Your Feelings are not an Argument: Indiana RFRA Edition

One refrain in the uproar over Indiana’s Religious Freedom Restoration Act is that it’s motivated by anti-gay sentiment, and that this is somehow reason to oppose it. Case in point: Dale Carpenter writing on Volokh Conspiracy.

But what I think the “nothing to see here” defense misses is the cultural, political, legal, and religious context in which these laws are being passed–a context that could easily lead courts to apply the laws in more aggressive ways. The newly energized effort to push mini-RFRAs like Indiana’s is almost entirely a reaction to the gay-rights movement, including but not limited to the increasing acceptance and reality of same-sex marriage. One need only listen to the kinds of examples that RFRA supporters cite as “burdens” on religion to know that RFRAs nowadays are directed at validating and legitimizing antigay discrimination.

Question the first: so what? Isn’t that a great part of what laws do? A certain brand of law reacts to a trend seen as threatening in an attempt to curb its more excessive influences. A lot of people, me included, see the gay rights movement as going too far. Remember, the case that led to Indiana’s legislation was a Christian photographer who didn’t want to film a gay commitment ceremony (ironically, gay marriage was not legal in the state – New Mexico – in which she was sued). The couple in question was not unduly inconvenienced by this refusal – the would-be customer "easily found another photographer for her ceremony—and for less money", and yet it still cost the photographer nearly $7000 in legal fees for a one-day trial (because she had to pay the plaintiff’s fees as well). After a process going to the NM Supreme Court she still doesn’t have what any rational person would regard as a basic right: the right to refuse to perform services that go against one’s personal beliefs. Keep in mind that we’re not talking about an employee of a larger corporation: this was a husband-wife team that owned their own photo boutique. I think it’s really OK to react to a movement that advocates this outcome by trying to legally curb its influence. That’s generally how you react to a social trend that is itself using the law to push its agenda.

Question the second: are hidden bad motives in themselves a good reason to oppose a good law? I won’t completely rule it out, but I think in the vast majority of cases the answer has to be "no." Criminals can be trusted to support limits on police power, for example, but I don’t conclude from that that police power should be unlimited. Likewise, a luddite will pretty much always support any environmental protection legislation, including when it’s beneficial. Hidden evil motives sometimes align with good laws. Granted, (suspected) hidden evil motives are a good reason to give any proposed law a more thorough going over than you ordinarily would. It’s not wrong for an atheist to think twice if, for example, he finds himself standing next to Mike Huckabee at a rally. But second guessing isn’t the same as disqualifying, and guilt by association is still a lazy and ineffective argument. Noticing that people you don’t like support something is good enough to raise your suspicions about a law, but at the end of the day, your opposition still needs to be based on the text of the actual law.

Question the third: how is requiring strict scrutiny for religious defenses in court "validating and legitimizing antigay discrimination?" Because that’s all Indiana’s RFRA does – it requires that courts use the "strict scrutiny" standard when adjuticating claims that someone’s religious exercise has been burdened by the state. In other words, contrary to this silly passage:

State law in Indiana does not prohibit discrimination on the basis of sexual orientation or gender identity. A person can be fired because he’s gay or denied housing because she’s transgender. A hotel can deny a room to a gay couple bearing the sign, “Just Married.” So we hear, in a somewhat underwhelming response to criticism of the new Indiana RFRA law, that LGBT people haven’t lost any legal protection because they never had it. But there are numerous municipalities in Indiana that do prohibit such discrimination in laws that already provide specific religious exemptions.

the RFRA does not allow anyone to flagrantly violate any hypothetical future state anti-discrimination bill across the board. There would have to be some real basis for believing that the person’s sincerely held religious belief came into conflict with it, and religious believers don’t tend to win those cases. In the example of the hotel, it seems really unlikely to me that the hypothetical religious believer would prevail, because running a hotel is not an "exercise" of religion. It might (emphasis intended) allow a religious baker to refuse to supply a gay wedding, but why should that have been illegal in the first place? Weddings are traditionally religious things in a way that running hotels is not, and anyone who is worried that we’re "legitimizing" discrimination against gays by acknowledging that there’s some potential conflict between religious people and gays involving weddings is stacking the deck, legitimizing discrimination against religious people, as it were. These aren’t trivial privilieges we’re talking about, by the way. Free exercise of religion is explicitly protected by the Constitution.

