Note: This post is really long, and violates the laws of blogging by not making an implicit claim of being absolutely true, correct, and inarguable, so you’re better off not reading it. And if you have the common-sense not to actually read it, I hope you have the common sense to not comment on what you haven’t read.
Last week, as Indiana’s Religious Freedom Restoration Act (RFRA) was being passed, one thing was clear in all the hoopla–almost nobody who was chattering about it, friend or foe (including, I regret, myself) had actually read it. Nor had nearly anyone really taken time to compare it to other states’ RFRAs, digest the actual legal meanings, and ruminate upon what they meant. As is normal now in our 24/7-news-cycle-social-media-driven culture, the prime directive was to make an authoritative-sounding statement right now.
But these issues are more complex than we chattering classes like to let on. Even we really smart people need more information than is immediately available, and particularly we need the various bits and pieces that come dribbling out over a matter of days from various sources. For example it took a few days of people saying “so what, lots of states have RFRAs” to get critics of Indiana’s RFRA to point out that the particularities that (allegedly) make it different from the others, and then a couple more days for people to start actually looking at those others to see if it’s true, and for someone to point out that arguably at least one state’s RFRA (Connecticut) actually protects the right to discriminate even more strongly than Indiana’s does.
So for all those, whether pro or con on Indiana’s RFRA, who asserted a confident opinion right off the bat, I say just shut the fuck up already because you only think you knew what you were talking about, and were actually responding ideologically rather than will anything like a complete understanding of the facts.
As for myself, I drifted across that line a few times myself (shut the fuck up, Hanley), but mostly tried to focus not on the meaning of the law itself, but on the politics of the issue. Given the tone of the general debate and my own pussyfooting around, though, I doubt that was clear to anyone. So, about a week down the line, I’m ready now to make some tentative comments about the law itself.
First, though, here’s where I’m coming from, politically:
- I believe there is an individual right to free association that allows people to discriminate, up to a point. At the absolutely a protected right end, I’d say if a person is looking for a roommate, they can discriminate on any grounds they want, because they’re looking for someone to share their living quarters, their most personal private spaces. At the absolutely unprotected end, we can’t use the power of government to create legally mandated discrimination against any group. That far, I think most people agree. Where I draw the line, then, is between sole-proprietorships and joint-stock corporations. I would allow owners of business organized along sole-proprietorship lines to discriminate, because the person is the business and the business is the person, or near enough to count. (Not all my friends agree, and I understand and respect their reasons.) I would not allow joint-stock businesses to discriminate because the owners are not the business and the business is not the owners. That distinction is formed in our law, as joint-stock corporations’ owners have limited liability–they are not responsible for the debts of the firm, so they are not the firm in the same way a sole-proprietorship is.*
- I despise people who would discriminate on grounds of race, gender, sexual orientation, religion, etc. I may defend the right to discriminate, but that doesn’t mean I defend the fact of discrimination, or the decency of the discriminator. Not everything I find vile is thereby legitimately banned, a crucial distinction that I think is lost on most people, left and right.
- I’ve been commenting a lot on the politics because 1) I despise discrimination, 2) even if they have the right to discriminate, I think Christians are being hypocrites by expending so much effort on protecting themselves from having any connection with this particular sin, 3) I’m amused that their determination to be so hypocritical is likely to blow up in their faces by costing them millions of dollars, and 4) I’m irritated by my fellow-haters of discrimination who are acting like this law is the great crisis of our times, as though not having that particular baker make you a wedding cake is in any way as destructive to the gay community as the war on drugs is to the African-American community. Yes, it’s nasty, and yes, it can be painful, but it’s a goddam first-world problem, folks. The law won’t give Christians or Muslims the right to stone gay people as an exercise of their political beliefs.
Now, on to what Indiana’s RFRA really says. The text is here. If you want to argue about it without taking the time to read it, just shut the fuck up right now and go away. This is my bawdyhouse and I reserve the right to discriminate against people who are too lazy to read.
