The back-and-forth over Indiana’s supposedly anti-gay Religious Freedom Restoration Act has all the hallmarks of contemporary American politics. Rather than trying to narrow the areas of disagreement, widen them. Take for granted your opponent’s bad faith. Get the courts involved. Above all, ground the dispute in axioms that rule out compromise.
What does this law actually say? You could have read a surprising amount of commentary on the dispute and still not know. The much-discussed op-ed in The Washington Post by Apple boss Tim Cook deplores the law without bothering to go into detail. He says it lets “individuals cite their personal religious beliefs to refuse service to a customer or resist a state non-discrimination law,” and calls this without further analysis “an effort to discriminate.”
As Ramesh Ponnuru says, Indiana’s law – similar to a 22-year-old federal law and laws in many other states – provides that people can be made to act against their religious beliefs only in pursuit of a compelling public interest and in the least intrusive way.
Granted, Indiana’s law is unusual in granting protection on religious grounds to businesses as well as people, and in not requiring the government to be a party in the legal action. These differences widen the law’s application but don’t affect the basic principle, which is that infringements of religious liberty must be tested against the wider public interest.
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Is that wrong? If religious freedom is valuable – and it is – then this balancing principle seems unobjectionable. None of the denunciations of Indiana’s law I’ve read takes issue with this idea. Cook says that he prizes religious freedom, but then just ignores the trade-off between that goal and the obligations (including non-discrimination on grounds of sexual orientation) that he wants society to place on its citizens.
Cook and other critics of Indiana’s law have a point when they question the timing and motives of the law’s champions. In Indiana, the law’s supporters have mostly opposed a statewide anti-discrimination law. They aren’t standing for a balance of freedoms; they want their own conception of freedom to prevail. Cook could even be right to call this an “effort to discriminate.” Nonetheless, the content of the law and the purposes of some of its advocates are different things, and the distinction is worth noticing.
Though I agree with Ponnuru on the need to strike a balance between religious freedom and non-discrimination, I disagree with him about how. “I don’t believe that people who make wedding cakes should be forced by law to cater same-sex weddings if they object,” he says.
On balance, I do. Forbidding discrimination against gay people is a compelling interest, in my view – and requiring a maker of wedding cakes to do business with a gay couple imposes no great burden on the cake-maker. The detested new law accommodates that outcome, and that’s how I’d expect the courts to apply it.
It’s a shame, of course, that such disputes need to go to court in the first place. A little more tolerance all around would be more economical. Maybe the cake-maker could sell the cake with a smile – “judge not, lest ye be judged,” no endorsement of gay marriage implied. Or the gay couple, refused their cake, could conceivably laugh at such prejudice and take their business elsewhere. (It isn’t as though that’s any longer hard to do.)
What am I saying? This is America. If something is wrong, it’s wrong. At stake are the very principles on which the nation was founded. This is about liberty, equality, Plymouth Rock and the Rights of Man. It certainly isn’t about cake.
Clive Crook is a Bloomberg View columnist and a member of the Bloomberg View editorial board.