Quotes of the day
America’s business community recognized a long time ago that discrimination, in all its forms, is bad for business. At Apple, we are in business to empower and enrich our customers’ lives. We strive to do business in a way that is just and fair. That’s why, on behalf of Apple, I’m standing up to oppose this new wave of legislation — wherever it emerges. I’m writing in the hopes that many more will join this movement. From North Carolina to Nevada, these bills under consideration truly will hurt jobs, growth and the economic vibrancy of parts of the country where a 21st-century economy was once welcomed with open arms…
I remember what it was like to grow up in the South in the 1960s and 1970s. Discrimination isn’t something that’s easy to oppose. It doesn’t always stare you in the face. It moves in the shadows. And sometimes it shrouds itself within the very laws meant to protect us.
Our message, to people around the country and around the world, is this: Apple is open. Open to everyone, regardless of where they come from, what they look like, how they worship or who they love. Regardless of what the law might allow in Indiana or Arkansas, we will never tolerate discrimination.
[T]he Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.
Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”…
Of all the state “religious freedom” laws I have read, this new statute hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people. True, there is no actual language that says, All businesses wishing to discriminate in employment, housing, and public accommodations on the basis of sexual orientation, please check this “religious objection” box. But, as Henry David Thoreau once wrote, “Some circumstantial evidence is very strong, as when you find a trout in the milk.”…
The statute shows every sign of having been carefully designed to put new obstacles in the path of equality; and it has been publicly sold with deceptive claims that it is “nothing new.”
The thing is, if you are refusing to bake a cake for a same sex wedding, and you can demonstrate that you routinely refuse service to people whose lives singe your conscience, you’ll win any case brought before you. You won’t likely have enough customers to pay your bills, but no one would be able to convincingly charge you as a bigot or a hater, because your Christian conscience clearly does not discriminate between sinners.
If, however, you are routinely baking cakes for shacked-up couples, doing the flowers for “divorce parties” and irregular remarriages, and snapping photos for unwed mothers, but drawing the line at same sex weddings, then — as Ricky Ricardo said — “you have some ‘splainin’ to do.” Specifically, how do you argue that the goods and services you provide for other sinners do not demonstrate participation or advocacy of their behaviors, but baking up three tiers for two men somehow does?
Can you have it both ways? I suggest that consistency matters. Either no one living a life out of comportment with scripture gets a cake, because cake means you encourage their sin, or everyone gets a cake, because cake is just damn cake, and makes no statement at all.
Does Apple CEO Tim Cook really think that the kindergartener punished by his elementary school for his religious practice shouldn’t have any recourse at all? Is he not a human being who deserves good treatment? Does he think Orthodox Jews in Dallas shouldn’t have the right to worship in their synagogue? Do they really not have a religious issue?
It’s somewhat disconcerting when one of the wealthiest and most powerful men on the planet tells a group of religious minorities that he doesn’t think they have legitimate religious issues and that they shouldn’t have won their cases.
Cook writes that “Opposing discrimination takes courage.” He’s right. When powerful elites take aim at religious freedom, it takes a heck of a lot of courage to fight against anti-religious discrimination. That, of course, is precisely what RFRAs are designed to do.
Tim Cook is not only dishonest but he is a flaming hypocrite. Take a look at the list of countries where Apple has a presence. See any nations that engage in discrimination?
When was the last time Cook objected to a single act of discrimination in any of these countries? Never. He hasn’t. He doesn’t. He’s simply engaged in some feel-good bullying because Americans won’t kill him and his family and blow up his stores.
Tim Cook is dangerous because he’s using his money to plow into a political and cultural issue with no understanding of the issue and no regards for religion, or people, or the democratic process. He’s a hypocrite of the worst kind because he only cares about the issue when he’s safe and his bottom line is not in jeopardy.
Are the claims made against the new Indiana law accurate? Not really. This law, like other RFRAs, merely requires that state laws meet a demanding, but hardly insurmountable, test before infringing upon the religious practice or conscience of religious believers. If the law imposes a substantial burden on religious belief, the law must yield unless the law serves a compelling state interest and is the least burdensome way to advance that interest. Here’s more background on how these sorts of laws work…
Courts have routinely upheld the application of nondiscrimination laws against RFRA-based challenges on the grounds that preventing discrimination is a compelling state interest. Of course it’s possible that a court in the future would reach a different conclusion, but there’s no reason to think such a result is likely, and there is nothing about the Indiana law that makes it a particular threat in this regard. That is, such a court decision is just as possible in one of the other dozen-plus states that has had its own RFRA on the books for years or in one of the many other states that have equivalent protections for religious belief under their state constitutions…
Are there any scenarios in which a state-level RFRA might result in an individual business owner denying service to a same-sex couple? Perhaps. The most likely scenario would be something like a religious wedding planner refusing to help plan a wedding that violates his or her religious beliefs. But even if such laws eventually allow this sort of thing, it is a far cry from, in Tim Cook’s formulation, a general license to discriminate against one’s neighbors.
