Please ignore the Russian tanks pouring into Ukraine and the Iranians getting themselves nuclear weapons. The greatest threat to world peace right now is Indiana bakery owners.
I don’t know whether the details of Indiana’s version of the RFRA make for a good law or not (and not living there, I couldn’t care less) but I know what it is intended to protect. I don’t know enough to say whether it achieves its intention.
The underlying principle to everything: the state relies on coercion* to achieve its ends: if you do not obey the law, you will be made to suffer horribly as an example to the rest.
In the United States, there is an old tradition of limiting that coercion: Quakers, for example, have always been exempt from the draft. The Amish are exempt from mandatory high-school, as well as lots of other minor laws like zoning and building codes. Though the United States has had, since 1973, an extremely permissive abortion policy**, the general understanding up until the ACA was that public money would not be used to fund abortions.
In other words, sensitive people were given a certain leeway for their moral qualms. They were given, within limits, the right to not participate in something they felt is wrong. They were allowed to opt out rather than go to jail.
Opting out is not always practical: I have a gay friend who used to work in a chain book store. While this friend has nothing against sodomy, he does have a moral serious objection against pornography. The production and sale of pornography is legal, and as a clerk he himself was not directly profiting from the sale, but he still wanted to create distance between himself and a degrading and exploitative industry. When he clerked with others he would discretely refer customers purchasing porn to another clerk. But when working alone he felt he had no choice but to sell the porn: not his store, not his policies. That seems right to me, a checkout line in a national chain is not the place to make other people uncomfortable about their fetishes. It would be pushy, exaggerated, and out of place. If it really meant that much to him, he could always change jobs, right?
What if my friend opened his own independent bookstore? Obviously, given his convictions, he would not sell porn. It would be his business, and his choice of what goods and services he sells. If a pervert were to launch a suit against him for discrimination against porn fiends, we would laugh. If the state of Indiana made a law requiring him to sell pornography against his will, we would naturally be appalled that this sensitive young man was being forced to actively participate in a financial exchange he felt was evil.
Now that gay marriage is allowed, the RFRA has lately been applied to protect small business owners who fall into a middle ground: they don’t want to be involved in transactions that cater to gay weddings. Weddings are a part of the business of photographers, bakers, or Knights of Columbus halls, but apparently some don’t want to make money off of gay weddings.
This is a subjective sensibility: if I were a caterer, I would not have any qualms about catering a gay wedding, even if I think gay marriage is a little ridiculous and a sign that marriage has become a hollow cultural institution: a symptom, not a disease. But if, say, my mother were a caterer, she would have qualms: marriage is a social good ordered towards procreation; this thing we call gay-marriage, being incapable of rearing children, is a sorry substitute that will only lead to further social disintegration. Though the couple to be married is understandably ignorant of the fact, their proposed marriage is an evil, and as such she would decline the business.
I disagree, but I see her point. I see no reason why she should be forced into the financial transaction. I think she should be able to opt out. Sure, the newlyweds might be annoyed at having to take their business elsewhere, they might even be offended, but that is not the same as a person being coerced into a financial transaction they feel is immoral.
The former is a case of one person’s inaction causing inconvenience or bad feelings. The latter is an act of violence: do this, preform this repugnant act, or I will call down the coercive power of the state against you. Which is worse?
I can anticipate some objections, the first good, the others bad.
- Objection: This law represents a slippery slope towards running gays out of town because now anybody can claim a religious objection to serving gays.
- Response: if that were the effect, it would be a bad law. I doubt however that is the intention of the law for three reasons: first the cases that triggered the law were based on people who did not have objections serving gays as such, but profiting from a public act, a wedding. That is, they are discriminating not against people, but against an activity. Second there is already a twenty-five year tradition of jurisprudence interpreting the law narrowly. Third, it is not as if we are talking about the Jim Crow era where a mixture of local laws and ethos made normal life impossible for blacks, but a relatively rare occurrence. In fact it is probably so rare that it is unfortunate to have to make laws at all.
- Objection: Jesus would have photographed gay weddings, were he a photographer and not an itinerant rabbi. Therefore Christians should do as Jesus would have done, and if they don’t, they should have the full force of the law come down on their obstinate heads.
- Response: It is not the state’s job to decide WWJD. It is not yours either. Quakers are pacifists. I disagree with their religion, but I don’t want them thrown in jail over it because unlike you I am a decent human being.
- Objection: since it has been declared by Anthony Kennedy of the Supreme Court that from the dawn of human history until now the only reason why anybody could possibly have been against gay marriage is because they have black hateful, hatey hearts filled with hate, their only motive for not catering a gay wedding is (you guessed it) hate. As such, their opinion is not deserving of the protection of law.
- Response: who knows, maybe in your utter lack of moral imagination you are right about something, and the religious objection is really nothing other than an elaborate psychological disguise for mean ol’ hate. I don’t have the gift of reading souls. Neither do judges, the illustrious Anthony Kennedy excepted, which is why laws generally don’t take such things into account.
I’m sure there are other, more serious objections to be made. Honestly I’m not done thinking through this subject yet. But I think it is an important one: in 1993 the RFRA was assumed to be a right and just thing, signed into law by Bill Clinton, future first husband of the United States. Now it is the epitome of evil. So tomorrow, when you wake up to discover that the social winds have changed and that you too are now evil, it will be good to have some ideas of how to defend yourself against the angry hoards.
*Not just coercion of course. No political order can survive unless the majority of the people see the law as having some kind of moral authority. But the threat of violence is always present.
**When the US supreme court eliminated all meaningful state restriction on abortions in 1973, the only other nations with such “progressive” laws were the Soviet Union and Red China, paragons of the practice of human rights.