- First, it’s worth pointing out that the bill does not explicitly give a right to discriminate. It does not say, for example, “a business may refuse service to homosexuals.” And the significance of the absence of such explicit language means that ultimately it will be up to the courts (both Indiana and federal) to determine if the law actually allows that. I’ll come back to that.
- Second, some quick background is useful. The original RFRA is a federal law. It was designed to apply also to the states, but the Supreme Court ruled that element of it exceeded Congress’s authority. Since the federal RFRA could not apply to the states, some states has passed their own RFRA laws. Indiana makes, depending on which count I believe, the 20th or 22nd state to pass one.Additionally, the original RFRA was broadly supported by both liberals and conservatives. The predominant motivating event for the federal RFRA was the Supreme Court’s ruling in <i>Employment Division v. Smith, in which the Supreme Court approved the denial of unemployment benefits to a Native American who used the illegal drug peyote as a sacrament in Native American Church ceremonies. Across the aisle people saw this as a bad decision, one that should have granted more respect to Smith’s free exercise rights.
And now 2/5 of the states have their own RFRAs, so why, suddenly, are liberals backing off from their support? Two reasons, I think. First, because of the Hobby Lobby, in which the Supreme Court used RFRA to uphold Hobby Lobby’s right to not cover contraceptives. Second, because of conservative Christians’ objection to same-sex marriage. In brief, liberals no longer see RFRA primarily as a tool to protect the rights of politically weak religious minorities, but one to protect the rights of more mainstream and more politically powerful religious groups to take actions that negatively affect liberal interests.
Live by the sword, die by the sword.
- In at least one important way, Indiana’s RFRA is similar to the federal RFRA (and maybe to most state RFRAs, but I haven’t reviewed them all): It requires the state courts to use a strict scrutiny standard when judging any action that violates a person’s free exercise of religion. This means there has to be a compelling interest of the state in burdening a person’s religious freedom rights. To take the extreme example, we can use murder laws to punish volcano worshippers who sacrifice virgins to appease the volcano gods–preventing murder is a compelling state interest.The federal RFRA’s attempt to tell the U.S. Supreme Court what standard to use is risible. Congress doesn’t have that authority over the federal judiciary. But what about at the state level? Beats me–I don’t know enough about state-level law to know if a state legislature can dictate the state courts’ interpretive standards (that is, I don’t know if at the state level courts are truly co-equal branches; state and local government isn’t really my area of study), and I haven’t yet seen anyone address this question. So, possibly, the state’s courts could thumb their nose at the legislative insistence upon a standard of review. Or possibly not.
However telling the courts what standard to use and telling them what result to reach are not the same thing. Eliminating discrimination is arguably a compelling state interest, because in the end a compelling state interest is what the courts say it is. And Indiana’s justices are certainly knowledgeable enough to write legally reasonable opinions arguing that non-discrimination is a compelling state interest, if they are of a mind to do so. Are, or will they be, of a mind to? We need a specialist on the Indiana Supreme Court to tell us that, and there are damn few political or legal scholars specializing in close analysis of their state’s Supreme Court. Were we California, I’d have some real hope of an answer. But Indiana isn’t California.
- So what about the ways Indiana’s RFRA is allegedly different? One notable characteristic is that Indiana’s law applies not just to sole proprietorships–where I would be sympathetic to it–but also to publicly traded corporations.
Sec. 7. As used in this chapter, “person” includes the following: … (3) A partnership, a limited liability company, a corporation, … a joint-stock company,
For reasons I explained above, I find that very problematic. However in this day and age I’m dubious that there are many joint-stock corporations that are going to bother with using religion as a justification for discrimination. Their discrimination is going to happen the standard way for this day and age–through bad management that is oblivious to what they’re actually doing.
- The law is arguably too loose on what counts as religious exercise.
