It was about ten months ago that the Religious Freedom Restoration Act (RFRA) fiasco in Indiana had a few of my friends calling me to inquire how I live in a state of intolerance – Indiana. In fact, one of them even suggested that it was time I move! Ironically, that friend lives in California which passed Proposition 8, which was later overturned by the Supreme Court. Any attempt on my part to let my friends know that the good people of Indiana were just as tolerant or otherwise as folks in other parts of the country/world was often dismissed as a defensive tone of someone who made a choice to work, and live in the area whose zip codes begin with either 46 or 47.
The RFRA issue highlighted the discrepancy between the ‘free exercise clause’ of the First Amendment (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …) and Title II of the Civil Rights Act of 1964 (All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin). While one can get technical and play constitutional lawyer about this tension, and quibble about whose rights are guaranteed by the constitution and the law (the opposition to the RFRA in Indiana was by the LGBT community and sexual orientation is not a protected class under Title II), the substantive central issue here is, ‘Should one be allowed to discriminate because of one’s deeply held religious beliefs?’ And it is worth separating the politics from the policy when thinking about this question.
My reading of the RFRA issue in Indiana was that it was a political tactic by a governor who was trying to shore up his credentials with the Christian Right, a rather important constituency in Republican primaries, by establishing his “ I am not pro-LGBT” credentials. He essentially wanted to make the case that an individual’s religious ‘rights’ must be protected if they were to come into conflict with their professional and social actions which could be (legitimately) seen as discriminatory. It was a way for the governor to announce to all that if one’s sincere Christian beliefs were to come up against society’s not so slow and sure move to legitimize in full measure the rights of the LGBTQ community, then he was for religious beliefs trumping the LGBT community’s civil rights. My sense is that the governor and the LGBT community would frame the issue in ways to tilt the balance of reasonableness towards their desired outcome. The LGBT community may object to the phrase “sincere Christian beliefs” and the governor and his supporters may object to the phrase LGBT “community’s civil rights”. It is worth noting that the political tactic backfired and Governor Pence did not seek the presidential nomination of the Republican Party.
In practical terms, what are we talking about here? The oft quoted example is that if a Christian (or a person of any other religious denomination) florist/baker running a mom and pop family flower shop/bakery sincerely believed based on their religious beliefs that marriage was a sacred institution between a man and a woman, and therefore objected to gay or lesbian couples marrying, and therefore did not want to provide flower arrangements/cakes for a same sex marriage then he or she should be allowed to refuse if asked without having to pay the legal price for being discriminatory. The governor underestimated the power of the opposition and eventually had to walk back what the RFRA legislation was attempting to do.
While I do think the governor of Indiana pushed the legislation for personal political advantages, I also take the position that as long as a reasonable substitute (another florist or baker who can cater the wedding, in the example) for the service that a religious person wanted to withhold for reasons of conscience was available then he or she should be allowed to withhold the service. And he or she must have a clearly stated policy of which groups they will not serve and must apply that standard in a non-discriminatory manner. The business in question cannot apply the religious standard in some cases and not others. I think that peoples’ deeply held religious beliefs (as misplaced and wrong-headed as I or anybody else may think they are) should be respected and that society for the most part should structure its affairs to accommodate these beliefs. I want to reemphasize the qualifications (“as long as a reasonable substitute exists” and “clearly stated policy” and “apply that standard in a non-discriminatory manner”) in my position. I am essentially arguing that if society has to choose between respecting somebody’s deeply held religious belief or making sure that at times people belong to certain categories/groups (in our example, the lesbian or gay couple getting married) can be served by the exact person/organization (the Christian baker who believes …) that they want to be served by, then society must act to respect one’s deeply held religious belief.
To be clear I want to give an example which takes out the Christian and LGBT aspects of the Indiana fiasco so that the principle is clear. So, if my religion proscribes the coloring of one’s hair and I as the owner of a motel do not want to rent out rooms to a couple who have colored their hair, the law should permit me to do so as long as there are other motels nearby which the hair coloring couple can rent from. However if mine is the only motel in town, then I should NOT be allowed to discriminate. And I must have a clearly state policy in my lobby, on my website, and other reasonable places, so that everybody knows whom I will not serve and why. And if I do not apply my standards consistently and in a non-discriminate manner, then I should be charged with some civil offence!
There are a couple of problems with my position above. First, how does one define a reasonable substitute, and how will one know whether a reasonable substitute exists? Without going into the details here, it is worth noting that a judgment of this sort is made regularly when the authorities deal with whether to permit mergers between two firms – the question ‘will it change the competitive environment substantially?’ is essentially asking, “Do reasonable substitutes exist, such that the merged firm will not have a monopolistic/oligopolistic advantage?” And, if the position I suggest is adopted, over time a body of case law will develop, and conventions will be worked out that seem ‘natural’ as to when one can discriminate and when one may not. The other obvious problem with my proposal is that a lemons problem exists where at times (maybe, even often) it is hard to differentiate the true believer from those who falsely claim to believe. As far as possible, society should figure out a mechanism to separate the ‘true’ from the ‘false’ claim, but if a doubt exists, the benefit of the doubt should go to accepting the claim.
The fact that I think the ‘fictional florist or baker or motelier’ should be allowed to withhold his or her services for religious reasons should in no way be interpreted as my thinking that it is a good thing that people withhold services on religious or any other grounds. I share the deep sense of sorrow and disgust that many people have when individuals and businesses in the 21st century act in discriminatory and bigoted ways – at the very least, I think to do so is not decent. And if I know of a business that discriminates on religious, social, cultural, and sexual orientation grounds I will demonstrate my displeasure of their behavior by engaging them to speak about why I think their stance is deeply problematic, or not engaging them (by not patronizing them) if I think there is little that will be achieved by engaging them – I will go to the businesses/organizations where the reasonable substitutes are available. But the fact that I do not like something, or am even deeply troubled by it, is not good enough reason to make it illegal! When an individual’s (and I reluctantly add, institutions’) deeply held conscientious choices are in variance with the way I (or anyone else) would like to see things pan out, individual’s deeply held conscientious choices should win the day.
Please read the related piece titled, “Calling Out (with) Hope – At least become like Calvin …”