Religious Freedom Bills

[Francisco Ferrer]

I think Ayn Rand's best writing is to be found in her essays and columns, especially those that apply philosophical principles to current issues. Rand's clear thinking cut through the fog that surrounded and confused many of the liberal-conservative battles of her time.

I only wish she were here to clarify what's at stake in the 2015 shouting match over religious freedom bills.

1. My guess is that she would first point out that the fundamental right being ignored is not to worship freely but to hold property, use it, and trade it without interference from others, particularly the government. Everyone, not just believers in a deity, has that right and should be free to discriminate, even when such discrimination is repugnant to others.

2. She would be quick to call out Republican governors Mike Pence and Asa Hutchinson for their cowardly rush to water down recently passed property rights protections, merely to appease special interest groups who ultimately care nothing about capitalism and true individualism.

3. I imagine she would also have strong words for corporate leaders hopping on the bandwagon to make "freedom from discrimination" more fundamental than the right to control one's own land and building and business.

There might be some commentators in the land speaking out in this way, but of course no one illuminated a topic quite like Ayn Rand.

[Derek McGowan]

I'm on the fence with this one. I think free lancers and small family/privately owned businesses should be able to serve who ever they choose* but then the line should be drawn at publicly owned companies. Also it would be ridiculous if a police man, firefighter, marine, or any emergency/ public safety person could discriminate based on personal beliefs.

* When it comes to businesses open to the general public such as restaurants it gets a bit tricky. The owners make a choice to have it open to the public, versus being a private club, therefore they should have to deal with the repercussions of that- being public outcry and protests if they then decide to discriminate.

[Selene]

I'm on the fence with this one. I think free lancers and small family/privately owned businesses should be able to serve who ever they choose* but then the line should be drawn at publicly owned companies. Also it would be ridiculous if a police man, firefighter, marine, or any emergency/ public safety person could discriminate based on personal beliefs.

* When it comes to businesses open to the general public such as restaurants it gets a bit tricky. The owners make a choice to have it open to the public, versus being a private club, therefore they should have to deal with the repercussions of that- being public outcry and protests if they then decide to discriminate.

Derek:

Are you talking about the Indiana statute, or, the Arkansas statute, or, the Federal one that President Clinton signed?

A...

[anthony]

I'm on the fence with this one. I think free lancers and small family/privately owned businesses should be able to serve who ever they choose* but then the line should be drawn at publicly owned companies. Also it would be ridiculous if a police man, firefighter, marine, or any emergency/ public safety person could discriminate based on personal beliefs.

* When it comes to businesses open to the general public such as restaurants it gets a bit tricky. The owners make a choice to have it open to the public, versus being a private club, therefore they should have to deal with the repercussions of that- being public outcry and protests if they then decide to discriminate.

Just watched a CNN report from Georgia, a female flower shop owner when asked about gays and Christian love, said "I can still love them, but I don't have to serve them". Ha! She's fully in the right (as far as it goes) and her choice should be protected. If one were gay, would you choose to do business with a florist who doesn't approve of you and your "lifestyle" anyway?

Me, I'd open a flower shop up the street, announcing that we happily decorate gay weddings. The market decides.

[Francisco Ferrer]

I'm on the fence with this one. I think free lancers and small family/privately owned businesses should be able to serve who ever they choose* but then the line should be drawn at publicly owned companies. Also it would be ridiculous if a police man, firefighter, marine, or any emergency/ public safety person could discriminate based on personal beliefs.

* When it comes to businesses open to the general public such as restaurants it gets a bit tricky. The owners make a choice to have it open to the public, versus being a private club, therefore they should have to deal with the repercussions of that- being public outcry and protests if they then decide to discriminate.

Why should the right to choose one's customers (in i.e. freedom of association) be restricted to "free lancers and small family/privately owned businesses." If property rights are legitimate on the small scale, they are just as legitimate on the large scale.

Instead of government intervention, why couldn't boycotts and "repercussions of . . . public outcry and protests" be the means that opponents of discrimination use to change a business owner's policy?

[Derek McGowan]

Responding on cell so I can't quite....

Selene, I was talking about the Indiana law.

Fransisco, yes public protest. I was saying that in the former case (free Lancet) I , personally, would be in the anti-protest crowd defending the business persons right to choose. While in the latter case I would be in the protest crowd....

