Social Change Cuts in Favor of Protecting Religious Freedom

man showing fist to his big boss

How should social change affect how we think about laws on religious freedom?  On Sunday Governor Mike Pence defended his state’s religious freedom  law, noting that the President had voted for a similar law protecting religious freedom twenty years previously when he was an Illinois State Senator. Josh Earnest, the White House spokesman responded: “If you have to go back two decades to justify what you’re doing today, it may raise questions.” It is hard to come up with a more perfect encapsulation of the progressive mindset: even a two decades-old position carries no epistemic weight with the present.

But, setting aside the question of whether some kind of religious freedom act is ultimately a good idea, the balance in its favor is stronger today than it was two decades ago even in the context of the paradigmatic disputes being discussed.  Take, for instance, the case of the photographer who does not want to take pictures at a celebration of a same-sex relationship because she believes that celebrating same-sex relationships promotes sin. Should the government be able to fine her, if she does not want to provide services, or should a religious freedom law protect her decision motivated by sincere religious belief?

Two decades ago, there were many more opponents of same-sex relationships than there are today, and it may well have been hard to find a photographer willing to take that celebratory picture. But today support for same-sex relationships is ever growing, even within religious denominations that previously believed such relationships sinful.

The changing social sentiment also puts more economic pressure on merchants religiously opposed to same-sex celebrations. Gary Becker showed that a taste for discrimination might lead businesses to shun some customers, if they thought that they could gain more profits by indulging this taste. But today refusing to do business with gays and lesbians for any reason is very bad for business in general. We have seen businesses threatened and CEOs fired for expressions of opposition to same-sex marriage. Thus, as a general matter it will be far easier today to find photographers and other providers eager to offer services at same-sex events than it was 20 years ago.

This opprobrium also provides a more effective screen for the sincerity of religious beliefs: people stand to lose a lot more today by expressing them in this context.

In short, given the force of voluntary social norms there is less functional need for coercive laws that penalize refusals to provide services for same-sex celebrations  and less reason for concern about the exceptions to those laws that a religious freedom law would provide. The New York Times distinguishes the past operation of the federal religious freedom law by complaining that while it once protected religious minorities it currently protects conservative Christians. But conservative Christians now are a religious minority and a dwindling one at that.

Now there are other arguments against religious freedom legislation, state and federal, but social changes in the last two decades show that that complaints recently expressed about such protections are less pragmatic than ideological– less about assuring gays and lesbians access to services and more about making sure that the state can penalize minorities for acting on religious beliefs that the majority abominates.

Reader Discussion

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on April 02, 2015 at 15:18:53 pm

I’d like to find ways to accommodate people’s beliefs – even when they favor undue discrimination – provided we can avoid unduly burdening members of protected classes. I know Reno bridles at comparisons to racist policies. Nevertheless, if we could find policies that would make a reasonable accommodation to racists, presumably they would also provide a reasonable accommodation to religion, too. Remember, racists may defend their views on religious grounds, so we need to design policies with that scenario in mind. The point is not that religious people are as evil as racists, or that racists are as virtuous as religious people, but that we need to design policies to apply to everyone – evil, virtuous, and in-between.

Consider my Market Power Proposal: When accused of unlawful discrimination, let defendants offer an affirmative defense that they informed the plaintiff where nearby she could secure equal or better housing/employment/accommodation at a comparable price/wage. In policy would be designed to punish undue discrimination only where the discrimination deprived a member of a protected class of housing/employment/accommodation at the best available terms, while letting "harmless discrimination" (discussed below) go free.

1. True, defendants could face a challenging evidentiary burden. I’m not sure how a plaintiff could show that a substitute employment situation was really comparable. (Unless that plaintiff was the employer in the substitute situation? “I won’t hire you as a nurse in the Catholic nursing home, but I’ll hire you for my other nursing home….”)

But with respect to many public accommodations, this remedy would seem workable. Proprietors could even post a sign: “Due to our religious commitments, we regret that we must decline to serve homosexuals here. But the neighboring facility will be happy to serve you; please take a flyer with directions and a coupon – with our complements!”

2. Bigger problem: Even "harmless discrimination" may injure a plainiff's dignity, and my proposed remedy would do nothing to redress such harms. Dignity harms were a big focus on the Civil Rights Act of 1964 – and feature prominently in Justice Kennedy's reasoning.

That said, I have difficulty reconciling a) a proprietor’s free speech right to express disapproval, and b) the goal of shielding a member of a protected class from hearing that disapproval. Title II seems to impose a time/place/manner restriction on how proprietors express disapproval to potential tenants/employees/customers. Ultimately I wonder if free speech should trump, even in matters of housing/employment/public accommodation.

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Image of nobody.really
on April 02, 2015 at 15:28:48 pm

Oh, and when I refer to Reno, I refer to this post.

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Image of nobody.really
on April 02, 2015 at 16:45:57 pm


Really good post. You appear to be as conflicted as many of us on this matter.

