The Indiana Religious Freedom Restoration Act has certainly ruffled a few feathers. Ashton Kutcher doesn’t think much of it. Hillary Clinton is firmly against it, possibly in an attempt to draw attention away from her e-mail scandal. Charles Barkley wants the NBA to keep all championship games out of Indiana unless the law is repealed. And George Takei is keeping things simple, calling for an across the board ban of all things Hoosier.
What is the one thing that most of those who oppose the RFRA have in common? A fundamental misunderstanding of what it does. So what does the law do then? It does not give businesses the legal right to refuse service to someone based on sexual orientation, although strictly Constitutionally, it probably should. (We can come back to that in a minute.) What it does do is reaffirm a business owner’s right to abstain from participation in a business transaction that is at odds with his religious convictions.
Most of the cases that have made the news have not involved business owners who refused to do business with homosexuals. Rather, they have involved business owners who believed that their faith would not allow participation in a same sex wedding or having their business name associated with a gay pride event. Many of those same businesses had regular customers and friends whom they knew were same sex oriented. This is not a case of, “Oh, you’re gay? Then put down that cupcake and get the hell out!” No, it’s a case of, “we will happily make your birthday cake, but please don’t force us to participate in a wedding that violates our religious beliefs.”
The sad fact is that this law should not even be necessary. Activist judges who have made a habit of legislating from the bench in the absence of the social “progress” they deem necessary have consistently valued political correctness and catering to the protected class du jour over a strict application of our Constitutional liberties, making it necessary for laws like the RFRA to be passed in an attempt to get some small measure of those liberties back.
So, back to the part about discrimination based on sexual orientation: business owners should have the right to refuse service to anyone, and for any reason.
It all comes down to two things: property rights, and free association. A business owner, it is assumed, has sole ownership of his goods or services prior to the initiation of any business transaction. If we allow the government to dictate with whom one can and must do business, then we have essentially ceded partial control of every business owner’s property to the government and made the government a third party to every business transaction from here on out.
But here's the kicker: removing a business owner's right to discriminate also removes the right to free association, but not just for the business owner. Imagine you are a photographer, but not the owner of the photography business. If the business owner is legally compelled to take a contract for a same sex marriage and your boss assigns you the job, what are your options? If you leave that job and open your own studio, the government can then compel you to take that job or a similar one. If you attempt to get hired by another studio, what's to stop that business owner (who is also compelled by government mandate to serve everyone) from giving you a similar assignment? If you leave the photography business altogether and become a caterer? A baker? A t-shirt printer? No occupation is exempt from the compulsion to act, regardless of your position as employer or employee.
For that reason, the state should not compel businesses to be “non-discriminatory” in the first place. While I dislike making the comparison because the two issues are so very different, many have compared the gay rights agenda to the Civil Rights movement – and some say that laws like the RFRA should be deemed unconstitutional based on the Civil Rights Act of 1965. The problem is that what they want is a society that has progressed beyond bigotry, and a law will never achieve that.
As the great philosopher Plato once said, “Knowledge acquired under compulsion obtains no hold on the mind.” In other words, legislating the end of bigotry does not put an end to bigotry in the hearts of the people; instead, it sends bigotry into hiding to fester and grow unchecked. The Civil Rights Act of 1965, for example, did not mark the end of racism; rather, it marked the day that America accepted governmental interference and called it societal progress.
So is it possible to believe that discrimination should be legal and also believe that it is wrong? YES. Because in each case, a different party is responsible for carrying out the action. The legality or constitutionality of discrimination is a question that must be addressed by the state, and a strict reading suggests that the property rights of an individual supersede the rights of another to wield the power of government against him and demand to be served. The morally acceptable thing to do is to not discriminate, however, but to choose the moral action is solely the responsibility of the business owner.
In a nutshell, the liberty to discriminate against anyone for any reason is Constitutional, but for an individual to discriminate is morally wrong. The RFRA restores some of the liberties addressed by the former, but does not condone the moral repugnance of the latter. Most of those who stand opposed to the law fail to recognize that important distinction.
