Does Freedom Have a "Be Nice" Clause?
By now, you have likely been exposed to the firestorm of media attention and outrage over Indiana's "Religious Freedom Restoration Act." The media has painted it as highly divisive and controversial, despite the fact that nineteen other states have similar laws and that it is modeled after existing Federal law. While the attention is overkill bordering on hysteria, it is worth a closer look.
Overwhelmingly, it has been painted as a "Christian Right versus Progressive Gay Rights" argument but, being neither gay nor religious, I don't see it that way. What this law does - once you remove the adjectives and suspend any vested interest you may have - is state that, if you are sued for discrimination, you may introduce the defense that your religious beliefs require your refusal to provide a voluntary service. The court may still reject that defense.
That's it. End of story.
What is growing beyond the bounds of the actual law is the claim that this "may encourage" discrimination (a Chicago Tribune interviewee went further, stating that this law "essentially... tells these people [the LGBT community] in Indiana that they need to stay hidden.”) and this is where the danger lies. The "it could happen" argument has been used to oppose gay marriage itself ("It could lead to the demise of traditional marriage if we allow this."). It has been used to promote gun control ("Criminals could get guns if we don't add more restrictions."). It has been used to reduce our privacy ("Terrorists could plan attacks unchecked if we don't listen to everyone."). And it has been wrong - morally as well as factually - every time. It's intellectually dishonest.
In this case, however, it does bring up an interesting question. Is the role of government to force us to be respectful of each other? If you are not denying someone a fundamental right (free speech, voting) or life-saving service (emergency room access) but are merely being rude and/or disrespectful (refusing to bake a wedding cake), should the government force you to "be nice" and stop it?
This law does not give carte blanche permission to businesses to turn away gay customers, but what if it did? Why not allow business to turn you away because you are gay or straight; Black, or White, or Asian? Why not require that all men entering a store wear a yarmulke or all women wear a hijab? Let's make it even more offensive. Why not dictate that any black person entering the store wear a Klan hood or any Jew wear a yellow star? Such businesses may suffer a loss of support until they can no longer operate - or they may flourish because they reflect the true values of the local community. But their fate would be dictated by honest expression of cultural mores.
If the only thing that keeps members of society civil to each other is government compulsion to engage in commerce, we aren't living in a tolerant culture, we're living a lie under an umbrella of intimidation. When we seek to reverse laws that encourage cultural honesty and individual free expression, or to pass laws that penalize them and compel specific social and business interactions, we are acting like thugs. We're saying, "Government, they disrespected me. Go f*** them up for that!"
This is what smaller government looks like. It means we are free to be offended and offensive; free to be discriminating and discriminated against; free to be bigoted, or ugly, or hurtful. But it means we are free. And when we establish the precedent that any select group has the right to wield the power of law like a coercive bludgeon, we set ourselves up for far greater potential victimization than just hurt feelings.
Be careful what you ask for.