Religious Freedom or Freedom to Discriminate?

Dana Ettinger, JHU:

Indiana has been in the spotlight the past few weeks for its attempt to pass a version of the Religious Freedom Restoration Act. While not the first state to do so, it is the most recent and is gaining more press coverage than previous attempts. The text of the bill, SB 101, states that state and local government action may not burden the exercise of religion unless applying that burden is essential to furthering government interest. Basically, it protects religious business owners from government intervention in their business if they can prove the intervention would interfere with their free exercise of religion. On the surface, this seems harmless and very much in keeping with principle of free exercise of religion. However, many fear this gives religious business owners license to discriminate against customers and employees based on religious views, specifically against members of the LGBTQ community. Both sides of the aisle have been very vocal about their views, with conservatives lauding SB 101 as a victory for religious rights and freedoms and liberals decrying it as carte blanche for homophobic business practices and legalized discrimination. But what about libertarians?

Fiscally conservative and socially liberal, libertarians generally support minimal government interference in all facets of life. They believe the role of the government should be as restricted as possible, and that social change is not something the government has the capability nor the responsibility to manage. While there is an instinctive reaction to want the government to be the central agent of change, libertarians believe that it is distinctly unsuited to the task. There is a huge spectrum along which libertarians fall when determining how far to take these beliefs, but overall they see the purview of government responsibility as very limited. Preventing discrimination thus would fall to society as a group to manage rather than government mandates about hiring practices. Libertarians believe the market is perfectly capable of signaling to business owners who discriminate that their behavior is bad business – a perfect example is the owners of the pizza parlor in Indiana who, after publically announcing they would refuse to cater gay weddings, found their Yelp! page full of comments from disgruntled patrons warning others away. This would seem to indicate that the market is doing its job – potential patrons put off by the pizza parlor’s practices will take their business elsewhere, and unless the owners can attract enough people who share their views they will either run out of business or be forced to change their policies. This has been happening on a much larger scale as well. Companies are halting or delaying expansion into Indiana out of fear of backlash from consumers. Furthermore, in practice this only gives business owners a potential defense in discrimination lawsuits – it is still up to judges to determine the validity of the claim. Legally, this is a fairly straightforward case. Politically, on the other hand, this saga has turned out to be a nightmare for Republicans and anyone supporting it.

Legality or legitimacy aside, liberals and the media have done a very good job portraying it as homophobic and pro-discrimination, neither of which are things Republicans want to be associated going into the 2016 presidential elections. Given their history regarding marriage equality and LGBTQ rights, the GOP is already facing an uphill battle in that arena. Things like the Religious Freedom Restoration Act, regardless or intent, only serve to make the Republicans look bad in the eyes of that constituency and those who support them.

Ultimately, the extent of the impact of this kind of law is minimal. The Act in practice merely gives business owners a potential defense against discrimination lawsuits, and given that each suit will be presided over by individual judges, it will likely not work every time. On that front, the libertarians and conservatives can agree that a reduction in government interference in business has been won. However, the true extent of its impact will not be felt by customers and consumers but rather by politicians, specifically those in favor of passage and the governor who signs his approval. The political consequences of laws of this type will follow the Republicans into the 2016 presidential elections, when their records on LGBTQ and discrimination will become hot topics and good ammunition for the Democrats. The extent to which that has a practical effect remains to be seen.

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