There are few public policy disagreements that show the poor level of intellectual discourse in America as well as the recent uproar over Indiana’s Religious Freedom Restoration Act (RFRA) has demonstrated.
In the past week, innumerable disingenuous, dishonest arguments about the intent, character, and goals of RFRAs has come from all sides, largely amounting to no real advancement of the debate. We have, however, successfully called each other bigots, Nazis, Brownshirts, and other names, all the while not truly discussing what is a real, and rather fascinating, debate about how a free society deals with disparate belief systems in the public sphere.
I am no legal expert, so I will leave the intricacies of the various state and Federal statutes to those that are much more knowledgeable. I think we have seen some excellent articles from Josh Blackmon (who has several great posts, including those notably on his blog and in the National Review), Eugene Volokh, Jonathan Adler, Gabriel Malor, and many, many others. I will happily defer to them on the myriad of legal issues involved with these cases.
However, where the debate has failed miserably is in the philosophical discussion of what human interaction means in America, and what is required of us in a free, equitable society.
What is missing from this debate is understanding that free association in a free society not only allows for equal access to all, but allow for individuals to opt out of participation when they so choose. And opting out of public issues, when you are an individual, is wholly within the sphere of freedom in a diverse society.
I think the major confusion comes from whether you think a person is acting in the ‘public’ arena or not when they interact in some form of commerce. When we get down to the complaints from social conservatives on religious freedom, versus complaints from progressives on complaints about discrimination, this is where the conflict arises.
First, let me say that a ‘public’ entity should be open to all. Some libertarians disagree with this, but I believe this is where the line should be drawn. Absolutist libertarians believe all free association should be voluntary. I sympathize with that belief philosophically, but in all practical terms such a system could not exist in America as it exists today.
A ‘public’ entity is one that has entered into a virtual social contract with the community to provide goods and services to everyone in that community. One does not get a permit to open a restaurant in any city in America to only serve people they deem fit based on arbitrary criteria. The same goes for gas stations, grocery stores, pharmacies, etc. On the other hand, if an entity wishes to be private, that is their choice too; but then they will be treated as such, with the more limited government interventions that go along with that type of business.
The question then becomes, what is ‘public’? Clearly, any business that accepts ‘walk-in’ customers, in my humble opinion, should be considered, as my list above shows. Additionally, any service deemed ‘emergent’ must be included: that includes medical care facilities, car repair shops, ambulance service, etc. I find very few people willing to allow restaurants to pick and choose which customers it is willing to serve based on race, culture, creed, or sexual orientation. And nobody wants to restrict access to services in case of any type of emergency.
If we establish that truly open public entities do have to meet a much higher burden, then what controversy is left?
The more troublesome question for many may be, what is deemed ‘private’? Here in lies the battlefront of the culture wars. If you are an independent professional, such as a photographer…should you be forced to travel to, participate in, and perform duties at a gay wedding? Or for any wedding, for that matter? Or any religious ceremony?
How about a web designer? Should a Jewish web designer be obligated to do websites for antisemitic groups? Or, even, right-wing extremist Christian or Muslim groups? Under the construct logically built by many progressives, that is precisely the standard they would apply.
There are going to be gray areas in any legal construct, and this one is certainly no exception. What do we do about a bakery, who has a public store, but also does private catering? I think the question answers itself: the bakery as a public entity cannot discriminate on these issues; but the catering business, which is not public and is an ‘At Will’ commercial entity, should be able to.
To presume that government retains the power to force an individual into such a scenario is very troublesome. We can come up with all sorts of absurd scenarios: an African-American singer at a KKK rally; a gay designed at a party held by Westboro church; a Muslim waiter at a pig roast.
Of course, those are uses of absurdity to prove the point. We in our society try to allow as much personal choice as possible, whenever possible. But what if that choice appears discriminatory to one of the participants? Is that personally legally bound to serve the other, because of their hurt feelings, or general belief that they are being hurt based on the choice of that other person?
The other question we must all face is, how much burden to we place on each party? My driving intent is to place as little burden on each party as possible in order to allow them to follow their own personal choices. A gas station that limits access to certain individuals could potentially place an enormous burden on a gay couple running out of fuel. On the other hand, if a wedding photographer refuses to perform at a wedding…is the burden to find another photographer so great as to require government force to impose that will on that individual? That does not seem reasonable; and when such a case arose last year, more than 80% of Americans (with supermajorities of both Republicans and Democrats) believed that was a step too far.
Let me make two points, both more political than philosophical. I think conservatives need to come to terms with the fact that homosexuals do have a lot of right to complain about how they have been treated. Additionally, many conservatives never came to their aid, when their rights were clearly being diminished. The fact that they have trouble trusting conservatives in general is not unreasonable. Conservatives must make an attempt to bridge this distrust.
However, the progressives that have led this fight have been quite illogical in their response. These same people who do not like arbitrary refusal of service based on moral beliefs are the same people who applaud when a musician refuses to allow Republicans fair use of their music during campaigns. Every four years, we hear about how Republicans struggle to find music they can use, because…the music industry is discriminating against conservatives.
The day progressives demands musicians should require all politicians be allowed to use their music as is deemed reasonable under the law…I will believe they really believe what they are saying. I am anxiously waiting for the moment Miley Cyrus’s music is used by a pro-life, social conservative Republican..and she demands that her work product not be used because of her moral stands. The schadenfraude would be tremendous. Of course, considering the quality of her music, I likely will be waiting a long time for such an occurrence.
Like any personal freedom in a public society, the discussion of the protections of religious freedoms when it involves free association of individuals and interaction of citizens with the public is a difficult on, especially upon first glance. But if we are willing to contemplate the practical realities involved, and try to defer to individual choice as much as possible, solutions do start to emerge. The greatest failure of our political process today is its failure to bring about such sensible discourse; the debate over Indiana’s RFRA is just the latest, but not the last, of these types of ludicrous discussions.