Government, properly understood, is an agent of force. It can cause people to not do things they would otherwise do, and can compel them to do things they otherwise would not do. It does this in small ways and big ways, in nudges and at the end of a gun. At its best, as limited government conservatives and libertarians alike understand, government causes and compels only in those arenas it must, invading the scope of human life as little as possible. At its worst, government becomes, in Saint Augustine’s phrase, a system of “great robberies” where plunder is divided by the law agreed on, and people are subdued by force in accordance to the whims of the powerful elite.
So what are we to make of the divisions that emerged in the course of Arizona’s consideration of its version of a Religious Freedom Restoration Act, and the responses it inspired? I think it comes down to a matter of priorities, and to the broad-based willingness to let personal inclinations about what society ought to look like overwhelm a reasonable understanding of the ramifications of giving government the power to shape that society.
Let’s get a few things straight. Jim Crow for gays was not prevented by Jan Brewer’s veto of their religious liberty bill last night. Indeed, most Arizona businesses – like most businesses across the country – are free under the law to discriminate according to sexual orientation or anything of the kind. The bipartisan group of law professors who helped draft legislation like this in other states – many of whom support gay marriage themselves – were the ignored parties in all the coverage of this story, as amateur legal minds screamed of legalizing all sorts of terrible things which are in reality already legal. Ilya Shapiro, one of Cato’s brightest thinkers, went even further in undermining the case against this law:
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.
One last word regarding the language of opponents of this law, who have been so quick to run to straw man arguments of bigotry and hate: most religions are inherently discriminatory. They discriminate between what is a sin and what is not, between who goes to heaven and who goes to hell, and they guide believers to never participate in furthering a sinful act. It is rather laughable to see the unchurched roll out the line of attack that defense of religious liberty – of preventing government from compelling the religious to participate in something they view as sinful – places proponents on the “wrong side of history.” How droll. If you believe that our reality began with “let there be light!” and will end with “behold, I make all things new”, being on the wrong side of human history is a given.
Believers will always be strangers in a strange land – the question is how much freedom they will have to follow that belief in that land as they become all the more out of sync with the times, and how much we will deploy government to compel them to violate that belief. And that’s one more reason why the culture wars are just getting started.