Introduction
I'm writing a two part series in how to think about the new
Religious Freedom law discussions. The
first will cover the more practical considerations of "how to think
about" the laws and the situations that they are obviously
contemplating. The second post will
cover more "first principles" on First Amendment rights and history
to give some context.
The federal RFRA (Religious Freedom Restoration Act) was
passed in the wake of a 1993 case (Employment Division v. Smith), which upheld
the firing a Native American for failing a drug test due to religiously
motivated peyote smoking. Justice
Scalia, speaking for SCOTUS in Smith, said that generally applicable laws that
incidentally (as opposed to purposely) impair religious exercise are not
impacted by the 1st Amendment. The
states and the federal government can, but are not required to, make
exceptions. RFRA attempted to change this decision by making the government
have to have a compelling interest. This
was upheld in regard to the federal government, but states can do as they wish. About 20 states have passed laws similar in
some ways.
The more recent--and much more controversial--laws took a
much larger step and said that religious belief could be used as a defense in
civil matters, most importantly in denying service to some person or group
based on a religious belief. These laws
were very specifically targeted to allow Christians to deny service to
homosexuals -- a photographer should not be forced to shoot a gay wedding, nor
should a cake decorator be compelled to bake gay people cakes, and hotels
shouldn't be forced to host a gay wedding, and restaurant owners should not be
forced to let gay people in, and in general people shouldn't have to engage in
commerce with gay people if they don't want to.
The laws are much broader than that, though, and included a
possible religious exception to any lawsuit.
Any sincerely held religious belief, no matter how important to the
religion, applies. Broadly interpreted,
the federal law would say "I can ignore any federal law or regulation if
my religious belief says so and the government doesn't have a compelling
interest that's more important."
The more controversial proposals for state laws go further and suggest
that any legal matter, including laws affecting civil rights or contract or any
civil suit, can be defended against with a religious belief. That potential scope is boggling.
I'll get more into the depth of silliness those laws might
create, and how historically odd they are, in my next post. Here, let's talk about the values one might
consider.
Religion
What is a religion?
When many people think of religion, they often immediately assume their
own, and then, belatedly, they may consider other ones. In Arkansas, that means they think religion =
Christianity. But it doesn't,
legally. The problem is defining the
bounds of the term. If only one person
believes a religion, does it count? If
not, why not, and how big a group is required?
Does a belief in multiple gods count?
What about none? What if you
believe that all worldviews have a place, and try to embrace that notion? If you look at the prisoner cases, this is a
tough term to define. In my opinion, it
is almost tough enough that we punt.
Who can have a religion?
In most of the popular religions, there is a notion of being
"saved" and making "good" decisions based on an individual
moral code. People go to heaven or hell,
but computers and insects do not. Given
this distinction, does it make sense to apply the notion of
"religion" to a government-created entity like a corporation? If so, should entities like, for instance,
churches and mosques be given the same sorts of consideration as, say, Exxon
Mobile or Nike? Should we worry about
whether there are current or potential shareholders that might disagree (think
"closely held corporations")?
To me, a non-profit company organized around a religious notion -- like
the First Baptist Church of Little Rock -- has some claim to a religious dogma,
while a large for-profit company does not.
How sincerely do you have to believe it, and what must be
the source of that belief? If I think
that being gay is wrong, but my congregation says it is not and the text from
which I say I derive my belief contains many other ills that I blithely ignore,
does that matter? Who gets to decide? What level of sincerity is required, and what
is the metric for sincerity?
On the other hand, should I be forced into joining a
religious ceremony with which I disagree?
If I think it is sick and depraved to sacrifice a goat, but I offer
butcher services, can I tell the Satanist (or old-school Christian) no? Can I be made to officiate a polygamist
wedding if I'm licensed as a minister in Arkansas? (Should we be licensing ministers,
anyway?) Should I have to take photos
and provide the proofs on my website of a ceremony that I find abhorrent and
against God's plan? Should I have to
remove a baby boy's foreskin if I'm a doctor?
What about similar but more destructive anatomic changes to a girl? I think there are different answers to these
questions, but being forced to personally join an elective religious ceremony
does seem to cross a line.
Commerce
Whether you think commerce is different is a big piece of
this puzzle. Is it okay to treat
activities in commerce different from other activities? Can we mandate that a food maker reveal
ingredients? Can we say that lying about
what your product does is illegal? Can
we limit the fields a company can go in?
Can we forgive economic sins? Can
we have laws that say corporations, by their nature, are greedy, and directors
of those corporations must take improved shareholder profit as the overriding
goal of a company? Can we say that, if
you open up your doors to the general public, you cannot deny service based on
race, or sex, or religion?
