Private Discrimination Is As American As Apple Pie

SB 1062 does nothing more than align state law with the federal Religious Freedom Restoration Act (which passed the House unanimously, the Senate 97-3, and was signed by President Clinton in 1993). That is, no government action can “substantially burden” religious exercise unless the government uses “the least restrictive means” to further a “compelling interest.” This doesn’t mean that people can “do whatever they want” – laws against murder would still trump religious human sacrifice – but it would prevent the government from forcing people to violate their religion if that can at all be avoided. Moreover, there’s no mention of sexual orientation (or any other class or category). The prototypical scenario that SB 1062 is meant to prevent is the case of the New Mexico wedding photographer who was fined for declining to work a same-sex commitment ceremony. This photographer doesn’t refuse to provide services to gay clients, but felt that she couldn’t participate in the celebration of a gay wedding. There’s also the Oregon bakery that closed rather than having to provide wedding cakes for same-sex ceremonies. Why should these people be forced to engage in activity that violates their religious beliefs? For that matter, gay photographers and bakers shouldn’t be forced to work religious celebrations, Jews shouldn’t be forced to work Nazi rallies, and environmentalists shouldn’t be forced to work job fairs in logging communities.

Some context is necessary here. In the wake of the curtailing of the Religious Freedom Restoration Act, states have pursued a host of mini-RFRAs which include protections for religious liberty. Attorneys and law professors who support gay marriage, such as Doug Laycock, have worked alongside attorneys from national faith groups to create legal language designed to follow the national RFRA’s model. This movement has recently fallen prey to the problems of any movement led by lawyers: it has seen a host of things that are benign in a legal context being misconstrued – or purposely lied about – to foment rage against things which are already legal, and ought to be in a society which values religious liberty. Kansas became the most recent example for pushback over the language proposed by these legal experts, though freelance efforts in other states have been even less successful (South Dakota didn’t even get out of committee).

The majority of the language in these bills, such as that related to maximum extent, is a cut and paste from the federal RFRA (of course, it’s a real question whether Chuck Schumer’s bill could pass today).  These lawyers have attempted to ensure that those with sincerely held religious beliefs retain their ability to live and work in the public square without being compelled by the force of government – likely due to the ruling of a court – to do something which runs against their beliefs. Kevin Williamson notes the danger of this judicial fiat: “If anything, it is much more likely in 2014 that a business exhibiting authentic malice toward homosexuals would be crushed under the socio-economic realities of the current climate. That is a good thing for two reasons: One is that genuine hostility toward gay Americans is today a distinctly minority inclination but one that still should be challenged. The second is that it is a far healthier thing for that challenge to take place on the battleground of civil society rather than in the courts and legislatures.” But then again: “We are a Puritanical nation, which doesn’t mean we hate sex (the Puritans loved sex). It means that we are profoundly anti-Catholic and prone to stamping out dissenters. We used to use social consensus and economic pressure where we didn’t use convictions to accomplish this. Now we use the Supreme Court.”

The reality is that discrimination on the basis of sex in public accommodation and in numerous other ways is for the most part totally legal at the state level. Yes, this crazy Jim Crow reality that has been fearmongered to death is already the law in most states. Most people think it’s illegal, but it isn’t – last night I heard a sports radio host describing America as a place where “no one has any right to deny anyone any service any time for any reason”, which is pretty much the opposite of freedom of association. But while it is legal, it rarely comes up – because it is so infrequently an issue! It turns out most Southern Baptists are perfectly happy to take gay couples’ money and bake them a cake. The pursuit of a positive Yelp review can be a powerful motivator.

But – and here’s the real focal point of this issue – they should be free to choose not to. And those who favor human liberty should be in favor of defending this status quo. Elizabeth Scalia writes: “I feel like I’m watching my gay friends get mauled and then watching my Catholic friends get mauled, both by people who have lost the ability to do anything but feel and seethe.” Elevating emotion (even understandable emotion) over reason is precisely what statists do and have done for centuries, and something libertarians (and too few conservatives) rightfully decry. The end point of overreaching government is a reality where believers are forced to bake a cake to celebrate an act they view as sinful, but under no circumstances can they serve unlimited brunch.

If you believe markets work, if you believe people work, then you should have faith that legitimate bigotry will be punished by the marketplace. So Hobby Lobby and Chick Fil A and all the cakemakers who only make heteronormative cake will see their business drop because they were anti-women or anti-gay or what have you. Giving the government the power to punish them – which really amounts to giving elite trial lawyers that power – is madness if you believe in people and markets. Decisions made by free people within markets will sort themselves out better than giving courts and government and bureaucrats the power to do the sorting. No one will shop at the Nazi store without being judged for shopping at the Nazi store, so we don’t need government to ban the Nazi store.

Go here to read the rest.  The Civil Rights Acts that banned discrimination on the basis of race by private vendors were unusual legislative acts based on an unusual situation:  state governments that mandated such discrimination by private businesses.  It took government action to break down such government mandated discrimination.  Absent such government mandated discrimination, I think most Americans, if they truly ponder it, would be all in favor of businesses discriminating in some cases.  For example, I assume few people are against restaurants discriminating against nudists by mandating clothes.   I imagine few Americans would feel comfortable telling a black owned barbecue restaurant that they must cater a Klan rally.  A Jewish run deli really should not be required to provide take out for the group calling for divesture from Israel.  I am not going to represent the owner of an abortion clinic under any circumstances.  In theory Americans might be against private discrimination in commerce, but when it comes down to actual cases, I suspect that almost all Americans are not non-discrimination absolutists.   When businesses discriminate they of course run the risk of losing customers, but freedom of the consumer goes along with freedom for the vendor.

Of course lawsuits against people who refuse to bake cakes for, or take photos at, gay weddings have nothing to do with discrimination,  there are endless other vendors to provide such services, and everything to do with compelling people to act as if gay marriage is perfectly normal and just.  That is why people who thought conceding gay marriage would end this argument were deluding themselves.  This is all about causing people who believe that pretending homosexual conduct is moral is completely wrong to shut up, and as long as there are those of us who have the temerity to speak out, the gay activists will continue their efforts to have the state shut us up.  The love that once dared not speak its name is now the love telling all opponents that they dare not speak at all.  In a free society this is intolerable and caters to an ever-growing totalitarian mindset on the left in this country where opponents are not fellow Americans to be reasoned with, but foes to be vanquished and humiliated by being forced to act against their consciences, and bankrupted through litigation if they refuse to meekly accept their assigned role in a leftist morality fable.