Saturday, March 28, 2015

Indiana joins the gang: the new "Religious Freedom Restoration Act"

Before I invested some time in the particulars of Indiana's new Religious Freedom Restoration Act (RFRA), here's what I wrote:

I don't know if I'm going to bother with a lengthy weigh-in about the brouhaha on Indiana's (in)famous new law. But here's what I'll say for now:
Good luck to anyone who wants to a.) write legislation on "discrimination"; or b.) critique that legislation in a way that's coherent.
I haven't studied A yet in this context (enough to form a useful view of that matter), but I've seen a bunch of ugly stuff in category B on FB.

Now that I'm making an investment and trying to write something more specific, I should probably open with this caveat:
Good luck to anyone (me!) who wants to c.) write about legislation on "discrimination" and critique those whose criticisms are largely incoherent.

The law may get tweaked in the coming weeks. (For some strong analysis of the current law and discussion of prospects for change, see: this WSJ article [and google the title if you can't access it straight-up].) And it's amazing/sad that the proponents of this did such a poor job "selling" this and "responding" to the concerns/questions. (Pence has since penned a useful essay for the WSJ.) So, at least for now, what is useful to say, questions to ask, etc.? 

A few observations: 

-This WaPo author makes two useful observations: 1.) At least 19 other states have laws like this. (This WSJ article says "some 30 states".) Perhaps it's fortunate that Indiana's actions have finally awakened the outrage, but it makes the excited opponents look silly since it's the first time they've raised the concern. And why would they argue for discrimination vs. Indiana but not the other 20-30 states?

-WaPo point #2: The state-based laws are similar to a Federal law passed by President Clinton in 1993. The Weekly Standard notes that it passed the Senate by a 97-3 vote and was co-sponsored by soon-to-be Senate Minority leader, Chuck Schumer. They also explain the potential need for state-based laws, given a 1997 SCOTUS decision. 
(Scott Shackford at Reason discusses the same incoherence.) In a word, consistent outrage is difficult/impossible here-- and the sudden awakenings (most notably, by Hillary Clinton and Chuck Schumer-- who have, so far, refused to clarify why they supported it years ago) are somewhere between amusing and pathetic. 

-The WSJ article also makes a point to which I alluded above: "The law covers a relatively complex issue-- setting a legal framework for those who claim a government rule or requirement is hampering their exercise of religion." Examples include long hair for religious reasons vs. a dress code. In each of these cases, we have the tension between individual "rights" (when do my rights conflict too much with yours) and individual vs. community preferences as codified (well?) by law. 

-Here are two useful resources on the legal side of things: a thorough post from Kevin Duffy and a nicely-done "resource page" and FAQ from Indiana's House GOP. (On the latter: yes, I recognize that they might be trying to justify themselves, but read it for yourself and report back with your critiques.) Update: This from Joe Carter seems helpful as well, including the factoid that the 1993 law passed unanimously in the House. Eugene Volokh weighs in here, with more legal analysis. See also: Doug Masson's comments. And then, maybe the most important piece-- by law professor and "a supporter of gay rights", Dan Conkle

-It's not clear how much this whole thing is related to law vs. mere posing-- on both sides. If you're into posing, please stop. You're part of "the problem". If you're responding the posers, you might want to reconsider your angst, since it's not good for your look. Here's a terrific blog post by Stephen Warner on these points (and more). In addition to arguing that the bill says nothing and means nothing (given its vagueness), he provides links to the actual (two pieces of) legislation and notes that neither "discrimination" nor anything about sexuality appears in the laws.  

-Here's a beauty from the CEO of SalesForce, Mark Benioff, focusing on Indiana over the other states with the same law and comparing China's human rights record with Indiana's. 

To the stated concerns, here are some basic questions-- all of which have decent, if not consistent, answers: 

-Why do we want to force business owners to serve people? 

-Why do we think it's ethical to force business owners to serve people? 

-Why do we think it's practical to force business owners to serve people? 

But then the questions get tougher:

-Why do we think it's ok to force business owners to serve certain people, but not other people? (See: Christians with the ACA and abortifacients, gun-toting customers, some cakes or t-shirts but not others.) Mollie Hemingway provides a sample/list of 10 (highly sympathetic) people who have been helped by RFRA's. 

-Why are "liberals" who consider themselves "pro-choice" ok with not allowing choice here? (The best coherent answer is that the discriminators are doing direct and significant harm to others.) 

-How do we have high standards for ourselves while practicing robust (vs. tepid) forms of tolerance, love, and compassion? 

-Why do people imagine that "right-to-work" laws will NOT be good for Indiana's economy (by attracting business)-- while a law like this (even under the most stringent assumptions-- aside from the brouhaha created) will cause significant economic damage. See also: a higher minimum wage will not create unemployment. Of course, the extent to which the cause will have an effect is debatable. But it's not a good look to totally deny the one and go crazy about the other. 

-UPDATE: For another nice set of questions, see this strong essays in the NYT from Ross Douthat. I have another from the IPR's Tom Huston.

I planned to comment on some of the comments out there. But that would take too long; some people are too blind; and I don't want to embarrass anyone when casual political observers who are throwing mud (without recognizing what they're doing). Instead, I'll settle for responding to this quote/meme from George Takei. It's good, but not as applicable as he imagines for this context: "If you have to make laws to hurt a group of people just to prove your morals and faith, then you have no true morals or faith to prove." Of course, that's not the purpose of the law-- let alone, the single purpose of the law. Or perhaps we could apply Takei's quote to those on the Left who want huge taxes on those with higher incomes-- or who are fond of using legislation to mess with all sorts of people.  

Along the same lines, let me close with two paragraphs I took out of the op-ed I penned on this (it appeared here on-line first). They tended toward preachy and snarky, so I decided to take them out of highly-public discussion, without the context of my blog to help out. 

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? 


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