I said I was on the fence

Something else has to be taken into account and that is licensing. If you have to have a food safety, fire safety, trade license to open a restaurant and the state government which grants it says that you have to jump through a number of hoops and one of them is your business being non-discrimatory then I guess the civil rights law could/would be held in that way.

Historically, as far as African-Americans go, discrimination didn't hurt so much in the segragated restaurants but in more structural businesses such as banks. It's fine to say that a small business can determine its customers based on color or sexual preference but if a banking industry can withhold the loans that people need for economic growth (especially when the credit scores are in order) that IS a problem. Or if housing that is on the market is suddenly not for sale when a gay couple arrive with cash in hand... I don't have think real estate brokers should be able to do that

[George H. Smith]

Many years ago (c. 1980) I was asked to give a brief introduction to libertarianism to a class at a community college in the LA south-central area. I kept it short, around 20 minutes, to leave time for Q&A. Although I didn't mention discrimination specifically, I did mention the importance of "freedom of voluntary association." The class consisted mainly of black students, and when I called for questions, a tough-looking fellow in the back row immediately raised his hand. He said (and I quote): "You mean if some honky don't want to serve me in his restaurant, he doesn't have to?"

I replied, "Let me put it this way. If you own a restaurant and some guys in white sheets and pointy hats walk in, I don't think you should have to serve them."

The guy thought for a second, nodded, and replied, "Oh, okay."

Ghs

[Brant Gaede]

He didn't know how to counter you, George, but he was thinking in principles which was much more important.

--Brant

the Civil Rights Act of 1965 was outside the loop of operative libertarian principles, but I'm glad it was passed into law in the same way Quakers in PA were against violence so appropriated money to fight the Indians by labeling it something else--the problem was few thought a principle was being violated, that it was all to the good, but a lot of not-good followed not because the principle was being violated but because the violation wasn't properly understood and accepted as an exception so it's been a waterfall of exceptions since including sundry and overt forms of welfare for that particular law was a form of welfare itself making it all logical for more of the same

[BaalChatzaf]

In a truly free social order, no one would be obligated by force of law or threat of physical harm to render services involuntarily.

That means no draft, no jury duty and the freedom not to service or do commerce with any other person Period. If one does not like the other's haircut, he will not be forced to render service to that person. Any divergence from this liberty is involuntary servitude or slavery.

Tomorrow night I and my family will gather around a table to remember how a people freed themselves from bondage and no longer submitted to coercion, no longer to labor for others out of fear of the whip, the chain, the club or the sword.

עֲבָדִים הָיִינוּ לְפַרְעֹה בְּמִצְרָיֽם עַתָּה - בְּנֵי חוֹרִין

Slaves were we to Pharo in Egypt -- Now we are free

[Derek McGowan]

Baal, it's not always as cut and dry as that. When people (indoctrinated by religion or culture and in command of major modern industries) form a group whose combined discrimination produces a tier of second class citizens it is actually the discriminated against who are the slaves, physically or otherwise

[Selene]

Here is the full text of the Indiana Law aka the Indiana “religious freedom” Act:

SENATE ENROLLED ACT No. 101

AN ACT to amend the Indiana Code concerning civil procedure.

Be it enacted by the General Assembly of the State of Indiana:

SECTION1.IC34-13-9 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:

Chapter 9. Religious Freedom Restoration

Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.

Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.

Sec. 3. (a) The following definitions apply throughout this section: (1) "Establishment Clause" refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) "Granting", used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. © Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.

Sec. 4. As used in this chapter, "demonstrates"means meets the burdens of going forward with the evidence and of persuasion.

Sec. 5. As used in this chapter, "exercise of religion" includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.

Sec. 6. As used in this chapter, "governmental entity" includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.

Sec. 7. As used in this chapter, "person" includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.

Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person's exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. © In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney's fees, to a person that prevails against the governmental entity under this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.

This is the act. It corrects a flaw in that it permits a party to assert as a valid cause of action that the government is placing an "undo burden," which is not easy to establish, e.g., high bar on their core religious beliefs.

I invite folks to find the discrimination in this shield law.

