In light of the passage of Indiana’s Religious Freedom Restoration Act and the ensuing controversy, it is well worth discussing whether anti-discrimination laws can ever be justified. But in such a discussion, we must distinguish between discriminating against a person and refusing to endorse an event.
Any law that restricts what private citizens can and cannot do with their own property should be treated with great caution. The libertarian position takes this to the extreme, and says a private business owner has the right to do what he wants with his own property. We have no right to coerce him to offer his services to anyone, because it would interfere with his natural rights. In fact, the only laws that can ever be justified are laws that protect people’s natural rights from infringement.
My position, on the other hand, is that the common end of political society is a milieu of conditions in which men are best able to accomplish their ends. The sphere of political authority extends to what is necessary to create and sustain an environment in which men are best and most freely able to flourish. This includes legislation about actions that significantly affect public health or morale. Thus, there is a place for legislation dealing with noise pollution, zoning, pornography, and discrimination. But all such legislation should be made and enforced with an eye towards protecting, as much as possible, people’s freedom to choose their own plans and actions. These laws are just, but should be used sparingly.
Libertarianism rests on individualistic premises that I don’t buy. If taken consistently, it becomes difficult to justify taxation, even for the purpose of defense and law enforcement, and impossible to justify taxation for any other purpose. Josiah Lippincott is not espousing libertarianism, because he allows for anti-discrimination laws as long as they only deal with “common carriers.” In fact, his position is similar to mine. Anti-discrimination laws can in principle be justified, but before passing such a law, it is always important to weigh the implications. Is preventing discrimination in a specific case so important that it is worth coercing a business owner to act in a certain way? Fifty years ago, the answer was yes, because widespread discrimination splintered society into two unequal classes, and it needed to be ended (though all such laws should have come from state governments). Right now, no such laws are needed, because there is no widespread discrimination against LGBT people. We don’t see labeled drinking fountains, and schools are not segregated by sexual preference. However, a law against discrimination can, in principle, be a just law, and not just for “common carriers,” because there is no real difference between a privately-owned hotel and a privately-owned restaurant. Which does more harm: One hotel clerk refusing to open his rooms up to blacks (who can go across the street or drive to the next exit) or a city full of segregation at every level, from restaurants to bathrooms? Lippincott would make the former illegal while refusing to pass laws dealing with the second. I’ve never heard the Founders talk about a fundamental “right to travel” that would justify such a distinction.
A much more important distinction to emphasize is between discriminating against a type of person and refusing to endorse an event. A Christian or Muslim baker who refuses to design a cake that celebrates a gay wedding would happily design birthday cakes for LGBT customers. He is therefore not discriminating on the basis of sexual orientation. A law requiring him to make the wedding cake would be unjust because refusing to support personally an event does not splinter society. This is not just about religious objections: An avid Colts fan should not turn Patriots fans away from his restaurant, but he should have the right to refuse to make a cake shaped like the Patriots’ logo for a pep rally. Sadly, Gov. Mike Pence has not articulated this distinction well.
The amendment to Indiana’s RFRA says that the law cannot be used to defend discrimination based on sexual orientation, but it does not mention refusal to support an event. Good lawyers and judges should understand this distinction as they interpret the law. Practically, I can’t promise they will, but we must make the distinction clear if we want to persuade public opinion. Lippincott is right that some laws are unjust regardless of whether the affected party has religious objections, but he draws the distinction in the wrong place.