For people who say that commerce can never be religion, I’ll repeat yesterday’s example of the devout muslim photographer who is hired to photograph a free speech rally, unaware that there are going to be reproductions of the Charlie Hebdo comics on display that he’ll have to photograph. I hope everyone would agree with me that if he accepted the contract in good faith only to be confronted with images that he thinks are blasphemous and that it would be a sin for him to photograph, that he actually does have a right to refuse, on the basis of his religion, to do something that he thinks will damage his relationship with God. It doesn’t matter that I personally find his religion silly. The point is just that he sincerely believes that taking pictures of blasphemous depictions of The Prophet makes him complicit in the sin, and the Constitution protects that.

So I think Dale Carpenter and people like him have some more work to do here. Saying "a lot of people who like it hate gays" isn’t enough.

There’s a cringeworthy video in which George Stephanopoulos wants an up-or-down yes-or-no answer from Gov. Pence on whether he supports expanding the state’s discrimination statutes to include gays in the protected classes and Pence won’t give one. I think I would like an up-or-down yes-or-no answer from opponents of this bill whether they really think Elane Photography v. Willock is the right result. Ignore for a moment whether the decision was the correct interpretation of New Mexico’s laws – the question is just whether that’s really what you think the status quo should be? Yes or no – you really, honestly think a religious photographer cannot politely decline, via email, to take paying business from a lesbian couple if she thinks doing so would damage her relationship with God? You really think the damage to Ms. Willock’s feelings is the overriding governmental interest here? And even if you do, can you honestly say, with a straight face, that someone who thinks that Elane Photography should be able to take a pass on that contract for religious reasons is automatically "validating and legitimizing antigay discrimination?" I’m sorry, but it’s too silly. No, there is no actual damage of the kind the government needs to repair if Elane Photography doesn’t want to take picture of Ms. Willock’s commitment ceremony. And yes, there is actual damage to someone’s constitutional rights if the government forces her Elane Photography to do it. Indiana’s RFRA may or may not be the best possible remedy for that situation, but until you’re coming up with one, simply saying "some people don’t like gays" isn’t going to be enough to distract from this real issue.

As with so many other things, I think the problem here is that the burden of proof has somehow been shifted. Somehow, the media and the gay lobby have been able to spin this as an affirmative attempt to deny gay people their rights. Somehow, it’s come to be accepted wisdom that if Indiana wants to pass this bill, it should have simultaneously reassured its gay citizens by including them on the list of protected classes. But that’s just the rub – there is actual evidence that anti-discrimination statutes that protect gays will damage the rights of religious believers. Remember, New Mexico was precisely the case that the gay lobby now says Indiana needs to duplicate: it had an RFRA and it also included gays as a protected class in its Anti-Discrimination Law. The result was that someone’s exercise of religion was burdened by a frivolous lawsuit that was more about political revenge than any serious complaint. Supporters of the RFRA can show real-life cases that it is intended to correct. Can opponents show real-life cases where any RFRA has damaged them? There are 19 state bodies of law and a federal body of law to choose from – if it’s really a burden on their rights, they should be able to find a case that proves that. Are there any cases of discrimination against gays in Indiana currently severe enough to justify adding them to the list of classes protected against discrimination? I am not aware of one, and I feel certain the local press would have reported on one if there were one, especially now. I think there aren’t any. And so I think this is yet another case of burden shifting. And I think that’s why everyone was so quick to reach for a boycott, because actually arguing their case would require facts not in evidence.

So sorry Mr. Carpenter and people like you, but not good enough. I’m no great fan of the RFRA – as I said yesterday, I’m more or less on the fence about it. If I lean a bit in favor, that’s because the case for is making real, evidence-based points while the case against’s first instinct is to reach for bad guilt-by-association arguments.

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