not in business, but these constitutional rights should evaporate once you and a couple of friends set up a business. Presumably you are not expected to lose freedom of speech when you become an entrepreneur, so why free exercise of religion?

It is worthy of note that the somewhat over-the-top condemnation of this law in Indiana takes the form of assertions about future possibilities: What people are saying might happen because of this law, a dark, scary picture of mass discrimination against… well, just gay people, apparently. What critics are not able to say, it seems, is that this sort of mass discrimination actually occurred when the same type of law was passed in multiple other states or enshrined in federal legislation. Why not? If laws like this are dangerous and promote inappropriate discrimination, why doesn’t someone simply document it? After all, there are numerous cases of such legislation to pick from. Where are some recent examples this discrimination that you’re telling us will happen? Why doesn’t Mrs Clinton, instead of just saying that businesses in Indiana are about to start discriminating against customers because of their sexual orientation, back up such alarming statements by showing that this is what happened when other states passed this sort of legislation? The answer is relatively simple: Because businesses in those other states have not stopped doing business with people for that sort of reason at all. Not only is the law not about sexual orientation in the first place, but there’s no evidence being used to back up the claim that the law would even affect people because of their sexual orientation – or at least no evidence that the critics seem to think is important enough to cite.

Important to note is the fact that, according to the RFRA , the government can, in principle, burden somebody’s free exercise of religion via law. It is not a blank check to do anything, let alone discriminate (indeed, the legislation does not single out discrimination as a special act of free exercise). Where there is a compelling government interest that, were it to be pursued, would burden a person’s free exercise of religion, they may so burden it, provided they do so in the least restrictive manner. Rather than beating up a dust storm about a perceived (but not real) threat of discriminating against gay people, this should be the focus of concern – or at least of careful watchfulness. Just what counts as a “compelling governmental interest” had better be kept a very, very rare thing if it is going to be treated as something that can trump first generation human rights.

Indiana Governor Mike Pence who signed this legislation offers some comments to those who have been troubled by outraged critics. It bears reading:

I want to make clear to Hoosiers and every American that despite what critics and many in the national media have asserted, the law is not a “license to discriminate,” either in Indiana or elsewhere. In fact, the Religious Freedom Restoration Act reflects federal law, as well as law in 30 states nationwide. Indiana’s legislation is about affording citizens full protection under Indiana law.

I abhor discrimination. I believe in the Golden Rule that you should “do unto others as you would have them do unto you.” If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore. As governor of Indiana, if I were presented a bill that legalized discrimination against any person or group, I would veto it. Indiana’s new law contains no reference to sexual orientation. It simply mirrors federal law that President Bill Clinton signed in 1993.

As Prof. Daniel O. Conkle of Indiana University’s Maurer School of Law, a supporter of gay rights, including same-sex marriage, wrote last week in the Indianapolis Star: “The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a ‘license to discriminate,’ and it should not be mischaracterized or dismissed on that basis.”

If you have any interest in the furore about Indiana, read Mr Pence’s article. I think he is wrong in at least one way. He doesn’t really abhor discrimination. He said so himself. If a restaurant did something he didn’t like, he would discriminate against that restaurant and eat elsewhere. But apart from that, what he says is worth a read.

Lastly on the facts concerning the law change in Indiana, nothing about this law change means that if a person discriminated against a person and used their religious convictions as a justification, they would win in any legal action. This is the way the law change is being portrayed – as a free pass to discriminate against a gay customer. But in addition to the law not being used that way when applied in other jurisdictions, the law does not offer any such guarantee. As noted earlier, the RFRA does not say that a person’s free exercise of religion may never be burdened. Instead, it may only be burdened where there is a compelling governmental interest. RFRA legislation does not mean that anyone who appeals to their religious convictions and free exercise will always win. Sometimes the court rules in favour of those claiming free exercise, But appeals to free exercise of religion sometimes fail, showing that RFRA legislation is not a free pass (see here or here, and hat tip to John McCormack’s article for those links).

So much for the facts of the matter, which are beyond dispute. On their own, the facts tell us that the outrage against Indiana is unreasonable. This is a piece of law that expresses a basic feature of any adequately free society, a law that is already federal law and state law in many places, a law that does not allow for – and has not lead to – carte blanche discrimination. As for the type of case that everybody seems to be talking about, namely the refusal of service to somebody because he is gay (based, presumably, on a contorted misunderstanding of the refusal to provide services for a same-sex wedding), there is nothing about this legislation that obviously permits this. Suppose a gay man wants to buy a newspaper from me. It is difficult to see how there is any burden at all to my free religious exercise in my selling him a newspaper (if I am in the business of selling newspapers), and hence no way to invoke protection from being burdened by the state if it forbids such discrimination.

What interests me more than the facts on the ground in Indiana (after all, I am not even American) is the question of principle here. Should we have an unqualified legal right to choose who we do business with, even if that means we will discriminate? Actually the question contains a redundancy. To choose is to discriminate. The question, really, is just this: Should we have an unqualified legal right to choose who we do business with? I’ll look at this in a new blog post soon.

Glenn Peoples