The Water Ordeal Amendment

So, Indiana caved and amended its RFRA. It would have been one thing to have merely amended it to prohibit its use against local anti-discrimination ordinances (which, by the way, was actually done – not that anyone in the media chose to notice). Amending it to specifically list all the classes of people it can’t be used to discriminate against is, as Ben Shapiro rightly points out, worse than having never passed it at all.


Mainly because it now recognizes sexual orientation as a protected class, which the Indiana Legislature had never done before, and had no intention of doing before the uproar over SB 101.

Why is that a bad thing?

Because there is no evidence that sexual orientation needs this kind of protection, but there is plenty of evidence that religious belief does.

In a liberal democracy, government coercion should only be used to achieve a result if a case can be made that it is necessary and likely to be effective. Neither criterion seems to be met for discrimination against gays.

Necessity. As a baseline, everyone has a right of association – which includes the right not to associate with people one doesn’t want to. It’s true that this is not a Constitutional right. The First Amendment recognizes "a right of the people peaceably to assemble", and that this has been interpreted as a right to association, but I’m not aware that it has ever been used as a defense against forced association. The law is pretty solid on the point that if the government wants to require, in places of "public accomodation" (a legal term of art that more or less means "government offices and businesses otherwise open to the general public"), that everyone or noone be served (that is, serve blacks or close your doors, to use the obvious historical example), it can do. Notwithstanding, everyone privately recognizes that some businesses and individuals will prefer, owing to their natures and beliefs, not to serve certain classes of individuals. For example, virtually no one will object if a gay web developer declines a contract from the Westboro Baptist Church to put up a "God Hates Fags" site. Likewise, no one is going to require a devout muslim baker to make a cake with a stencil picture of any of the infamous Charlie Hebdo cartoons. And there’s also the mundane case of someone who walks into your restaurant visibly drunk, throwing up and dirty. We’d all agree the shopkeeper can throw such a person out. So it’s safe to say that no one rational supports an absolute prohibition on disassociation; we can all think of cases where the right should be preserved. The question isn’t so much whether people should be allowed to refuse service for reasons of conscience as when exercising this right crosses the line into social damage, and whether that social damage is great enough to require a legal remedy.

Supporters of bans on discrimination against gays love to draw analogies with blacks in the Jim Crow South, because that’s one case where most people agree that the social damage was great enough to require a legal remedy. But they typically skip over the part about what it was that made the damage so great. To hear the gay lobby tell it, the reason we needed to get the law involved to fight discrimination against blacks was that the very idea of discrimination against someone on the basis of his race is so repugnant that the government was compelled to stamp it out. But actually, the reason we needed anti-discrimination to forbid discrimination against blacks was to break a power monopoly. The Jim Crow system was effective at keeping blacks down because it also came down against whites who refused to toe the line. In many areas, segregation was enforced by law. In others, it was enforced by popular attitude and criminal intimidation to the point where no white shopkeeper who had wanted to serve blacks alongside whites would have been able to do so – certainly not easily.

This forms a critical distinction with the situation with gays. Gays are simply not oppressed in the same way and to the same degree that black people were. It’s true that they will face bullying now and then on account of their sexual orientation, but being refused service or accomodations for it is so vanishingly rare that it statistically never happens. In places where it does happen, it is generally easily avoidable: there will be another hotel or photographer or baker nearby willing to accomodate your stay, or wedding pictures, or wedding cake. Nor is there any demographic evidence that gays are oppressed. At last count, gays have higher incomes, including disposable income, than the general population. They are well represented in prominent and prestigious professions. They own good homes, go to good schools, etc. There are some arguments that they don’t enjoy all the same legal prerogatives as straights in that their marriages aren’t universally recognized and so they’re not always elligible for the same partner benefits, but to the extent that’s true it’s something that can’t be fixed by legally forbidding hotels and bakers from denying service to gays. The fix for that is more direct: either offer marriage licenses to gays or (better) just extend all the property rights that come with marriage to everyone regardless of situation.

The case simply hasn’t been made that there’s anything the government needs to remedy with regard to discrimination against gays. Discrimination against gays is neither widespread nor systemic for the most part – and the one area where it is systemic (marriage laws and customs) can’t be fixed by anti-discrimination statutes anyway.

Effectiveness. It’s pretty clear that discrimination laws are not necessary to guarantee the rights of gay citizens, but could they be effective in doing so? It’s difficult to see how. If a baker really doesn’t want to serve gay weddings, it should be enough for him to explain to his customers that he donates large portions of his income to traditional values organizations. Since everyone (and, more importantly, First Amendment caselaw) recognizes his right to do this, and since most gay couples will prefer not to directly donate their wedding money to a lobby group that fights the very marriage they’re trying to celebrate, the end result is just what legal discrimination would have achieved on its own. When you confront a gay lobby supporter with this fact, their typical response is to say "great, then we’ll boycott that baker," a response which ironically makes the point it’s trying to respond to. So, to recap, even with legislation in place, people will continue to be able to refuse service by other means. To the extent they can’t, it will have been a boycott rather than the existing law which forced the change of heart. It’s worth pointing out here that the only people against whom boycotts are ultimately effective are people whose religious convictions aren’t as deep as their pockets, so to speak, which is the tragedy of the whole arrangement. It’s very much a water ordeal for witchcraft in that the only way to prove your sincerity is to close shop. All of which is to say that continued action at this point is likely to cause more harm than it prevents, especially given how rare actual business discrimination agayst gays is.

And that, ladies and gentlemen, is why it is a bad thing – because it is neither necessary nor likely to be very effective. As much as the gay lobby loves the analogy, the truth is that it doesn’t really hold. Gays are simply not under any kind of Jim Crow system, and while pretending they are may make the speeches more satisfying, it doesn’t do anyone any good in the real world.

Indiana should not have amended its RFRA. To the extent it did, it should have stuck to the Senate amendment – linked above – that left in a loophole for localities with their own anti-discrimination ordinances. That one was a compromise. The one that they ended up passing was a sellout.

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