Sec. 5. As used in this chapter, “exercise of religion “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
I’m not sure how this compares to other state RFRAs, and I have mixed thoughts on it. One the one hand, a lot of what we think are “religious” beliefs are really more culturally based, and we confusedly bind them up with religion (Christmas celebrations, for example), and I’m dubious that these fringe elements of religious practice deserve the same protection as practices that are more fundamental, or central to the belief. On the other hand, I don’t like the idea that the courts would get involved in determining what practices are central to a religious belief, because ultimately that is between an individual and their (perspective of) God.
Further, if, like me, you accept a right to private discrimination by sole proprietorship-type companies, then this doesn’t matter, because it’s not their justification of their right that matters, but the right itself. However if you don’t accept that there is a right to private discrimination in any business enterprise, then this potential looseness in the law could be cause for concern.
- Garrett Epps at The Atlantic argues that Indiana’s law differs in that it allows the religious freedom defense to work in private causes of action–e.g., the gay couple suing the baker who won’t make them a wedding cake–as opposed to applying only to defenses against the application of laws by government agencies. This part of the law clearly is directed at creating a defense for that kind of discrimination, and so to that extent this is the clause that justifies the claims that the law is targeting gay people.It’s not clear to me why that would matter, though. It seems to me that if religious freedom is a defense against government action, then it is also a defense against government either forcing you to provide a service or forcing you to pay compensation for not providing that service. So it’s a new wrinkle, but not obviously (to me) a hugely significant one. But I’m open to someone more expert in this area of the law explaining why I might be wrong.
And further, the law appears to explicitly allow a government agency to intervene in such cases.
Sec. 9. … If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.
It appears, then, that any non-governmental action can, without conditions, effectively become one, so the lines of distinction upon which the critique relies are blurred.
- And then there is the new revelation that Connecticut’s RFRA may provide even greater protection for discrimination on religious grounds than Indiana’s. This has come forth in the context of mocking Connecticut’s governor Dan Malloy for his criticism of Indiana’s RFRA. Malloy is a possible Democratic presidential contender next year, so both his criticism and the gleeful response that he’s ignorant of his own state’s law are overburdened with political posturing.Nevertheless the underlying argument is correct. Indiana’s law refers to laws that create a “substantial burden” on religious freedom, while Connecticut’s only specifies a “burden” on such freedom. In practice, as interpreted by the Courts this distinction could mean nothing, or it could mean a great deal because that word “substantial” has great legal meaning (if the justices are inclined to pay attention to it). The word “burden,” absent any modifier, would include–if the judges so decide to interpret it–merely incidental burdens. In contrast, Indiana’s law would apply onto to laws that create a more than incidental burden, a substantial one. And it’s quite legally plausible that the state’s courts could determine that having to bake a cake (or a flower display, or take pictures at) a same-sex wedding is a merely incidental burden on religious freedom, not a substantial one.
How do you know whether the court would interpret substantial that way or not? Find out what they ate for breakfast.
In conclusion, yes, the law does appear to be clearly designed to allow businesses to discriminate for religious reasons. However it’s not certain that the Indiana courts will interpret the requirements of strict scrutiny, compelling government interests, and substantial burdens in a way that allows that to actually happen. Maybe they will. But you don’t know that they will, so shut up already.
And, yes, I think there’s a right to private discrimination, at least within particular bounds. But if you’re more dedicated to vindicating your right to religious discriminate so you don’t have to linger around someone else’s sins than you are dedicated to getting your own sins under control, then you’re not really understanding what Jesus said, so shut up already.
Seriously, all of y’all, just shut. the. fuck. up.
*I find the Hobby Lobby case tricky because its form of ownership fell between these two models, being joint-stock, but closely held rather than publicly traded. Is Hobby Lobby the Green family, and the Green family Hobby Lobby? Well, less so than Joes’ Garage is Joe and Joe is Joe’s Garage, but more so than GM is GM’s stockholders and GM’s stockholders are GM.