Whose Right Is It Anyway?

Patrick Bissett Freelance Journalist
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As the controversy surrounding Indiana’s Religious Freedom Restoration Act (RFRA) continues to build, Gov. Mike Pence has attempted to offer clarification on the contentious law. Opponents of the RFRA are concerned that the law will enable businesses in Indiana to refuse services to individuals on the basis of their sexual orientation. While the debate intensifies, so does the confusion. Many critics (and even supporters) of the law are unclear about its purpose, its origins, and why, ultimately, states shouldn’t need an RFRA in the first place.

When news broke about Indiana’s plans to introduce an RFRA, most people didn’t know that there was already a twenty-year-old federal RFRA in place, signed into law by President Bill Clinton in 1993. Indiana is the twentieth state to implement an RFRA and since doing so has faced relentless criticism. Governor Pence has offered an olive branch of clarification but has otherwise refused to back down, arguing that the law has nothing to do with lesbian, gay, bisexual, and transgender (LGBT) rights. While it may aggrieve LGBT activists, Pence has a point. The purpose of the law as originally conceived is to protect religious freedom except in cases in which there is a “compelling government interest” at stake.

The history of the federal RFRA is a little messy, but the short version is that it came into existence in 1993 as a consequence of two separate Supreme Court cases, in 1988 and 1990. Both were brought by Native Americans who argued that their First Amendment rights had been violated by the U.S. government. The government won both cases, leading to widespread public outrage. That outrage caused the banding together of several lobby groups to campaign for legislation to reinstate the Sherbert Test, a determinant in establishing whether government action is in contravention of the Free Exercise Clause of the First Amendment. Thanks to public pressure, the RFRA bill (including a reinstated but somewhat limited Sherbert Test) passed the House unanimously and with a 97–3 majority in the Senate.

Critics of the Indiana law have argued that it is anachronistic and is being used as a mechanism to legalize discrimination against the LGBT community. Celebrities such as George Takei and business leaders such as Apple CEO Tim Cook have weighed in, decrying the decision of the Indiana legislature to pass the bill. The issue has even transcended partisan politics, with some Republicans coming out against it.

It’s an unfortunate reality that in debates of such fundamental importance, the shrillest voices are the ones heard above all others. Much of the argument coming from those who oppose the law amounts to little more than scare-mongering. Progressives view the RFRA as an attempt by social conservatives to stunt progress and to ostracize gays and lesbians.

But in an email to The Weekly Standard, University of Virginia law professor Douglas Laycock points out that the possibility of Indiana’s RFRA being used as a tool to enable discrimination is non-existent. “There are hardly any cases about discrimination, and nobody has ever won a religious exemption from a discrimination law under a RFRA standard,” he told them. “Of course there are real bigots out there, and some of them discriminate against gays and lesbians. They are doing that in states without RFRAs as well as in states with RFRAs. They mostly aren’t asserting religious justifications; they aren’t producing cases. And if they do start to produce cases, all experience is that they’re going to lose.”

The reason they’ll lose is because there are no states that don’t already have some form of anti-discrimination laws on their books. Additionally, the Supreme Court pointed out in its 2014 Hobby Lobby decision that acting against discrimination is in itself a compelling government interest. So — case closed.

The USA of 2015 is a far different place than the USA of 1993. The Supreme Court stands poised to legalize gay marriage across the country. Acceptance of the LGBT community is becoming the norm. Atheism is on the rise. The United States, for better or worse, is swiftly moving along a political and societal trajectory charted by progressive liberals. A natural outcome of such rapid societal change is the sprouting of debate at the points where individual rights supposedly collide. Unfortunately, the current brouhaha enveloping Indiana’s RFRA is stifling discussion; consequently, the most fundamental issue remains ignored. It’s simple: understanding when a right is a right — and when it is not.

