29 March 2015


So a neighboring state decided to pass a law. Lots of reactions occur. Some thoughts

The actual text of the law isn't substantially different from the federal statute (passed back in the 1990s over a different issue). The main difference I can find is that it specifically allows for religious-based defenses in private lawsuits (concerning discrimination). This is possibly true in the federal statute but the Supreme Court hasn't issued any opinion on it as yet and there's a circuit court split over whether the federal RFRA protects private individuals from each other or not on this point.

Actually the main difference I can find is that in between this statute being enacted and the federal one, a Supreme Court decision occurred (Burwell), which potentially allowed large scale corporations to have religious beliefs. Smaller scale ones kind of could always do some weird stuff that would pass unnoticed.

A second main difference is that Indiana, among other states, currently has a legal standard owing to court rulings requiring the recognition of homosexual partnerships as marriages. Which is what is primarily what is at issue in these religious liberty exercises sought to be protected is the practice of some small number of people to privately refuse to recognize such by being required to provide services in the attendance of ceremonial duties at weddings between such. More broadly other forms of discrimination against homosexuals such as hiring/firing practices or perhaps residency in apartments or some other manner of discrimination could be at issue for reasons that will be examined in a second.

A crucial aspect of the law is that it requires a "substantial" burden or the possibility of such in order to be invoked at all. On that point I'm a bit confused as to why Indiana is getting a lot of attention and, say, Mississippi is not. Because Mississippi's statute is different and does not require a "substantial burden", just a "burden". But the basics here would be that Hobby Lobby (supposedly) can not purchase certain kinds of birth control when otherwise compelled by law, because it is believed to be relevant to their religious practices (there were factual grounds for dismissing that claim I thought, in that those beliefs were factually wrong and therefore without merit on at least several of the drugs under consideration in that case). I would think this would generally allow for a baker or florist of a fundamentalist Christian affiliation not to be required to provide services at a wedding for which they have some religious disagreement (principally those between homosexuals, though there may have been some that refused service on remarriages or those between divorcees, etc). What it doesn't do is allow a restaurant owner to decide their religion protects and even demands that they not service anyone they believe is homosexual. Or some such related case. That kind of claim is very liable to be dismissed as there is no factual basis for a substantial burden test.

But. Because the Burwell/Hobby Lobby case was decided without having any kind of factual examination for the claim being made (it was simply assumed that the burden existed because the religiously based belief asserted it did), we do have a somewhat wider and weird legal realm where it is unclear what is in between those positions and what will be considered a substantial factual burden on the exercise of someone's religious beliefs and what will not, what will be considered a protected class of action and what will just be discrimination. That I think is worthy of consideration to say that this law was a potential problem in that we do not have a clear legal guideline on what constitutes free exercise, even when discriminatory, and what is just discrimination being masqueraded as religious expression.

The thing I have trouble understanding here is why that same claim isn't applicable to other states that have pre-existing statutes like this, or the US government itself. There are now 20 states with some variety of RFRA, generally similar to the federal statute as Indiana's is. Including Connecticut and Rhode Island and Pennsylvania (it isn't just random loony red-states). Plus another 13 that have something in the pipeline that could be passed within the next year. Plus the federal government. It may be worthwhile to oppose the signing of any new laws, and some laws have been very overt and specific (Arizona's second attempt for instance. The first had already succeeded but apparently didn't go far enough for the "religious liberty" crowd). It may be worth attempting to overturn these statutes even. What isn't clear is what singling out one state does when others have the same basic framework in place. Illinois for instance.

Those other states, or the US government, aren't going to overturn their laws and will suffer no major ill effect from a boycott targeting one state in the attempt to get it to overturn the law. Part of the reason apartheid eventually failed in South Africa or even Jim Crow to some extent was economic pressure. So I understand the impetus to boycott. Just make sure you know where and how wide the net has to go. Or you kind of look silly.

