Indiana, Commerce, and the Ethics of Tolerance

Indiana’s new Religious Freedom Restoration Act (RFRA) has not been popular. Critics (such as Apple CEO Tim Cook) worry that it will be used to allow businesses to discriminate based on sexual orientation. More precisely, the new law limits the ability to use legal mechanisms to restrict the freedom to exercise one’s religion, including the exercise of one’s religion while engaging commerce. The “standard” example: if the baker’s religion says homosexuality is a sin, then under the RFRA no one can force the baker to bake a wedding cake for a gay couple.

It’s easy to miss a couple of key distinctions, here.

One is the difference between public law and private law. The government using legislation to force business owners to do something that violates their religion, is one thing, and that, on my understanding, is what the Federal RFRA and various other state-level RFRA’s are intended to limit. Historically, protection against the power of the state is, after all, an important liberal-democratic principle. But the Indiana RFRA apparently extends protection of religious freedom to cases in which the government plays no role. So if the gay couple in Indiana sues the baker, the baker can (apparently) point to Indiana’s RFRA and say, “no, the law protects me.” But having one’s religious conscience protected from intrusion by one’s fellow citizens is a much less compelling need than having it protected from the government. That doesn’t settle the issue of whether Indiana’s RFRA is a good law, but it’s an important distinction to note.

The second distinction is between rights, on one hand, and what is right, on the other. The RFRA is designed to protect bad behaviour — namely discrimination based on sexual orientation. Or to put it more generously, the RFRA is designed to protect religious freedom, and to protect it even when your religion requires you to do something bad, such as violating another human being’s right to be treated with dignity and respect.

Alas, living in a free society does sometimes require that we protect bad behaviour.

If you are a wealthy homeowner, and on a hot summer day a homeless passerby steps off of the sun-baked sidewalk and onto your lawn to pause in the shade of your tree, you are within your rights to tell him to get off your lawn. It’s your property, after all, and technically he is trespassing. And it would be wrong for government to tell you, “No, you must welcome everyone onto your lawn.” Respect for private property is a cornerstone of civilization, and so the right to property must be given broad respect, even when exercising that right means engaging in grotesque incivility.

(In the case of the motivations behind the Indiana law, the incivility in question has in fact been highly organized. As political theorist Jacob Levy points out in a blog entry, the anti-gay-marriage camp has historically been not just aggressive in defence of its take on religious freedom, but viciously and hatefully so.)

It bears considering that civility in the relevant sense is not just a set of behaviours; it’s a disposition, a way of being, a way of carrying oneself in life. In this regard, it is worth pointing out that those who would exercise their religious freedom by refusing to do business with gay consumers are not only engaging in morally-unjustifiable discrimination (as if that weren’t bad enough); they’re also conducting themselves in a way that is anathema to capitalism itself.

Consider this lovely quotation from Voltaire — pardon the somewhat dated vocabulary and examples — written in response to seeing people of various faiths interacting peaceably in pursuit of commerce in London.

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied. Voltaire (Letters on the English, Letter 6. 1734)

Voltaire’s point here isn’t about religion, but about the civilizing tendency of commerce, and the in turn about the virtues upon which commerce is founded. Non-discrimination is central among those virtues. When we engage in commerce, it’s not supposed to matter whether you’re black or white, Muslim or Jew, straight or gay. As my friend and fellow philosopher Alexei Marcoux wrote,* “To survive and flourish…a commercial culture must be populated in significant part by individuals possessing the virtues, habits, and dispositions that complement classically liberal institutions.” And that includes a commitment to treating each other with respect. If your religion doesn’t encourage such respect, then the law may well protect you, but so much the worse for society’s reverence for your religion.

(*See: “Is a Market for Values a Value in Markets?” Here’s the PDF.)

3 comments so far

  1. […] Indiana, Commerce, and the Ethics of Tolerance […]

  2. John Thacker on

    “But the Indiana RFRA apparently extends protection of religious freedom to cases in which the government plays no role. So if the gay couple in Indiana sues the baker, the baker can (apparently) point to Indiana’s RFRA and say, “no, the law protects me.”’

    Well, they can raise the defense, but they will almost certainly lose, at least judging by precedent. In addition, it’s also not necessarily different from the Federal RFRA does either, according to most US Circuit Courts of Appeal that have considered the issue. (See the law review article that Douglas Laycock mentions here: There’s decent evidence that the drafters intended the federal RFRA to provide the defense, but the text is ambiguous, and different courts have ruled differently.

  3. […] Hunting lions is one of those practices, but there are others. Birth control is another. So is refusal to bake a cake for a gay couple. So the fact that you are personally absolutely certain that a business practice is ethical […]

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