A...

http://www.indystar.com/

[anthony]

Baal, it's not always as cut and dry as that. When people (indoctrinated by religion or culture and in command of major modern industries) form a group whose combined discrimination produces a tier of second class citizens it is actually the discriminated against who are the slaves, physically or otherwise

Whatever "combined discrimination" is - a monopoly I suppose - it can't last, not without State's physical force.

A woman was holding a placard that read 'Freedom is not freedom to discriminate!'

Oh yes it is lady! Freedom is exactly that, an individual's unquestioned right to assess and choose for himself, regardless of how (ir)rational are his standards.

What we see is premised on the desire for Perfect man in a Perfect society in which everybody approves, appreciates, respects and trusts, everybody else - by dictate. But you can't force it, it's dependent on each person's rationality, that another person is an individual, who can't be judged by any superficial appearances and labels. Never in the human race are men going to 'love' each other indiscriminately. But try to force it, and you get a society of guilt-ridden hypocrites who can't deal with each other honestly and pridefully, who fake approval constantly.

IOW, you get the exact opposite society than which was intended. Excuse the rant, I see the downward plunge into polarizing suspicion and hatred very clearly in this South African society.

[BaalChatzaf]

Baal, it's not always as cut and dry as that. When people (indoctrinated by religion or culture and in command of major modern industries) form a group whose combined discrimination produces a tier of second class citizens it is actually the discriminated against who are the slaves, physically or otherwise

What is your opinion of involuntary servitude?

[Selene]

Derek:

Do you paint a picture that an individual gave you a commission for?

Not sure I phrased that correctly...lol

A...

[Derek McGowan]

Baal, I'm not for involuntary servitude but the difference that I see is-

If your life is severely disrupted by being structural discrimination there , in some instances, is no escape

But

If your business is disrupted because you are, by law , forced to serve certain individuals, then you can always choose to go out of business.

Or even convert to a private service

[Derek McGowan]

Selene,

Can't say I really understand the question but I do fulfill commissions from individuals.

[william.scherk]

Fox's Judge Napolitano makes it clear where he stands:

https://www.youtube.com/watch?v=1mnif1XXl74

-- as we discuss, Indian politicos are re-writing the bill to make sure it isn't used to discriminate on the basis of sexual orientation or gender identity. Which seems odd, given that the point of the bill was to allow a defense to a 'discriminator' if he or she were challenged by a 'discriminatee,' as I understand the issue. What was the bill otherwise than a state hand to give legal protection to those who choose to discriminate against or refuse service to gays and lesbians and transgendered people?

From the Indy Star:

As of 1 p.m., Democrats were meeting privately to decide whether to sign off on the clarifying measure, which they said doesn't go far enough to protect gays and lesbians from discrimination. If they don't agree to the proposal, Republicans have the ability to replace the Democratic committee members and advance the bill to the full House and Senate, where they want a final vote today.

"Hoosier hospitality had to be restored," Bosma said during the news conference, where he apologized "not for actions taken, but the message received."

"Is the damage able to be turned back?" he said. "That remains to be seen."

The leaders were referring to intense backlash that rained down on Indiana after Gov. Mike Pence signed the bill during a private ceremony last week. Conventions have canceled or threatened to move events that bring millions of dollars into the state. Prominent business executives have halted expansion plans or cancelled travel to the state. The NCAA, which is holding the men's Final Four in Indianapolis this week, has also expressed concerns about the law.

"It was never intended to discriminate against anyone," Long said. "That perception led to the national protests we've seen."

[Derek McGowan]

Why not,

You appear to have forgotten about the other part of reality where humans have a annoying habit of reinforcing their imagined disagreements with things* into dogma until they are forced to actually try those things out, many times realizing that they were completely wrong to believe what they previously did.

* lots of examples-

I for one swore to my mother that I had no love of coloration in my art. It was graphite till I die...until I got to college and had to take a painting class, now I'm in love with it.

People have automatically said that bean pies are disgusting, having never had one. This is the same for lots of food. I had Indian food at my wedding to finally get family to try it and they loved it. Children do this all the time.

Tv shows that you assume you would never like having never seen them.

An ex of mind was so against abortion, she voted for Bush PURELY on the basis of his antiabortion stance, then she actually had friends who told her their stories and she changed her mind.

