Indiana Gov. Mike Pence (R) vowed on Tuesday to "clarify and fix" the state's new Religious Freedom and Restoration Act, after major corporations threatened to boycott the state. These businesses — and many caterwauling progressives — claim that the law gives religiously inclined business owners a "license to discriminate," especially against gay customers.
But here's the thing: It would be deeply ironic if these national and multinational companies were able to wield their right to do business with whomever they pleased (in this case, by boycotting Indiana) in a way that took away the same right of Indiana businesses.
So what's to be done? Well, instead of tinkering with a perfectly legitimate law, Pence should simply strengthen gay rights.
Indiana is hardly the first state to embrace a law like this. The federal government — and 19 other states — already have RFRA laws on the books. The reason that the Hoosier State's law has produced what The Week's Michael Brendan Dougherty aptly dubbed a "national freak-out" is that these other laws mostly protect individuals seeking relief from government intrusions into their religious beliefs. For example, thanks to the federal RFRA, Uncle Sam can't deny unemployment benefits to American Indians who consume an illegal hallucinogen like peyote during religious ceremonies because that would unduly burden the right to the free exercise of their religion.
The Indiana law goes farther, and also applies to disputes between private parties. This "would allow people to discriminate against their neighbors," alleges Apple CEO Tim Cook, who has become a liberal hero by leading the corporate campaign to boycott Indiana.
This is a horrible caricature.
For starters, the Hoosier RFRA allows private individuals to discriminate only when that is absolutely necessary to avoid violating their core religious principles. A Christian restaurant owner's refusal to serve gays wouldn't fit the bill. However, a Jewish baker who refuses to make sacramental bread for a Catholic Mass or an Evangelical photographer who declines to photograph a gay wedding might — might, mind you, not will. That's because the law provides merely an argument for courts to weigh when evaluating discrimination complaints against such individuals — not an automatic defense. Judges could still decide — in fact have decided — that equal treatment is a compelling enough government interest that such discriminatory actions against gays are prohibited.
Now, there would be an argument to deny business owners even this little space to live by their spiritual sensibilities if the discriminated individuals couldn't obtain the services they needed elsewhere — as was the case with blacks in the Jim Crow South prior to the passage of the 1964 Civil Rights Act. But discrimination isn't as institutionalized now as it was then, especially against gays, who have gained rapid acceptance in recent years. If one establishment refuses to service gay customers, there are myriad others that will, imposing no severe hardship on them. To insist on being served by the few people whose beliefs would be violated seems more like a projection of power rather than a plea to secure legitimate rights.
Furthermore, if Cook merely boycotted Christian businesses whose beliefs he found abhorrent, it would be one thing. But what's truly obnoxious about his campaign is that he is using his right not to do business with Indiana, because it's doing something he disagrees with, to obtain a law that would deny Indiana businesses the same right not to do business with folks who they don’t agree with. This is simply intolerance masquerading as a crusade for justice and equality — a naked use of brute market power to legislate his views.
That said, the "national freak-out" against Indiana hasn't emerged in a vacuum. Gov. Pence unsuccessfully tried to outlaw gay marriages in Indiana, after all. So there is little reason for gays to trust him, notwithstanding his protestations that he finds discrimination against gays personally abhorrent. He might be right that Hoosier State residents are hospitable, tolerant, and inclusive people. Indiana is not known as a cornucopia of anti-gay sentiment and we don't hear too many stories about Hoosier businesses refusing to serve gay customers.
Still, the fact of the matter is that the state doesn't have a statute barring discrimination by sexual orientation or gender identity in housing, education, and public accommodation as it does by race. The Indianapolis Star, the state's leading newspaper, wrote a front-page editorial urging the governor to pass such a law. As Brooking Institute's Jonathan Rauch notes, this would go a long way toward dispelling the impression that Indiana is offering religious-minded businesses state protection for their lifestyle and values — but gays "zilch."
Such a law would offer gays standing protection against discrimination, but allow RFRA to carve out some exceptions for religious conscientious objectors, balancing both sides' interests. This is an accommodation worthy of a country founded to protect religious liberties and the promise of equal treatment that fair-minded people and corporations ought to appreciate.