As far as these laws. I'm unclear on how widespread this particular type of discrimination is, both legally and physically. I can definitely imagine there will be some number of businesses try to deny service to homosexuals. Some of them could be hotels or restaurants and likely will be prevented from exercising that form of discrimination as it will not rise to be a substantial burden (there isn't any religious belief that I'm aware of that could apply). Some may try to fire people or deny a job being offered on those grounds (this type of decision usually allows for people to make other determinations and claim those instead. Only morons actively claim that they discriminated against someone purposefully, but there are of course plenty of morons). I believe that's likely fairly widespread but as I insinuated, difficult to prove without specific claims. And some of these businesses may be bakers or florists or photographers refusing service at a "gay wedding" (or as I'd refer to it, a wedding). And those claims may end up being defended by these varieties of laws. I'm assuming there are a number of scenarios in between these that I'm less certain of still or less aware of. I'm unsure of how many of these kinds of cases there actually are, whether the existence of new laws would make them more likely, whether the existence of these said new laws would provide some social bulwark that would sustain them economically in spite of any backlash, and so on.

My general position on any of those claims is that people should be allowed to make them, but that the general public will be made aware of it and be able to coercively respond. In the form of a baker/florist/photographer, the public will usually have other options who won't deny service and word will quickly spread which options will or will not. Those that will not may see their services overall suffer from economic attention and pressure, both from boycotts and from other businesses who do not discriminate. Some of them may change their minds. Which should be the goal. That they change their minds about whether this is a religious expression that they are required to make in the business of offering a service in exchange for money. I think this would, in most states and most localities, work out much differently than Jim Crow, in part because of the standards that anti-Jim Crow legislation eventually provided (that it is morally repellent to refuse service to people at a publicly available business for random and stupid reasons like race, or religion) and that the explicit need for legislation either protecting the right of business owners to do this or the right of consumers to be served is unnecessary. This is something that could be worked out privately on that point. I favor neither the need for any explicit protection to discriminate nor the explicit protection against it in the absence of evidence that either is needed.

There is likely evidence that individuals will be sued over discrimination claims, and likely evidence that without some pre-existing law that recognizes it as a form of discrimination, such suits will not succeed (as they did in New Mexico). This however is not clear to me that using lawsuits is necessarily the most effective method of changing business standards or affecting the bottom line versus other more overt and public methods (boycotts for instance) and that we need a clear legal standard for everyone that allows, if not encourages, lawsuits to be a primary form of working such things out.

I have several major considerations here.
a) Public opinion is still shifting and forming regarding homosexuality and the recognition of proper legal rights regarding marriage. I favor such legal rights being equally extended for what are to me, obvious moral and legal reasons (it improves the quality of life potentially for some number of people to be able to enter into private contracts that are recognized with special rights and privileges by the government and for the government not to extend those special rights and privileges only to those legal contracts over which it approves of, while denying it to those that are similar in any reasonable respect). But I recognize that a large body of the public is still uncertain over this change. Mostly for religious or traditional reasons. I am uncomfortable imposing upon this minority every possible demand we can conceive of in order to get it to shift to be a much smaller minority.

b) Recognizing that the public's opinion has shifted, dramatically at that, this is a change largely coming about not because of the relatively small number of secular people whose minds shifted some time ago, but because an increasingly large number of Christians have changed their minds about what the appropriate legal standards should be, regardless of the standards of their religious congregations. They are recognizing that extending legal rights on a level playing field isn't going to make lots of people suddenly become homosexual (it is unclear to me how that is a bad thing if it did), or make lots of marriages that already exist weaker and invalidated (also unclear), will not harm children adopted or raised in such households, and will also make some number of their friends, family members, co-workers, and so on much happier with their own relationships and affections to be able to affirm them with the same legal sanctions that they did in their own lives. That is a good thing.

