The Religious Freedom Restoration Act (RFRA), championed by Congressional Republicans and conservative commentators, represents an important counter-maneuver to the oppression wrought by the cultural left. Of course, RFRA shouldn’t be necessary, and wouldn’t be if our culture still respected the freedoms enshrined in our constitution and national traditions. It’s dubious that RFRA carves out liberties defined by religious belief over those that should be protected by the equally fundamental American protections of free speech, free association, and property rights.
RFRA allows a private actor—a citizen or organization—to refuse to comply with a law by complaining that the law substantially burdens his religious belief. The law requires courts to use a balancing test in weighing the law’s purpose versus the individual’s belief.
The First Amendment is pretty absolute, subject to a few well-defined exceptions and rarely subject to any balancing tests. It is a profound violation of American notions of liberty to insist that property rights can only be asserted by virtue of religious belief, and subject to a balancing test at that.
In the archetypal scenario that has necessitated RFRA and similar legislative pursuits in the last few years, a baker refuses to decorate a cake for a gay wedding, in violation of a local ordinance or state law barring discrimination against homosexuals. RFRA would allow the baker to potentially avoid sanction, but would not invalidate the underlying law that he had violated.
Aside from the question of whether refusing to decorate a cake with certain content actually amounts to discrimination against a defined class of people, it seems disastrous for the right to concede the merits of such anti-discrimination laws—or of continually expanding the classes of people covered by them—and leave the private citizen with no recourse other than to grasp onto his religious belief to carve out an exception against the state expropriating his property rights.
That the baker cannot assert a defense of “I don’t like gay people” or “This message doesn’t comport with my taste” or “I don’t want to promote the institution of gay ‘marriage'”—nor apparently “I don’t like your attitude” or “I don’t feel like serving you” or “It’s none of your damn business why I don’t want to make your cake”—represents a profound erosion of freedom. Moreover, forcing him to publicly assert his religiosity and articulate the details of how that impacts his decisions on how to earn a living–and then subjecting that reasoning to analysis by a court—represents a troubling intrusion into the baker’s freedom of conscience.
Businesses in America used to have signs saying, “We reserve the right to refuse service to anyone,” but now that statement has no practical implication. Perhaps there is a new market for signs that say, “We reserve the right to refuse service to anyone, except racial or ethnic minorities, women, non-Christians, people with disabilities in some cases, military veterans, and maybe homosexuals or ‘transgendered’ people, depending on which state, county, and city we are located in.”
Although people who value individual liberty have always opposed anti-discrimination litigation on principled grounds, they have been lonely in doing so. We have essentially lost the argument, beginning with Barry Goldwater’s prescient but futile opposition to the Civil Rights Act of 1964.
But recent debates leading to such laws as the RFRA have taken us even further in the direction of collectivism. Both arch-leftist Sally Kohn—via one of the stupidest articles ever written—and supposed conservative John Kasich—in a more folksy appeal to common sense—have made what turn out to be similar arguments to defend laws against discrimination, asserting that simply existing in the public sphere requires one to not discriminate. Although their arguments advance the same concept of “public accommodation” that has prevailed since the civil rights era, they go further in advancing a profound misconcepti0n of what liberty is. (Their arguments are little different than defending a law prohibiting people yelling in the public square to criticize the government by saying, We have freedom of speech in this country; you are free to say whatever you want in the privacy of your own home, but once you enter a public space, the state has the right to restrict what you say.)
We get it: true freedom of association and property rights are basically dead in this country, and have been for decades. And we get that asserting religious freedom may be good politics as a rear-guard action to restore some freedom of conscience in some circumstances. But the right is not doing the culture any favor by rushing past some core American values to imply that the only people who deserve liberty are those who can claim a religious basis for it.