Etc

[Selene]

William:

You stated that

...given that the point of the bill was to allow a defense to a 'discriminator' if he or she were challenged by a 'discriminatee,' as I understand the issue.

The key here is that the freedom to practice your religion is a primary individual right Constitutionally.

You cannot assume that a person is discriminating against another individual by practicing their religion.

And as Bob pointed out, you have a right to refuse service based on rational, or irrational selections.

You can assume that a person has an absolute right to be free.

A...

[BaalChatzaf]

Baal, I'm not for involuntary servitude but the difference that I see is-

If your life is severely disrupted by being structural discrimination there , in some instances, is no escape

But

If your business is disrupted because you are, by law , forced to serve certain individuals, then you can always choose to go out of business.

Or even convert to a private service

Being told to do business with someone under threat of losing your property, being fined or even going to jail is involuntary servitude.

[Derek McGowan]

Baal,

If a worker always has the option of leaving a job/industry in which the environment doesn't treat one as they would like - thus their job cannot be considered involuntary servitude (im just using this as an example to make a point because I could argue the other way as well) so too is the option of closing up ones business/going Galt if the law of the land, the environment, doesn't suit them - thus it cannot be considered involuntary servitude.

But even if it was, is that somehow worse or on par with another person being classed as an untouchable for cultural reasons. I see this person as really the one with no choice in the matter- thus "involuntary"

[Jjeorge]

Derek, I believe you're conflating metaphysical free will with political freedom, there.

That we have option to leave the country doesn't mean its laws constitute a rights-respecting government.

[william.scherk]

...given that the point of the bill was to allow a defense to a 'discriminator' if he or she were challenged by a 'discriminatee,' as I understand the issue.

The key here is that the freedom to practice your religion is a primary individual right Constitutionally.

You cannot assume that a person is discriminating against another individual by practicing their religion.

And as Bob pointed out, you have a right to refuse service based on rational, or irrational selections.

You can assume that a person has an absolute right to be free.

How do you explain the clarification that the Indiana pols published? It now explicitly protects gays and lesbians in the inserted language.

I mean, we might, from a purely Randian stance, disagree vehemently with any legislative act that curbs the ability of a person (or corporation or religious entity) to discriminate on the basis of race, religion, national origin, etc. We would be against the Civil Rights Act and each and every act that has led to "protection" from discrimination -- the ability to sue for damages or contracted services.

From a Randian perspective, all of it is the wrong business of government. If a business or entity refuses entry, accommodations, services and so on, we might find some discriminations odious and morally obnoxious, but yet would extend to that entity full freedom to be morally squalid. Put up a sign that says We do not Serve Negros, Fags or Dykes, the Objectivist will defend your right to refuse service, while decrying your bigotry. This is Tony and Bob's view of rights. Who suffers from discrimination can move along. The rights adhere to the discriminator (at least in the pure noumenal realm of shoulda-oughta).

In the Indiana case, there is then a Randian rationale for complete freedom to discriminate, but that is not what happened, and that is what interests me -- the jumble of news, freakouts, rebounds, swerves and drama accompanying this law's signing. The revision or clarification's explicit mention of sexual orientation and gender identity strips the bill of its intended effect -- to shield discriminatory acts from legal consequence.

Now, agree or disagree with the play of this issue in Indiana (or Arkansas where the governor signalled a veto for a similar act). Agree or disagree that it is proper to discriminate (as a florist, wedding photographer or cake maker or wedding registry or whatever) against gays and lesbians. Reject any act that would serve to bind someone in service to someone else against their will. What remains are the ethical and moral issues separate to government's improper laws and courts' improper interpretations.

What the reality seems to be is that notions of fairness and morality that Rand champions are behind the reaction to the bill. Philosophically far from her starkly simple government mandate, people who criticized the bill did not admit Randian niceties. Up to and including the Supreme Court, opinion has shifted. Gay marriage is in many states a right. The national debate over the Indiana law seized on this reality. Opposition was swiftly marshalled up to the point of boycott.

Thus, the motive power behind the re-jigging of the bill in Indiana was political reaction, not philosophical, not ethical. The boycottage may have had serious knock-on effects to Indiana's economy. The notion of discrimination against gays and lesbians is increasingly seen as morally repugnant under the conditions of America's constitution (as interpreted by USA courts), and aside from the religious groups that lobbied for the Indiana law, the issue has been solved (dangerous economical impacts avoided).