The fear is that [Indiana’s law] could be used to deny service to gay people in places of public accommodation like businesses and restaurants. But, as discussed above, no RFRA has ever been used that way before. Also, Indiana does not have a public accommodation law that protects against anti-gay discrimination, meaning there’s no state law in Indiana preventing anti-gay discrimination in businesses even before the state RFRA was enacted. Notably, despite the lack of such a law, nobody can point to any Indiana businesses that were discriminating against gays…
It is entirely consistent to favor broad religious freedom protections and also favor gay rights. Many gays are religious, and so themselves benefit from religious freedom protections like RFRA. But even where gay Americans and religious Americans find themselves in conflict, there is ample room in communities to peaceably coexist. That’s the point of a RFRA. No side gets an automatic-victory card. The interests of all sides gets weighed.
I must stress — and this point has been totally lost in the Indiana debate — that RFRA does not provide immunity to discrimination claims. It only allows a defendant to raise a defense, which a finder of fact must consider, as in any other defense that can be raised under Title VII or the Americans with Disabilities Act. Yes, believe it or not, under employment-discrimination laws, the courts have long recognized that there are legitimate defenses to treating people differently based on protected statuses. In the Supreme Court’s decision in Hosanna-Tabor, mentioned earlier, the Court unanimously found that an employee terminated because of a disability could not sue the church, because of the Free Exercise clause. This may not seem fair or equitable, but this 9–0 decision by the Supreme Court was a recognition of clearly established principles of how religious beliefs can, in rare cases, provide a defense against discrimination claims. University of Virginia law professor Douglas Laycock, an expert in free-exercise law, stated the issue well: “The hysteria over this law is so unjustified. It’s not about discriminating against gays in general or across the board. It’s about not being involved in a ceremony that you believe is inherently religious.” Like the First Amendment, RFRA is not a blank check for bigotry.
In summary, four Courts of Appeals, covering nearly half the states in the Union, and the Obama Justice Department, have stated that RFRA can be asserted as a defense in a private case seeking the enforcement of federal law. As Indiana University law professor Daniel Conkle, a supporter of same-sex marriage, explained, “The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a ‘license to discriminate,’ and it should not be mischaracterized or dismissed on that basis.” In this sense, the Indiana law would operate as does its federal counterpart.
So what’s really going on here? A toxic combination of anti-Christian bigotry and sexual revolution radicalism. It is simply uninformed and bigoted to believe that Christians are somehow lurking in the shadows, ready to deny food, shelter, and basic services to their gay fellow citizens — blocked from such vicious actions only by the strong arm of the state. In my entire life as an Evangelical, I’ve never met a fellow Christian who wouldn’t gladly serve a gay customer. If there are exceptions to that nearly-universal rule, they are so marginal (and marginalized) in the Christian community that they’re irrelevant not only to Christendom but also to the body politic…
This bigotry has a purpose. It serves to demonize the last significant constituency standing in the way of sexual revolution radicalism. After all, unless you demonize your opposition, the general public will have little appetite for forcing Christians to pay for abortion pills, forcing Christian groups to open up to atheist leadership, or forcing Christian bakers or photographers to help celebrate events they find morally offensive. After all, there’s no clamor for requiring Kosher delis to stock pork or requiring gay lawyers to represent the Westboro Baptist Church.
While RFRAs protect people of all faiths, from peyote-smoking Native Americans to Bible-toting florists, the Left’s outrage is narrowly targeted — against the Christian people whose livelihoods they seek to ruin, whose consciences they seek to appropriate, and whose organizations they seek to disrupt. #BoycottIndiana isn’t a cry for freedom. It’s nothing more than an online mob, seeking to bully those it hates.
One of the difficulties in this discussion, from a conservative perspective, is that the definition of “common sense” and “compromise” on these issues has shifted so rapidly in such a short time: Positions taken by, say, the president of the United States and most Democratic politicians a few short years ago are now deemed the purest atavism, the definition of bigotry gets more and more elastic, and developments that social liberals would have described as right-wing scare stories in 2002 or so are now treated as just the most natural extensions of basic American principles. (Rod Dreher calls this the “law of merited impossibility,” in which various follow-on effects of same-sex marriage are dismissed as impossible until they happen, at which point it’s explained that of course they were absolutely necessary.) Of course all of this is happening because underlying attitudes have changed rapidly, and what’s politically and socially possible is changing with them; that’s all understandable. But the pace involved is unusual, and its rapidity makes it very easy to imagine that scenarios that aren’t officially on the table right now will become plausible very, very soon…
[I]t is my very strong impression that if a religious conservative (or anyone on the right) had said, back in 2004 or even into President Obama’s first term, that they accepted that marriage should be redefined nationwide to include same-sex couples, that they further accepted that this would happen swiftly through the courts rather than state-by-state and legislatively, and that all they asked of liberals was that this redefinition proceed in a way that allowed people like Barronelle Stutzman some wiggle room about whether their businesses or facilities had to be involved in the wedding ceremonies themselves — with the mechanism for opting out being something like the (then-still-bipartisan) RFRA model – this would have been treated as a very reasonable compromise proposal by a lot of people on the center-left, gay as well as straight…
At the very least, I think liberals would benefit from recognizing that the current thinking of religious conservatives, in the RFRA debate and elsewhere, is shaped not only by these kind of specific fears but by a near-total uncertainty about what happens after this, and after that, and so on. And given how the ground has shifted recently, I think there would be real benefits for both sides to having more people on the left and center-left taking explicit positions on where we might and ought to go from here.