Indiana

Much to ponder about the ongoing furor involving Indiana's Republican governor Mike Pence, who recently signed into law a "religious-freedom restoration" bill (also known as the "religious-objections bill," or Indiana Senate Bill 101—read the digest at the link) that makes it illegal for "a governmental entity" to "substantially [burden] a person's exercise of religion." In practical terms, this could mean that a bakery run by people with certain religious convictions would have the right to refuse service to, say, a gay couple requesting a gay-themed wedding cake (e.g., two plastic men standing atop the cake instead of a man and a woman).

I have no legal background, so I'm in the dark regarding the legal implications of such a law, but here are some observations gathered from online: first, opponents of the law argue that it promotes bigotry and discrimination. Second, supporters of the law see it as a blow in favor of the exercise of religious freedom. Third, Indiana is the 20th state to enact religious-freedom legislation, so such laws exist in almost half the country. Fourth, a strong "#BoycottIndiana" hashtag movement has grown on Twitter; whether this will actually translate into significant loss of business for Indiana has yet to be seen. Fifth, one conservative reply to #BoycottIndiana has been to note that protestors should also boycott the other nineteen states with similar laws. The point, I gather, is to show that the current protests are no more than a flash in the pan, a far cry from a serious effort to enact justice across the land.

Readers of this blog know that I'm all for things like gay marriage. I see homosexuality as no more moral an issue than that of left-handedness—a condition that was also once stigmatized. I'm left-handed, and not by choice. I'm heterosexual—also not by choice. As I've argued in the past, one's sexual orientation is about as moral as the question of whether one likes onions or no onions on one's pizza. I prefer my pizza onion-free; does this mean I should condemn onion-lovers to hell for their preference? I put zero stock in scriptural arguments against homosexuality. I acknowledge that anti-homosexual scriptural passages exist, but I see no reason to give them any weight: the ancient scriptures were written by people trapped in a particular time and place; much of what they wrote has faded to irrelevance in the face of modernity and progress. Furthermore, people have always picked and chosen when they interpret scripture; hermeneutics is inevitable. Islam needs to strip away the unenlightened elements in its scripture, doctrine, and practice; why should Christianity be any different (if anything, Christianity has gone much further down that road than Islam has!)? Religious traditions should and do change with the times.

I don't subscribe to slippery-slope arguments such as "If you let gays marry, then men will begin marrying sheep, dogs, and their sisters." It's easy to draw a civilized, bright-line distinction when it comes to marriage ethics: marriage is a lifetime commitment between and/or among two or more consenting, non-related adults. There—was that so hard? Note that the words "consenting" and "adult" imply "people capable of making weighty, rational, uncoerced choices." That excludes children and animals. The phrase "non-related" excludes the possibility of incest. And the phrase "or more" allows for polygamy or for Heinlein-style "circle" marriages involving more than two people of any combination of sexes, as portrayed in Heinlein's novel Friday... if that's how you swing. Gay marriage would be safe and kosher within the boundaries I've described—boundaries that I think are moral because they respect human freedom, adult choice, and the ability to conduct one's personal life however one likes, without worrying about the prying eyes of government. If anything, I think my definition of marriage should be embraced by conservatives, who often claim to want less, not more, government intrusion in their lives. My formulation of the concept of marriage is a libertarian one: live and let live—and, sexually speaking, let people do whatever the hell they want in private as long as they're not violating each other's human rights. What's not to love?

That said, I respect the right of a church to reject marrying a gay couple. This is precisely because I do respect freedom of religious practice. Although I personally see scripturally based anti-homosexual attitudes as bigoted, I understand that it's possible for certain people to arrive at their convictions through entirely rational and doxastic processes. For this reason, I can see why a given church might exercise its corporate freedom to say no to a gay couple desiring to get married on its property. The couple can just go and find another, more religiously liberal church, if a church wedding is what they want.

As for the question of whether gay marriage is a states'-rights issue... I used to be a federalist, but it was conservative philosophers like Keith Burgess-Jackson who pushed me to concede that, if a gay couple were to get married in one state, then through the "full faith and credit clause" of the US Constitution, their marriage would have to be recognized in all fifty US states. Gay marriage therefore cannot be merely a states'-rights issue; either gay marriage is legal in all fifty states, or it's legal in none.

What confuses me—and this is where my lack of a legal background becomes a problem—is what to do about businesses that wish to refuse services to certain clientele based on religious grounds. I'm not talking about the owner of Chick-fil-A: he might be for "traditional" heterosexual marriage, but he's never refused to serve sandwiches to gay folks, as far as I know. I'm talking more about this wedding-cake situation that's been in the news: can a business legitimately describe itself as a "religious business," and if so, does it enjoy religious-practice rights similar to those enjoyed by a church? Is a "religious" bakery's refusal to make a gay-themed wedding cake the same as a church's refusal, on theological grounds, to perform a wedding on its property? I honestly don't know the answer to this question, and what's more, I'm not sure whether the answer is a legal one, a moral one, or a religious one. Were I a betting man, I suppose I'd bet on legal, since we're talking about a business, and thus talking about money, goods, and services.

But what if it's not so much a question of a religious business, per se, as it is a question of the practice/expression of one's private religious convictions? In the wedding-cake example,* I suppose the bakers could argue that being forced to make a gay-themed wedding cake would violate their personal rights to practice their religion as they saw fit.

It seems to me that this whole situation would be much clearer if private businesses made their employees sign agreements waiving their rights to make religion-based objections regarding the services the business provides, e.g., "When you work for Crystal's Bakery, you understand that you might end up serving clientele who stand in violation of your personal religious precepts. You agree that, as long as you work for Crystal's Bakery, your own moral convictions will not take precedence when it comes to service: all clients will be served, without distinction, prejudice, or discrimination."

In fairness, it should be noted that many conservatives on Twitter, even as I write this blog post, are arguing that Indiana Senate Bill 101 contains no language in it that would permit the sort of discrimination that occurred in the wedding-cake incident. Governor Pence himself is on record as saying that, had he thought the bill supported any sort of discrimination, he would have vetoed it. Obviously, the skeptics are roundly mocking this claim.

I suspect that, far more than any specific legal moves, the tides of history will move the country one way or another: either there will be more states adding religious-freedom laws to their books, or gay-rights activists will win the day, and such laws will eventually be repealed. There's also the market to consider: if one bakery can be shut down by protests and boycotts, others can, too, and Adam Smith's invisible hand will have done its work. The nice thing about free societies is that freedom can be expressed in a variety of ways: if not by legislation, then certainly by voting with one's feet—and with one's wallet.

ADDENDUM: this National Review article (the Review is a conservative rag) might be interpreted as a rebuttal to my blog post. It's worth a read, as is this Federalist article.

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*In case you're wondering, I'm referring to an Indiana-based bakery called 111 Cakery (pronounced "one-eleven cakery"), which originally caused an uproar when it refused service to a gay man who had requested a cake for a "commitment ceremony." 111 Cakery has since closed, despite insisting that its business had continued to be profitable even after the uproar and protests began.


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