There is no better topic in the current news cycle to discuss tolerance than that of Indiana’s and Arkansas’ Religious Freedom Rights Acts (RFRA). For over a month, stories have been popping up in my news feed from blogs, traditional media sites, and buzz is all over social media—which is an incredibly long time, in a national news cycle, for a state bill to get so much publicity! So, the question I want to look into is:
Does this bill promote tolerance?
March 2015, Indiana’s Governor, Mike Pence, and the General Assembly passed a law that mirrored the federal RFRA passed by President Bill Clinton in 1993. Soon after Indiana, and during the peak of the national backlash to their law, Arkansas passed a similar RFRA to the Indiana version. Both of which had parts that differed from the federal bill.
This federal bill, passed in 1993, was hailed by liberals as a positive step forward in protections against discrimination. It followed a Supreme Court case, Oregon v. Smith, in which two Native American men were fired and were refused federal unemployment benefits when their urine tests came back positive for Peyote. Peyote is an illegal hallucinogenic drug, but it is also used by members of the Native American Church for religious reasons.
In the federal case, it is clear that tolerance of minority religious practices was the goal of the RFRA. In the aftermath of Oregon v. Smith, The federal RFRA was made to protect religious worship. This kind of federal protection is definitely in line with the ideas of tolerance in a free society. But can we say the same thing about the state bill?
The State Bills
There is no question that most of the media’s buzz around these two RFRA bills are completely politicized (Indiana and Arkansas).
The left is completely disingenuous when they are claiming that this bill will lead to a Jim Crowe situation. That environment was mandated by government through segregation, ostracization, and a court and legal system that failed to act on and stop even the most egregious crimes against the black communities of the South.
The right is just as bad, though.
There is no doubt that these laws are an attempt to stop the rising tide of same-sex marriage rights and LGBTQ community rights. Indiana’s RFRA is especially politicized. In Judge Napolitano’s argument against the constitutionality of these RFRAs, he mentions that most states who adopted RFRAs also added sexual orientation to the list of traits for which discrimination is prohibited. Indiana and Arkansas did not, and at the same time they expanded the extent of protections in their RFRA further beyond all the others.
It may just be a coincidence that this is happening following a victory for the religious right in the Hobby Lobby Court Case and at the same time as the case before the Supreme Court on same-sex marriage. I think, however, that it is not and is instead an attempt to solidify in law moral beliefs based on religious doctrine disguised as religious rights over the growing movement for LGBTQ rights.
This bill goes against the principles of tolerance in a free society and the politicization around this bill has lead to a lot of yelling and talking past each other while no good solutions are being discussed in the national conversation.
So what is the solution?
Freedom of Association – But That Needs to be Nuanced
Today, our society has accepted that there are certain bases on which no one should discriminate: Race, color, gender, national origin, age, pregnancy, disabilities, religion, and sexual orientation. Nobody should have the right to post signs on their restaurant saying “No *insert your desired group here* allowed.”
There is also a common-law called “Implied Contract” that implies that by advertisement of openness (with an open sign o rjust being open for business), posting prices, and/or posting services you are implying openness and equal treatment to the public – to all. You cannot have exceptions that “Jews are charged twice as much” or “Mormons are not allowed to eat here.” These types of practices were only able to exist in the Jim Crowe South due to government laws that mandated these practices.
These RFRAs do not mandate discrimination, but no one should lie and say that it does not allow discrimination. Freedom of association means that individuals can choose who they interact with. This coupled with implied contract laws prevent individuals from being ostracized and creating second-class citizens while also preventing people from participating in events or situations that they truly do not agree with—Yes, like a same-sex wedding.
While these laws would not allow a store owner to refuse the sale of a pizza to a gay couple passing through, they do allow a company to be more selective in whom they contract their service out to. Here, is where this bill allows for discrimination and that is okay!
A Jewish person should not be forced by law to accept a contract to cater for a Neo-Nazi rally. Similarly, a gay man should not be forced by law to accept a contract to DJ or be a wedding planner for a Westboro Baptist Church wedding. In these situations, we need to be tolerant of the values held by these business owners. The government should not discriminate against people, but private action is different and needs to be treated different.
The main difference in these two scenarios (the wedding or the open restaurant) is the contract. For weddings, these are vendors and not businesses open to the public. Therefore, they can act differently and be more selective of who they work for.
Therefore, the solution is a balance and that is what any RFRA should be. It should protect against minority groups being ostracized while also protecting the individuals right to associate or dissociate. This balance is true tolerance: diversity of values and diversity in the community. You cannot have one without the other.