Update (Ed): Our friend Hans Bader strenuously objects to Johnson’s argument:
Gary Johnson is not well-informed about federal law. Johnson claims a century-old public accommodations law bans discrimination, such as against Nazis by Jewish bakers.
But the federal government’s public accommodation laws don’t cover Nazis, political affiliation, or even sexual orientation; were not enacted a century ago, but rather in 1964 and 1990, respectively (Title II of the Civil Rights Act, in 1964, banning public-accommodations discrimination based on race, color, religion, or national origin; and the Americans with Disabilities Act in 1990, banning discrimination based on disability in public accommodations).
Moreover, federal RFRA carves out exemptions to the reach of federal laws (see the Supreme Court’s Gonzales v. O Centro Espirita decision), so even if Congress were so stupid as to ban discrimination against Nazis, a Jewish baker might be able to seek an exemption to such a law to avoid serving a Nazis).
There is also a law banning racial discrimination in contracts, 42 USC 1981, which the Supreme Court applied to the private sector beginning in the late 1960s; but it only covers racial discrimination, not sexual discrimination, sexual orientation discrimination, or discrimination against Nazis.
Note: Hans’ input has been updated by Hans’ request.
Original post follows …
One of the places conservatives and libertarians keep poking at with Libertarian presidential candidate Gary Johnson is religious liberty. Primary opponent Austin Petersen blasted Johnson in a debate for answering the hypothetical question of “should a Jewish baker be forced to bake a cake for a Nazi?” Johnson’s answer wasn’t exactly libertarian, but was in line with federal law. Washington Examiner’s Timothy Carney cornered Johnson at the Democratic National Convention and pressed him on the issue (emphasis original):
Do you think New Mexico was right to fine the photographer for not photographing the gay wedding?
“Look. Here’s the issue. You’ve narrowly defined this. But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we’re gonna open up a can of worms when it come stop discrimination of all forms, starting with Muslims … who knows. You’re narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of.”
In a year when conservatives are being turned off by Donald Trump, do you worry that you’re turning off conservatives who might come to the Libertarian Party?
“It’s the right message, and I’m sideways with the Libertarian Party on this. My crystal ball is that you are going to get discriminated against by somebody because it’s against their religion. Somehow you have offended their religion because you’ve walked in and you’re denied service. You.“
The answer didn’t go over well with people, including The Federalist’s David Harsanyi, who wrote Johnson is still wrong on religious liberty:
Many liberals and journalists distort the intent and scope of religious freedom laws, but a libertarian should know better. You don’t have to agree with the religious liberty proponents, of course. You can view religious freedom as ugly prejudice — something state-run justice commissions should monitor and forcefully expunged from American life. Plenty of people do. What I’m not sure of, though, is which libertarian idea justifies government policing thought crimes and undermining property rights? Johnson has yet to explain.
Mostly, though, I suspect that Johnson believes dismissing religious liberty and property rights in this case will endear him to the Left and expand his voting base. Many libertarians feel culturally in sync with liberals, and this is just the manifestation of that impulse. It’s a lost opportunity for Johnson to be both a principled libertarian and gain new conservative voters.
I reached out to the Johnson campaign and received this response from communications director Joe Hunter:
“The governor’s reference is to the fact that when you go down the path of legislating religious liberty, with the best of intentions, there is a very real risk of creating unintended consequences.
It is not in any way a suggestion that religious liberty and freedom is not essential — and protected in the constitution.”
I can see Johnson’s point, especially when it comes to the government getting involved in religious issues. There is a reason why the First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” and the 14th Amendment extends that ruling to state and local governments. The government isn’t supposed to get involved in religious matters unless someone’s life, liberty, or property is in danger. The government’s failure to do this (see anti-Mormon laws or the Alien and Sedition Acts) is one reason why things are so buggered up with everyone racing to government to solve everything.
Religious Freedom Restoration Acts are something which honestly shouldn’t exist (or have to exist) because of the First Amendment and liberty of contract in the Constitution. One reason why they DO exist is because of, you guessed it, the government! The Supreme Court originally ruled on liberty of contract in 1902 with the Lochner case, which nullified a New York law mandating how many hours people could work per week, but completely reversed itself in the 1934 Nebbia decision. Let’s not forget laws which established the Food and Drug Administration as a way to make sure the “government approves” your food, drink, and drugs. As the government keeps micromanaging our lives, more and more freedom will be taken away (even under the guise of “restoring it”). It’s possible Johnson is just giving in to fear of what might happen, as Reason’s Scott Shackford suggests, but there’s also the “Should the governmen-NO!” expression too.
One thing I wish Johnson’s campaign had answered is, “What happens when federal law runs sideways of the Constitution?” This is something more politicians need to think about before passing a law which “solves this problem” or “solves that problem.” It’s also something more reporters/commentators and voters need to think about as well. There are certainly people who believe the Constitution does allow Congress to address everything from port safety to gun control, and this is something those of us who believe in the “actual text,” have to fight against. It’s an argument which is going to go on forever (or at least until Thor kills Jormungandr).
Johnson is right in saying the government shouldn’t be legislating religious liberty, even if he and I appear to disagree on certain laws. I doubt his comments will appease those who seem unwilling to support him over the issue (and they do have a point). But his opinion is certainly a bit more nuanced than his opponents (and Johnson himself) are trying to make it out to be. He does need to work on his delivery of said opinion a little better, especially if he hopes to be on the debate stage.