Wednesday, April 1, 2015

RFRA & Discrimination

There's only one thing wrong with Indiana's (or anyone else's) Religious Freedom & Restoration Act (RFRA): it didn't go quite far enough. That is, why should you have to invoke a religious exemption in order to freely determine with whom you want to work or the kind of benefits you want to offer? I might not want to hire you because your 'lifestyle' (gay or straight) violates the tenants of my company's religious beliefs (the Supreme Court upheld Hobby Lobby's decision not to offer contraceptives for the same reason), but I also might not want to employ you because your ears are large. The former may be protected by RFRA, the latter is not. Why?

Of course, it goes without saying that it's foolish not to hire productive gay people and the market will 'punish' those who do. Leave the government out of private hiring decisions once and for all and the most invidious form of prejudice will collapse. In fact, what made Jim Crow so evil is that the law itself enforced discrimination in the face of companies who wanted to hire blacks. So the slippery slope argument that if states pass RFRA, why the next thing you know we'll be back to segregated lunch counters is silly. Beyond the fact that under the law, anyone's religions beliefs must be 'sincerely held,' are we really to believe that if it were legal, the PGA would boot Tiger Woods? That Oprah's show wouldn't get aired? That Bill Cosby wouldn't get hired...okay, forget that last one.

Freedom of association is a fundamental right upheld by the federal courts for groups as diverse as the NAACP and the organizers of the St. Patrick's Day Parade in NYC. It is a protected form of viewpoint discrimination--however unpopular--reflected by the action of private individuals (public or state sponsored discrimination is already prohibited by the Civil War Amendments as they should be) organizing as they see fit. However, this form of speech embraced by the First Amendment is protected only for those private groups; if you mortgage the house and forego the kids college education to start a business, the government gets to tell you how to run your affairs. At that's precisely what the protestors in Indiana and around the country are want...more control.

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