On “Religious Freedom” in the American Marketplace
The American marketplace is governed by certain “rules of the road” that ensure that businesses are all held to the same standards and that consumers have full and equal access to goods and services. These rules are universally applicable and deeply woven into our culture. Americans fully comprehend that in the business sphere, the only color that is important is green. And while businesses are free to determine how they comport their business, they are not free to do so in a way that patently disadvantages the marketplace generally or any segment of consumers within it. We know that discrimination based on race or gender harms the marketplace and harms consumers. So too, does discrimination based on sexual orientation or nationality or religion. Putting aside for a moment the profoundly hurtful disrespect shown to a person who is denied service on such a basis, the “pick and choose who is worthy” model of business operations creates too much uncertainty and dissension in the marketplace. The local Wal-Mart is no place to engage in a sanctimonious judgment of a customer because he or she is gay, bi-racial, divorced, wearing polyester, or an atheist. Business owners have no legitimate reason to insert themselves in their customer’s lives in such a fashion. If a person’s religious beliefs so permeate the operations of his business that he cannot abide by the basic “rules of the road” — that all customers be treated fairly so long as they can pay for items or services — then he ought not operate a business. Rather, he is better suited to run a club, clique or church. Businesses are not places to engage primarily in religious expression. They are places to make money and to feed our economic machine. Gay money is just as green as straight money. It should be accepted everywhere. Governor Pence’s defense of Indiana’s ill-conceived law amounts to no more than verbal shadow boxing. He claims that the law merely gives the highest level of judicial scrutiny to laws that impose on religious beliefs. The question is “What laws, specifically, are we talking about here?” We are talking about laws that prohibit discrimination. So, if you pass a law that says that anti-discrimination provisions can be challenged based on religious belief AND that courts must weight the religious belief higher than the anti- discrimination provision (which is what RFRA does), then what you are doing is giving those business owners a pass, an exemption from having to comply with those anti- discrimination provisions. That is what the Indiana law does, and that is precisely what it was intended to do.
For example, if the Civil Rights Act prohibits discrimination based on race, an Indianan who is sued for race discrimination could raise a defense under Indiana’s new law asserting that the Civil Rights Act infringes on his religious belief, and thus that he should not be subject to the Act or liable for its violation. Contrary to Governor Pence’s repeated assertion that the law does not permit discrimination, the intention of the law was to ensure that businesses CAN legally evade anti-discrimination provisions. Which to most folks amounts to the same thing. While it is telling that the Indiana law (and the version in Arkansas) needed amendment to make clear that businesses could not discriminate in the provision of goods and services to the LGBT community, the supposed “fix” swallows the law itself. The whole point of passing the law was to allow businesses, like the now-defunct Memories Pizza, the right to refuse to cater gay weddings (as if any self-respecting gay couple would ever cater a wedding with pizza). So if the fix prevents this sort of discrimination, doesn’t it make the entire law moot? The answer is “not exactly,” because the law still allows businesses to discriminate in employment and contract, and many other ways. The right thing to do is to repeal the whole law and move on. America has sent a very clear message to Arizona in 2013, and now to Indiana and Arkansas. Discrimination goes against the grain and it is not who we are. No matter whether such discrimination is based on personal bias or religious belief, there is no room for it in the American marketplace.