Rights by their very nature are supposed to be inviolable. The purpose of assigning rights such as those laid out in the Bill of Rights is to guarantee citizens certain freedoms. By dint of those freedoms being guaranteed, it becomes impossible for situations to arise where rights are in competition with one another. One right cannot cancel out another, much in the same way the south poles of two magnets cannot touch. What this means in practice is that when two rights come into conflict, at least one of the rights isn’t actually a right at all. Such a situation is happening now with the Memories Pizza debacle in Walkerton, Indiana.

After news broke that Indiana’s RFRA was passed, ABC 57 News ran a story about the O’Connor family, who own Memories Pizza. Speaking to ABC 57 News, Crystal O’Connor said that if asked, the family-run business would not provide catering for gay weddings. “If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no.”

The reason for the refusal is that it contradicts the O’Connor family’s religious beliefs. According to ABC 57 News reporter Alyssa Marino, O’Connor also said that her family had no issue with serving gay couples or members of other religions in their restaurant. The issue was just with gay marriage.

While the Memories Pizza situation is more or less hypothetical (the O’Connors haven’t actually refused to cater any gay weddings as a result of Indiana’s RFRA, they’ve just said that they wouldn’t), the rights issue still stands, and in reality it’s an easy one to figure out.

In order for a claim to a right to be considered legitimate, it must meet two standards: that of universality and of reciprocity. In other words, everyone must have the same right and everyone must have the same obligation to everyone else in relation to that right. The right of free speech would in this case mean, “I won’t stop you from speaking freely, and you won’t stop me from doing the same.” It meets both standards by granting everyone an equal right and an equal responsibility. Critically, as there is an equal balance, there is no coercion necessary. People just need to let other people get on with their lives and the system sorts itself out. This is what’s known as a negative right, which is the basis for all rights found in the Bill of Rights.

Applying this standard to the Memories Pizza situation results in an unequal balance. If a claim to freedom from discrimination was made by a hypothetical gay couple against the O’Connor family, it would, if upheld, impose an obligation upon the O’Connors to do something for the gay couple, in this case, cater a wedding. Granting this claim would result in the O’Connors being forced to provide a service that they don’t want to provide, whether money is involved or not. As such, since there is no element of reciprocity, the hypothetical gay couple would not have a corresponding responsibility to the O’Connors.

This is involuntary servitude, which goes against the spirit of having rights in the first place, that is, freedom from coercion. The First Amendment is supposed to protect against this. An RFRA shouldn’t be necessary.

Many find the idea of a business not wanting to provide services on the basis of a person’s sexuality reprehensible. But forcing somebody to provide services against their will, especially when they don’t want to provide those services because of deeply held convictions, is arguably worse. A person refused service can always go somewhere else; a person who has had their First Amendment rights trampled will have to live with that reality every day — or close their business. It doesn’t matter if those beliefs are incoherent. It doesn’t matter if those beliefs offend society’s shared values. Memories Pizza hasn’t refused service to anybody on the basis of their sexuality; the O’Connor family’s only “crime” was to say hypothetically, and in a limited capacity, that they wouldn’t.

Indiana’s RFRA hasn’t protected the O’Connors from the vicious online mobs who’ve swamped Yelp! with nasty, bileful “reviews” and sent death threats. That’s a job for the local police who are now guarding the pizzeria because of arson threats. The RFRA hasn’t protected the O’Connors from the economic consequences of their religious beliefs. And the RFRA, as Douglas Laycock points out, won’t protect the O’Connors from local anti-discrimination laws or compelling government interest. People have the right not to go to Memories Pizza. But, while in theory, Memories Pizza has the right not to cater certain events, it’s unlikely that they’ll enjoy that right if tested in a court of law. Not that it matters — the doors to Memories Pizza are now shut. The O’Connors are in fear for their lives and are considering permanently leaving the state.

As Supreme Court Justice Louis D. Brandeis famously said, the most important right “is the right to be left alone.”

Why is that so hard for people to understand?