I am a spectator to the ongoing gay marriage issue in America. Up here the whole schmozzle is behind us.

As for rights, religious bodies have the right to not offer gay marriage as a sacrament of their beliefs. They have a right not to employ gays in their institutions.

Is there some suffering Canadian cake-maker who is forced to sell a cake to a couple that fills her with religious loathing? Probably, but we don't hear much from her.

Adam, I can entertain a Randian read of the whole schmozzle, but my observations were uncoupled from Objectivish notions. I am more interested in the contours of the Indiana ruckus, and what it says about what Americans tend to believe are bedrock issues -- as they change. The ruckus is likely to effect other states' considerations of similar laws. Which state would want to face boycott or the wrath of the business class?

If I sympathize with a Randian in face of the Indiana drama, I'd still challenge that Randian to offer a positive argument in favour of the initial 'unclarified' legislation. Why is it necessary, on Obectivist grounds?

Separately, how might this Objectivish argument in favour of an Indiana law have effect on the actors in the legal and social dramas that are still to come (ie, what would an Objectivist offer to the Supreme Court considering its gay marriage decisions in June?).

Reality is a government never sated with its power to legislate. Is there any reason for an Objectivist or Objectivish person to champion such Religious Liberty Restoration acts? Is there any effect an Objectivish person can make on the larger issue (I like Ed Hudgins arguments for the GOP to get out of the way of social reality)?

Meanwhile, in deepest Iowa:

In Iowa, Ted Cruz denounces gay marriage, lauds Indiana religious liberty bill

[Michael Stuart Kelly]

I don't think this issue is properly portrayed or framed.

Glenn Beck nailed it last year when he discussed the difference between a civil act and a religious one. It was during a discussion of gay marriage. He said he had no problem with gays marrying so long as the state does not obligate or prohibit churches regarding the ceremony. If one church performs gay marriages but another does not, that's the business of the churches, not the government. But the government has to perform legal marriages for all couples (so long as the government is in the marriage business).

I agree with this and consider it sound reasoning because of the dual nature of marriage: it is a legality and a religious bond. Sometimes it is only one or the other, but it can and often be both. The competence of the government is (and should always be) restricted to legalities, not religious bonds and ceremonies.

Whether the government should even be in the marriage business is another matter. Also, I tend to agree with anti-discrimination measures when a tyrannical situation is kept in place for a massive amount of people because of a technicality. Both of these issues are relevant to this discussion, but they fall outside the point I am making in this post.

Thus, in the issue of performing a business service for a gay marriage, like making and selling a wedding cake, the debate should first be about defining the issue correctly. How much, in both legal and religious terms, is providing a wedding cake strictly a business service and how much pertains to a religious ceremony?

I don't have a clear answer to that in my deepest thinking yet, but I do see that this dispute will not resolve until this issue is defined in terms of essentials.

One thing is clear to me, though. Nobody on the extremes wants clarity. They want obedience. They want power over the other. Do I believe the hardcore gay rights advocates are pushing too hard to cover this agenda? Yup. Do I believe the hardcore Christian folks are pushing too hard to cover this agenda? Yup.

And we get to see the circus.

Michael

[Selene]

William:

In the Indiana case, there is then a Randian rationale for complete freedom to discriminate, but that is not what happened, and that is what interests me -- the jumble of news, freakouts, rebounds, swerves and drama accompanying this law's signing. The revision or clarification's explicit mention of sexual orientation and gender identity strips the bill of its intended effect -- to shield discriminatory acts from legal consequence.

Again, we disagree on the original intent of the legislation.

Is it, de facto proof of discrimination within the meaning of other statutes, when:

1) entity X, an Orthodox Jewish bakery, refuses to bake a cake for two homosexual Nazis?

2) entity Y, a fundamentalist pizza place, refuses to cater a marriage ceremony for two homosexual Nazis?

3) entity Z a Muslim caterer refuses to cater a marriage ceremony with champagne toasts for two homosexual Nazis?

And, if they are prosecuted, or, sued, are their rights to offer as proof that their acts were not discriminatory under the letter of the other statutes because that law places an undo burden upon the free exercise of their religion?

Or, should the ability to raise that defence to be denied to them?

A...