RFRA & the Right to Discriminate

There's only one thing wrong with Indiana's (or anyone else's) Religious Freedom & Restoration Act (RFRA): it doesn't go far in enough in allowing discrimination. That is, why should you have to invoke a religious exemption in order to freely determine with whom you want to associate? 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 is 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. 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 embossed in the First Amendment is protected only for those private groups which do not offer 'public accommodations.' This distinction is one of whole cloth and nowhere to be found in the Constitution. The bottom line is this: if you start an ideological based non-profit organization you can pick and choose your members; if you mortgage the house and forego the kids college education to start a business, the government gets to tell you whom to hire. At least that's precisely what the protestors in Indiana and around the country are saying.

But in the final analysis, here's the question that everyone, on both sides, is dodging: in a free society, should the association between individuals be voluntary or involuntary? This is a principle so it matters little if it's a church, club, or workplace. You can indeed answer 'no,' as many are, but you just can't be in favor of liberty while doing so.