The RFRA: Relying on Law to Mediate Social Differences

This op-ed derives from an earlier blog post, which has less structure and links to tons of resources. 

Thanks to Craig Ladwig at IPR for improving (greatly) on my chosen title. 

And note that the two paragraphs or so, marked in blue italics toward the end, were excised from the in-print versions-- to reduce the word count and the snarkiness/preachiness of what is a sensitive topic. I think those words and sentiments are fine, as is, but people haven't been all that rational in this "discussion", so it's better safe than sorry-- at least in more public media. 

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Let’s start with a riddle: What federal legislation was incredibly popular 20 years ago, but created a firestorm when Indiana passed a similar law last week? If you’ve been paying attention to any media, the answer is obvious: the Religious Freedom Restoration Act (RFRA)! 

Agitation and confusion over the law’s intent may lead lawmakers to tweak it. But for now, what can we say? (It’s beyond the scope of this essay, but for help on the legal aspects, I’d suggest reading Dan Conkle, Kevin Duffy, or Eugene Volokh.)

First, depending on the comparison, 19 or 30 other states have similar laws, including “liberal” states like Rhode Island and Connecticut. So, why the furor here and now? On the one hand, opponents look silly since the fervent concerns are new. Why would this law be discriminatory in Indiana, but not in other states? Why did President Obama vote for legislation like this when he was in state government? Why would the mayor of Seattle and the governor of Connecticut want to boycott Indiana when their own states have the same sort of law?

On the other hand, it tells us that context matters. Indiana’s law was passed in the wake of the recent tumult over “same-sex marriage”. And so, passage of the RFRA has been interpreted by some people to be focused simply on “gay rights”. (How quickly we’ve forgotten the Hobby Lobby case!)

Second, the state laws are based on a Federal law passed by President Clinton and a strongly Democratic Congress in 1993. Of our 538 legislators, only three Senators voted against it! The law was introduced by Chuck Schumer (D-NY), probably the next Senate Minority Leader.

As Schumer, Obama, Clinton, and thousands of other politicians are pressed by journalists, it will be interesting to hear them explain how the 1993 effort was glorious, while the 2015 law is evil.

Third, it's not clear how much of this is political posturing. If you're posing, please stop. You're part of "the problem". If you're responding to posers, you might want to take a deep breath. (Stephen Warner has a terrific blog post on this angle. He argues that the bill “says nothing and means nothing”, given its vagueness. And he notes that neither "discrimination" nor anything about sexuality appears in the RFRA.)

Let’s turn from observations to some basic questions. First, what are the practical concerns with such laws? These are complex issues—and it is difficult to write laws in a way that deals with all contingencies. (The likely effort to revise the bill speaks to this reality.) Moreover, this law will not operate in a vacuum; there is a stable of relevant laws that strive to limit discrimination and balance competing interests.

Second, a more important question: Why is it ethical to force business owners to serve people? The strongest answer is that we don’t want some people to impose direct and significant harm on others, especially when the harm is larger. But this remedy is problematic when the use of force itself causes direct and significant harm. If an owner refuses to produce t-shirts for a racist group, the group members are harmed, but forcing the owner to make the shirts will cause harm as well.

Third, why is it alright to force business owners to serve certain people, but only in some, politically-correct contexts? Should an owner be forced to serve customers who are legally carrying guns? Should a homosexual store owner be forced to decorate a cake with Romans 1:26-27? Should a Catholic school be forced to hire non-Catholics or teach doctrine that contradicts their beliefs? Should the Affordable Care Act have tried to force Hobby Lobby and other companies to provide insurance for morally-troubling abortifacients?

In this light, the larger issue is an over-reliance on law to mediate social differences. Or putting it another way: Can’t we all just get along? My family and I visited Selma again last week. But today, we’re not talking about systemic, massive abuses of civil rights by the majority population—as with racial problems, 50 years ago in the South. The current complaints are centered on the occasional landlord, restaurant owner, photographer, or baker.

This should be especially easy to understand for self-styled "liberals" who promote themselves as "pro-choice", tolerant, and empathic. Christians should do well here too: a call to high moral standards while practicing robust forms of tolerance and love.

What do we have now? Partisan TV viewers, “Facebook lawyers” cheering for their team, and a bunch of children playing “gotcha”. A same-sex couple wants to bully a conservative Christian into decorating their cake. A shallow Christian wants to sue a gay man who doesn’t want to make an offensive t-shirt. It reminds me of a kid with a magnifying glass torturing an insect. Put down the magnifying glass of litigation and act like an adult.

Instead of relying on the law to address these things, how about we just grow up a little bit? Recognize that people won’t always agree with us—sometimes on profound matters—and some will even try to hurt us. When we encounter those people, fight back if you must. But more often than not, try to empathize, practice a robust form of tolerance, pity them if it’s vital to you, and just move along with your life.