To me, this is an easy one.
Yes, we can, and virtually everyone agrees. The extent to which we can may be influenced
by the special gifts given to companies by government (existence, limited
liability, tax advantages, etc.); the transaction costs of individuals needing
to discover which organizations will serve them; the liberty cost in mandating
people must open their doors to everyone regardless of status; collateral
market costs if discriminatory practices are allowed (think Walmart warning
Arkansas); the historical reasons for preventing discrimination against certain
groups; etc. This gives a lot of nobs
for a reasonable debate.
Another aspect of commerce to consider is what the product
or service being sold represents. On one
extreme, you have a completely standardized widget sold anonymously over the
internet. At the other extreme you have
a completely customized service requiring intimate personal involvement and the
reputation of the service provider. The
more customized, intimate, and branded a product or service, it seems the more
likely there would be reason to have this value weigh more heavily.
We should also consider the impact to the market. Is this the sole provider of a good or
service in the area? For instance, if
you live in New York City and need to buy a bag of Doritos, you can probably
find another provider more easily than if you live in Scott, Arkansas. The amount of customization of the service
matters here, too -- there is only one hotel that sits on this spot, only one
restaurant with this chef, etc.
And we also might consider whether allowing certain types of
discrimination devalues a community.
Arkansas was replete with "sun down towns" for the first half
of the twentieth century. Harrison,
Arkansas, still has to fight the stigma attached with its heavy KKK presence. Walmart and Acxiom did not want to subject
their customers and employees to possibly discriminatory behavior. These are non-trivial concerns.
Free speech and the right to associate
When is it okay to force someone to speak to someone else,
such as is normally required in commercial interactions? What about to be with people they don't
like? Should I have to let someone
wearing a Klan outfit into my store?
Someone wearing a shirt that says, "White people are evil"?
What if I'm a worker?
Does my employment status mean that I should act as if I believe what my
employer believes? Do I have to refuse
gay people service?
The competing values here are societal tolerance and a
smoothly functioning economy versus individual liberty. Most right-wing respondents would say this is
easy: individual liberty wins, but
employers can tell their employees what to do because this is a clear contract
and the employer can walk out at any time.
On the other side, the argument is that choosing to engage in commerce
that is open to the general public means that you cannot then exclude based on
someone's status. If they come into your
store and are not acting like jerks, you cannot exclude them because you think
they shouldn't be black or white, gay or straight, young or old, etc. You made your choice to let them in when you
opened your doors.
Conclusion
I think that religion is really tough to define, almost to
the point of being undefinable. Because
our 1st Amendment makes us do so, though, I think we have to do so in a way
that does not preference one religion (i.e., Christianity) over others. We also cannot actively persecute religious
belief. This means, in my opinion, that
we write laws that are generally applicable, and then we sometimes make
specific statutory exceptions for items that strongly impact a group yet result
in little societal harm. This can be
peyote, or conscientious objection, or ...
We need to keep in mind that all laws apply to everyone, however, and
nobody gets to use his conscience to be exempt from a generally applicable law
-- we would cease to be a government of laws, at that point.
When you open your doors to the general public, you should
open them to all people, regardless of status.
That keeps the wheels of commerce rolling smoothly, and it avoids
Woolworth-esque scenes. That said, I
think there is room for exceptions based on how personalized and branded a
service is, especially if the service can be reasonably gathered
elsewhere. I also think that being an
active participant in someone else's religious ceremony is certainly
problematic. The only problem would be
defining what "religious ceremony" meant, but that seems a bit easier
than defining religion itself.
I also think there is room for exceptions based on
government grants of privileges. Maybe
sole proprietors or partners who do not use a corporate liability shield could
be granted some exemptions, but if they choose to be sheltered by the
government, they choose to follow the normal rules.
Oh, and I wouldn't mind seeing another type of
experiment: Allowing businesses to
discriminate on status, but requiring those statuses to be publicly viewable on
some website, and also requiring those exclusions to be prominently displayed
on all entrances. This would be a bit
problematic with the 1st Amendment, but probably not as much as requiring
entrance. I suspect that most businesses
would decide not to opt in because of the terrible press this transparency would
bring. It could certainly go in other
directions, though, which is why I think it would be an interesting
experiment. I prefer experiments that
preference liberty, when possible, even hypocritical liberty like "Jesus
wants me to be a single-sin bigot," so this sort of law would be high on
my preference list, if it was successful.
(My next installment will cover more first principles and
constitutional history.)
Thoughts?
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