c) Recognizing that it is to these Christians who have changed their minds that the cause of gay marriage as a result owes some basis (albeit slowly), those people who favor advancing this as a cause to be protected and tolerated should seek to continue to change people's minds. There are many forms of argument available. The strongest is "you are legally required to do what we say", but this carries with it no requirement or mechanism that anyone actually change their mind and beliefs. They can resume being a bigot or privately intolerant if they find a means to do so. For instance, Christian florists could decide to form a private club where floral arrangements would be provided for a membership fee. Or they could do something else instead of running a flower shop. A weaker argument is "we do not approve of what you are choosing to do by discriminating against these people". But this argument also implies a dialogue can occur rather than imposing a final decision. Which is what has been happening for a couple of decades now is the general public is working out amongst themselves, very publicly at that, why this is a legal and ethical requirement that they should endorse and uphold and shifting toward that state of affairs. If their arguments against this are grounded in religion, so are many of those that have shifted to accept the situation now. Perhaps such arguments may be more compelling than simply issuing demands. Perhaps not. I am inclined to continue to let those arguments work themselves out. They will have to privately anyway. There are fewer ways to craft and impose laws that would compel families to accept a homosexual child, even if there are many ways to allow homosexuals to form families (marriage, adoption, etc).

d) One crucial aspect is whether the "public" as formed into governments may discriminate. This I think is a wholly different question than from what the diverse set of individuals may privately do in their homes and businesses. This is among the more compelling arguments for why the rights and privileges governments establish as coming along with our private arrangements for marriages should be equally available to both straight and gay couples seeking them. So a government would not be able to prevent someone access to public services and assistance, housing, licenses, and so forth on the basis of that person's personal sexual orientation. These laws are not centered around this question. Rather we are arguing about how much we can compel the public at large to decide the operation of their businesses and private affairs, and how much the government could compel such decisions. For instance by restricting business licenses. Eg, the case of the doctor in Michigan who denied her personal services in pediatric care for a lesbian couple and their child and demands by some that her medical license be taken away post haste. Medical licensing is done by the state (a somewhat less dubious state requirement than most). I'm uncomfortable with the state making that as a determination. What was most alarming was the unprofessional manner and the lack of dialogue (a refusal to engage with the couple once a decision was made, when that decision was a clear reversal of prior arrangements to boot), and for that some variety of sanction is perhaps appropriate. But what I do not wish to see is the public effectively demanding that everyone must orient themselves immediately and without delay to a world that has radically shifted over the last couple of decades. I do not expect that businesses will necessarily stop demanding drug testing for marijuana even in states where it has been legalized (either for medical or recreational purposes). That also has been a radical shift. I am not prepared to demand that employers must accept marijuana use as they tend to with alcohol (even though they should probably tolerate the former more than the latter, especially if someone is showing up drunk to work).

When we are making major changes in society's laws and operations, we should expect that some people resist those changes, sometimes for very dumb reasons. It is incumbent on us not to accommodate stupid reasons, but to recognize that they are there and convince people that they are in fact stupid and not reasons. This is, by and large, working in the case of gay marriage (and to some extent drug legalisation, albeit so far just a couple of presently criminalised drugs). I would advise that we continue to let that process work itself out and shake out where the bugs are going to be. If these are more widespread problems than I estimate that they will be, that there will be dozens of legal cases per year, every year in a given area instead of one or two say, then more action may be warranted.

Keep in mind also that I do not advise people not to boycott or to organise non-discriminatory alternatives, among other sub-governmental (but legal) actions to be available to respond to these as problems, employee strikes or walkouts could be another option, and so on down the line. I also do not think that such actions are a form of repression, nor do I think there would be some way to legally protect against them even if governments are to become compelled to allow people to be discriminatory on the basis of their religious beliefs. These actions are coercive, but they do not automatically force anyone to shutter a business or change their religious beliefs. Instead more people who tried to practice their beliefs in this way would have to engage with the uncomfortable notions that they may be wrong about their beliefs, or how those beliefs must intersect with their work at any rate, and they may also be able to try to present an argument as a result as to why their beliefs do or why they are correct. That is a good thing to have beliefs being challenged and argued in this way.
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