I think in a very real sense McGinnis is correct in asserting that there is a greater need for this RFRA protection NOW. By the same token, it may be that in the future, there may very well be no need for RFRA as more and more folks appear to be more accepting (well at least less concerned) about SSM.
And yet - the issue remains. What am I permitted to say / believe? as a matter of law. The very question is troubling to me. Must I now be *licensed* to hold certain beliefs? express certain thoughts? (Clearly, this is argument by exaggeration on my part - but it is illustrative).
I tend to agree with you regarding speech trumping other considerations. Perhaps, if we were to examine the concept of dignity - or more precisely, examine what role government ought to have in the provision of dignity to the individual citizen, we may arrive at a solution.

Does government have a responsibility to assure that an individual does not suffer a loss of dignity, however induced? I think not. Barring the infliction of physical pain, a rather significant indignity, the government should remain on the sidelines, indeed, it should refuse to take notice of any perceived indignity. To do otherwise, must, of necessity, involve the government in the intimate details of each citizens life. Dignity is not susceptible to a universally recognized definition; it is fluid, amorphous; and as such best left to the various social interactions amongst people to sort out. More than anything else, dignity is self created / supported / reinforced.

It is true that a gay person may feel slighted by not being able to purchase a wedding cake at the most convenient location and may suffer a loss of dignity as a result. One option is to bemoan the loss of dignity attendant upon the (non-) transaction and sue. another option, one calling for an old fashioned attribute, grace, would be to simply move on to the next store, while reinforcing one's own sense of dignity by taking the high road and accepting that some people are either "stupid, economically foolish, or simply believe other than you do" - and accepting that they too are entitled to possess and act upon a belief system of their choosing.

Let us suppose that I own a Kosher or Halal food service company. You ask me to cater a function (any function) and you desire pork tenderloin. I refuse to serve you. Do you feel a loss of dignity? Do you actually suffer a loss of dignity? Suppose, I also proclaim that anyone who consumes pork is sinful? What then? My position is religiously based (though clearly not scientifically). Yet, ultimately, it does not matter. I am refusing you service. I have a reason to do so.
As cruel as it may sound, I have a right to do so insofar as I am capable of holding any belief and expressing that belief. Just as you have a right to take your business elsewhere and walk away believing that I am mistaken.
Perhaps, we should all strive to exercise a bit more of the social graces and concern ourselves with our own conceptions of dignity. Apologies to the Apostle: "Act as if you have dignity, and it shall be given to you." - even if some place obstacles in your way.

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Image of gabe
on April 02, 2015 at 19:32:19 pm

Over $255,000 Raised for Memories Pizza After Threats Force Owners into Hiding


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Image of Steve
on April 03, 2015 at 00:30:11 am

[…] John McGinnis addresses the “minority” religion […]

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Image of RFRA, “Minority Religions,” and “Collective Liberty” | Josh Blackman's Blog
RFRA, “Minority Religions,” and “Collective Liberty” | Josh Blackman's Blog
on April 03, 2015 at 10:25:56 am

We are, of course, observing the "functions" of Sate and Commonwealth governments.

Why should all these matters be functions of those governments; or, for provisions allowing persons to act through using those functions?

People may not so much "support" particular conduct as not oppose it; or to feel threatened to the extent to require common efforts through governments for protection.

But, has it become a function of governments to "support" any particular forms of conduct - if so, why?

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Image of R Richard Schweitzer
R Richard Schweitzer
on April 03, 2015 at 10:39:43 am


So, is this a case of an obligation (to treat one another in a certain manner?) being transformed into a *right* enforced by the government to have my preference recognized by another party.

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Image of gabe
on April 05, 2015 at 16:27:54 pm

John, I have taken two of your sentences and combined them into one – for discussion.
“… (C)onservative Christians now are a religious minority and a dwindling one at that”... “… (That) the state can penalize minorities for acting on religious beliefs (/right) that the majority abominates...”
My discussion is certainly not against your post. Your post is thought provoking. (I am not so sure that I can agree that religious rights are in the minority.)
I would like to address that which is a religious right and that which is a civil right. I believe in the Constitutional laws concerning both.
The First Amendment’s “or prohibit the free exercise” of religion -- is the law of the land. The federal government, all branches and offices, are prohibited from making a law that prohibits the free exercise” of religion. The free exercise of religion is not open to “discrimination”, or to inhibit it. State law, relating to religion, is in every State’s Constitution -- which is, “any Thing in the Constitution or Laws of any State not Contrary” to the Constitution.
Civil rights are presently contained in enumerated laws of the Constitution. (They are all visible to the reader.) Civil rights, that we have witnessed over the years, as enumerated Constitution law, has been accomplished though the Amendment Process.
The present civil rights of the gay community insist that the “free exercise of religion” discriminates against their civil rights. This, of course, -- is -- the difference between the religious and the civil.
Until the Constitution is changed through the amendment process – the “free exercise” of religion remains the law of the land. Here, again, the pending USSC court case regarding a gay marriage right should be left to the States, and the people to decide. If the USSC decides otherwise – it is a usurpation of the Constitution.
The quest of the liberal professionals is not only to change the free exercise of religion – but to extinguish it completely.
Respectfully, John
(Facebook, author of The Tribute.)

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Image of John E. Jenkins
John E. Jenkins
on April 06, 2015 at 08:46:28 am

[…] Social Change Cuts in Favor of Protecting Religious Freedom […]

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Don’t Print the Narrative - Freedom's Floodgates

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