[This post is a day late. Excuses: I got bogged down looking these laws up. I accidentally had “insert” on, and I deleted large chunks without realizing it.]
It’s been in the news recently that a few states have (re)issued “Religious Freedom Laws.” The most recent being Mississippi’s Protecting Freedom of Conscience from Government Discrimination Act. I won’t get into the details on this particular act but instead try to present some arguments from both sides of this debate that I think are good and bad.
Like most liberals, I tend to react from my gut and conclude these things are horrible. This is mostly an attempt to take a step back and figure out the actual arguments. I’ll take a philosophical approach and assume for the sake of argument that the laws are written in a reasonable way to achieve their intended goal rather than pick apart the specific language of any one of them.
This means we’ll assume that there is a (local) law that says public accommodations must serve people regardless of race, sex, sexual orientation, etc, and that the newer religious freedom law exempts people from following the nondiscrimination policy based on a “deeply held religious belief.”
Good pro argument: It’s not a big deal for people who are denied service for any reason to go somewhere else. I actually think this is a pretty good argument. When I was planning my wedding, I think back to how I would have felt if someone would have said, “You know, we’re family owned, and we prefer not to do gay weddings for religious reasons. We can put you in contact with several other local bakeries that do them instead if you don’t mind.”
Wedding plans have lots of setbacks. This one would be the least of my worries. I find it hard to care that much. I’d think they were homophobic jerks, but if the laws were written in a way that said: if you deny service for a religious reason, you must provide contact information for a service of equal quality within a reasonable distance, that seems to be a good trade-off. In order to discriminate, they have to advertise for their main competition. If there isn’t competition, they wouldn’t be allowed the exception.
Good anti argument: It’s not a big deal for the provider to just provide the service. Part of being an adult who engages the public is to deal with people you don’t like or who make you uncomfortable.
Let’s take two examples. The first is the clerk who hands the documentation to the gay couple. This should be easy. It’s just a piece of paper. I don’t even think that clerk has to sign it. They literally just hand it to you. That person isn’t condoning anything or celebrating anything or participating in anything. In other words, it’s just not a big deal to provide that service regardless of religious belief.
A slightly trickier example is baking a cake for a wedding that “goes against your religion.” Let’s remove the gay wedding from the example. This becomes a question of whether the person has developed the normal adult cognitive faculty of separating a pure business transaction from their personal life. It’s childish to care so much about how a cake is going to be used.
I’m sure there are Catholic bakers who believe getting remarried without an annulment is a sin. Or heck, they probably believe all marriages should be through the Catholic Church. Yet they manage to provide cakes for all sorts of weddings that aren’t a part of their religion.
My guess is that they have the ability to forget about it once it is baked. If it bothers you so much, stop thinking about it so much. The cake baker is not “participating” in the wedding. They are not “condoning” or “approving” of the wedding. They won’t even be attending. The ego needed to think so highly of their service is staggering.
I maintain that this is true for every scenario the law is intended to cover. Grow up. It’s not a big deal to provide the service. Sometimes, in real life, you have to deal with people you don’t like. That’s just part of running a business. It’s special pleading to get a law to shield you from these people.
Consistent libertarian pro argument: All services should be allowed to discriminate however they want. It’s 2016! The market will weed out the discriminatory services fairly quickly, because everyone will boycott them for discriminating. Then, without any government intervention, we will be in the same situation that the anti side wanted.
I have no idea whether this is empirically true, but I respect the consistency of the argument. This brings up a bad argument on the pro side. Some people say the law is okay because it has “targeted language.” This is a horrible argument. It is an attempt to get around the slippery slope of allowing all people exemptions to all things based on vague “religious beliefs.” But being targeted is admitting that the law is specifically designed to legally discriminate against one targeted group. That is unacceptable. Religious bigotry cannot be written into law. The consistent libertarian pro argument is much better.
Slippery slope anti argument: Allowing religious exemptions will lead to chaos. The language of “deeply held religious belief” is too vague. That could mean anything. Maybe it’s my deeply held religious belief that it’s a sin for Asians to eat pork. Am I allowed to deny them service at my all-pork restaurant based on that?
This gets back to the libertarian argument. I think if the pro side wants to be consistent, they have to say this is allowed. The fact that they won’t go this far is a sign that their argument isn’t very good if made in this way. So ultimately I think I have to come down on the anti side unless there was solid empirical evidence that the libertarian argument would work.