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Religious Liberty Bills Miss the Real Issue

Same-sex marriage was first legalized in the United States in Massachusetts in 2004. That came as no surprise. But then followed the states of Connecticut (2008), Iowa (2009), Vermont (2009), and New Hampshire (2010), plus Washington, D.C. By the time of the Supreme Court’s decision in Obergefell v. Hodges (June 26, 2015), which ruled that marriage between same-sex couples was a fundamental right guaranteed by the Fourteenth Amendment, same-sex marriage was already legal in thirty-two other states, many because of federal court decisions, not by state court decisions, legislative statutes, or popular votes.

But, as usually happens when it comes to government interference in the market or society, there were unintended consequences of these actions.

Over the course of the last ten or so years, there have been numerous high-profile cases of business owners—usually bakers, photographers, and florists—refusing, on religious grounds, to provide wedding-related services to same-sex couples. Most have lost their court battles to “freely exercise” their religion.

For example, Sweet Cakes by Melissa, a bakery in the Portland area, was ordered to pay $135,000 in damages to a lesbian couple “for emotional suffering stemming directly from unlawful discrimination” after the bakery refused to bake a cake for the couple’s wedding.

It is on account of religious conviction, not bigotry, that Christian small business owners are refusing to provide wedding-related services to same-sex couples. Consider the case of Jack Phillips, owner of Masterpiece Cakeshop in Colorado. After refusing to bake a cake for a gay couple in 2012, Colorado’s Civil Rights Commission ruled in 2013 that Phillips discriminated against the couple and ordered him to change his store policy or face fines. Explained Phillips:

“I don’t feel that I should participate in their wedding, and when I do a cake, I feel like I’m participating in the ceremony or the event or the celebration that the cake is for.” In 2015, the Colorado Court of Appeals likewise ruled against him. Because of this, his shop no longer makes wedding cakes of any kind, although it used to make 200-250 wedding cakes per year. But Phillips has said that “he has no problem with lesbian, gay, bisexual or transgender (LGBT) customers or staff members.” He has also maintained that “he has no problem serving gay people at his store,” just that “making a wedding cake for a same-sex wedding would violate his Christian beliefs.”

So, what we are dealing with here is just certain businesses discriminating for a certain reason against certain people who want them to provide a certain service. I have never heard of any case of a hardware store or grocery store refusing to sell merchandise to someone because he was a member of the “LGBT community.” I have never heard of any case of a movie theater or amusement park refusing to admit same-sex couples.

Several state legislatures have introduced “religious liberty bills” in an attempt to protect the right of certain business owners to discriminate against certain people in certain instances for certain reasons. Some of the legislation has passed, like in Mississippi, and some have been vetoed by state governors, like in Georgia.

Since it did pass in Mississippi, let’s look briefly at the law as it stands. House Bill 1523 basically allows private businesses and religious organizations to refuse wedding-related services to same-sex couples if such action is based on religious beliefs that oppose same-sex marriage. Although government entities in Mississippi cannot refuse service to anyone, individual government employees may opt out.

House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act, is designed to protect the sincerely held religious beliefs or moral convictions that

(a)  Marriage is or should be recognized as the union of one man and one woman;

(b)  Sexual relations are properly reserved to such a marriage; and

(c)  Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.

As it relates specifically to denial of service, the bill states:

(4)  The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person declines to participate in the provision of treatments, counseling, or surgeries related to sex reassignment or gender identity transitioning or declines to participate in the provision of psychological, counseling, or fertility services based upon a sincerely held religious belief or moral conviction described in Section 2 of this act.

(5)  The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person has provided or declined to provide the following services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration, or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act:

(a)  Photography, poetry, videography, disc-jockey services, wedding planning, printing, publishing or similar marriage-related goods or services; or

(b)  Floral arrangements, dress making, cake or pastry artistry, assembly-hall or other wedding-venue rentals, limousine or other car-service rentals, jewelry sales and services, or similar marriage-related services, accommodations, facilities or goods.

(6)  The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person establishes sex-specific standards or policies concerning employee or student dress or grooming, or concerning access to restrooms, spas, baths, showers, dressing rooms, locker rooms, or other intimate facilities or settings, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act.

Governor Phil Bryant signed the bill into law on April 5 despite opposition from gay-rights groups and some in the business community. “This bill merely reinforces the rights which currently exist to the exercise of religious freedom as stated in the First Amendment to the U.S. Constitution,” said the Republican governor. It does not “limit any constitutionally protected rights or actions of any citizen of this state under federal or state laws.”

But, on the other hand, someone from the ACLU said the bill “flies in the face of the basic American principles of fairness, justice and equality and will not protect anyone’s religious liberty.” The bill is “an attack on the citizens of our state, and it will serve as the Magnolia State’s badge of shame.”

The new law takes effect on July 1.

Before looking at the problem with religious liberty bills, it should be said that someliberty is better than no liberty. The state allowing certain businesses to discriminate in certain areas against certain people for certain reasons is better than the state allowing no businesses to discriminate in no areas against no one for no reason.

It is also true that more liberty is better than less liberty. The state sometimesallowing certain businesses to discriminate in certain areas against certain people for certain reasons is better than the state seldom allowing certain businesses to discriminate in certain areas against certain people for certain reasons.

Just like tax deductions for some are better than tax deductions for none, and tax credits for many are better than tax credits for few.

So, what’s wrong with religious liberty bills? Don’t look to People for the American Way to tell you. Better look to libertarians who support in individual liberty, private property, freedom of contract, and freedom of association and oppose political correctness, the nanny state, government regulation, and the police state.

Religious liberty bills miss the real issue.

The real issue is freedom. In a free society, business owners have the right to refuse service to anyone for any reason on any basis. Religion has nothing to do with it. It’s not just a pizza delivery driver refusing to deliver pizza to certain neighborhoods. It’s not just a taxi driver refusing to pick up or drop off patrons on certain streets. And it goes much deeper than “no shirt, no shoes, no service,” as I can remember signs posted in some store windows.

In a free society, discrimination against a potential customer in any form and for any cause must be permissible. It doesn’t matter if the denial of service is because of religion, race, creed, color, complexion, national origin, ancestry, gender, age, sexual orientation, gender identity, health condition, disability, mental state, IQ, height, weight, hair color, eye color, hair style, facial hair, tattoos, scars, pregnancy, marital status, criminal record, political ideology, or socio-economic status.

In a free society, business owners likewise have the absolute right to hire only certain people and give discounts to only certain people. Just like private clubs and organizations have the absolute right of inclusion and exclusion.

The fact that denying someone service, not hiring someone, and not admitting someone to your club might be based on stereotypes, prejudice, hate, sexism, xenophobism, homophobism, bigotry, or racism is immaterial.

The fact that denying someone service, not hiring someone, and not admitting someone to your club might be viewed as unfair, illogical, irrational, nonsensical, or unreasonable is also immaterial.

I don’t hear any legislator in any state who supports a religious liberty bill making the case for freedom.

If an individual can discriminate against a business in any way, for any reason, and on any basis, then why can’t a business discriminate against an individual? What is so unreasonable about that?

Discrimination is not aggression. It is freedom.

Originally published at LewRockwell.com.

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