Religious Freedom Restoration Act: Discriminatory Intent or Market Failure Waiting to Happen?

Religious Freedom Restoration Act: Discriminatory Intent or Market Failure Waiting to Happen?


The progressive branch of the political elite have been spinning the narrative that Indiana’s brazen version of the Religious Freedom Restoration Act is a license for commercial interests to discriminate against certain social groups, most notably the gay community. Mike Pence, the Republican governor of Indiana, wrote an opinion piece in The Wall Street Journal defending the Act, going as far as saying that the law does not give businesses a license to discriminate. Mr. Pence is right that there is no explicit license to discriminate, but the Act does make it a little easier for a business to consider more explicit acts of discrimination.

Under the Indiana law, a claimant must demonstrate that a state action (an action by a government entity) or the action taken by an individual based on state action is a substantial burden on the claimant’s ability to exercise his religion and that the action does not further a compelling state interest, an interest of the highest order.  According to Professor Bette Novit Evans:

When a law threatens certain fundamental rights, the laws defenders assume the burden of proof to justify it. They have to convince the court that (1) the challenged law served not just an important public purpose, but a genuinely compelling one; (2) the law was well-tailored to achieve that purpose, and (3) the purpose could not be achieved by some less burdensome method.

The law makes it clear that it will fend off government attacks on religion but it does not make it clear that it will force parties into a market relationship where one party, based on religious grounds, opposes initiating a transaction with another party. Indiana wants to leave that choice open to individuals to enter market relationships and that is a good thing.

Discrimination has always been a part of religious practice. Try attending a Methodist service and insisting that the clergy follow Islamic rituals or replace Genesis chapter 1 with a reading from Charles Darwin or Christopher Hitchens. You would be asked to leave and not come back.

The rules and philosophies of a religious practice automatically erect a wall between the followers and non-followers. Part of religious exercise is to interpret teachings handed down over hundreds of years and applying highly subjective and emotional beliefs in a 21st century world that strives to equate the races and has grown more tolerant of differing views on sexual preference and other alternative lifestyles. Unfortunately for the religious, while times may have changed, the interpretations of religious readings and teachings may not have kept up with changing views in society, leaving the religious with no choice but to erect barriers in the name of religious self-preservation.

But does a changing society have a right to impose new rules of association on religious communities? The answer is no. Individuals and entities that make up the religious community have a right to associate with individuals and groups of their choosing whether those interactions are personal or commercial. You can’t force the religious to have a “come to Jesus” moment and hold hands with the unannointed. It won’t happen.

Nor can you protect the commercial component of the religious community from the consequences of their choice to discriminate, which will be loss of business. For those of us who see the reality of the Act, that it will lead to certain businesses attempting to discriminate against particular consumers, we should relish the thought that in due time these businesses will be called out and find themselves on the receiving end of the discriminatory practices that they wished to engage in.

Consumers, who have a myriad of choices for goods and services, will have the final say.