In their haste to denounce Indiana’s religious freedom law (before it was revised) as a license to discriminate, critics not only threatened a treasured American principle, they lost sight of a fundamental truth about human nature.
To paraphrase the insurance commercial: People discriminate. It’s what they do.
Unlike mere animals, human beings choose friends and compatriots based on a variety of shared values, likes and dislikes.
These can range from the frivolous—like Beatles fans who subdivide their ardor for all things Fab Four depending on whether it occurred pre- or post-Rubber Soul.
Or they can be as consuming as the convictions that inspired Martin Luther to defy the established church of Western Europe and launch the history-shattering Reformation.
Freedom to Choose
In either event, the drive, or in some cases, need, to discriminate is so entrenched in humans that it is recognized as a right protected under various legal theories, such as freedom of association.
Which brings us to the problem at hand: How does society remain both diverse and free?
How does it guard the right to discriminate without lapsing into unfairness and even oppression?
In Indiana, argue gay rights activists, it hadn’t. They claim that by pledging the highest protection for the values of some—those who call themselves religious—the law enabled these citizens to deny goods and services to others whose self-professed sexual identities this “favored” religious class finds repugnant.
In other words, the law denied the rights of some to participate fully in society.
But did it?
True, a society that seeks to be called just must never deny out of hand the opportunity for any individual to fulfill his or her basic needs or to seek self-fulfillment, assuming this fulfillment entails nothing immoral or socially destructive.
But is that what we’re talking about?
Not in Indiana, nor in any of the 20 other states that have adopted similar religious freedom laws.
In fact, commentators writing in support of religious freedom restoration laws point out that the loudest critics of these measures—homosexuals and their allies—have yet to be denied essential services in any place where these statutes have been enacted.
Quite the contrary, it seems the greatest fear of the anti-religious freedom scaremongers is not that they’ll lose access to housing, health care or jobs. The worry raised most in their overheated rhetoric is that, with increased legal protection for religious beliefs, bakers, florists and photographers who refuse to participate in gay weddings will no longer be easy targets for lawsuits. Or be coerced into providing these services, therefore making a tacit statement that they agree.
Could such protection such a bad thing? As we’ve noted, a wide range of legal protection already exists for certain kinds of discrimination.
For example, read the terms and conditions for advertising in the Washington Post, and the first thing you’ll notice is that the paper reserves the right to deny ad space to anyone or to edit any ad it does agree to publish.
Presumably the Post and other publishers can claim these rights based on free speech laws and the fact the market offers jilted advertisers many alternatives for spreading messages the mass media paragons may find opprobrious.
Why, then, can’t the same idea be applied to artisans and professionals who don’t wish to be forced to participate in events that deeply offend them? Freedom, remember, is not merely positive—as in the freedom to do things that one finds meaningful. Freedom also means not having to violate one’s conscience.
This freedom to dissent—which is fundamental to the American ethos—is what the state-level religious freedom restoration acts are meant to support. They are meant as well to apply to everyone.
And what’s so objectionable about that?