Don’t tread on Indiana
Are the people of Indiana incorrigible jerks unworthy of freedom? So you’d think from the general reaction to their new law protecting freedom of conscience including at work.
The much-maligned law in question prohibits state laws that “substantially burden” a person’s ability to follow their religious beliefs, with “person” in the legal sense including religious institutions, workplaces and associations. And the pile-on has been swift and massive.
Seattle and Connecticut won’t let their employees travel to Indiana at public expense. The NCAA threatened not to hold tournaments there. President Obama’s spokesman denounced the law. So did Apple’s Tim Cook, along with a similar Arkansas bill that Walmart CEO Doug McMillan also called a threat to “the spirit of inclusion” and asked the governor to veto.
NBC says 19 other states have similar laws so it’s not quite clear why this one has everyone freaking out. But the firestorm is so intense both states have tried to back down. If this is not the tyranny of the majority, I don’t know what to call it.
Let me be absolutely clear here. In defending freedom, I am defending the right of people to be obnoxious. Some supporters of such laws hold ugly opinions on homosexuality and, if permitted, will behave in ways that are deservedly unpopular.
It’s great when someone challenging social conventions turns out to be right. But remember, we couldn’t tell they were right at the time or their position would already have been orthodoxy. I say freedom must protect currently shunned ideas and habits or it is a fraud.
Now let me ask Indiana’s and Arkansas’s critics to be equally clear. Given freedom of speech, thought and association, many people will say, think and do things that are wrong. Is it too high a price to pay? Shall liberty not extend to unpopular things?
If we do not let freedom reign, we can’t ask God to ban misconduct. Instead, we must impose the majority’s views on the minority. And right now, the majority view is that Christians cannot tell a gay couple to find another wedding photographer.
Ah, but what if all the photographers refuse? Surely, there should be a law. The Post’s own Andrew Coyne made this argument in Maclean’s in 2010, saying you needed a law against segregated lunch counters in the American South because everyone was doing it, creat- ing “a kind of tacit conspiracy in restraint of trade” that denied blacks freedom of contract.
He has his history wrong. Segregation was a creature of government, not private business, both when expressly legislated, for instance on buses and streetcars, and when the state wilfully failed to suppress vigilante violence against blacks and their white sympathizers whose businesses welcomed them.
Likewise, the great 1960s turning point on gay rights was the Stonewall Riots of June 28, 1969, triggered by a police raid on a gayfriendly Greenwich Village establishment. Back then, every state but Illinois criminalized homosexual sex, often with heavy legal penalties, instead of saying private establishments and individuals should be free to flout majority opinion.
Thus Coyne also has his legal theory wrong. If a population is so bigoted not one lunch counter will serve blacks and whites together, where shall we get voters willing to ban segregation? The only possibility is to find people so dedicated to freedom in principle that they will legislate toleration of things they personally dislike.
Which, ironically, we don’t seem able to do today. Indiana’s and Arkansas’s critics were not proposing boycotting particular businesses that use their freedom to shun homosexuals. They were proposing boycotting entire states for allowing people freedom to defy conventional wisdom the critics personally share.
Sadly, the human conscience is anything but infallible. People given freedom will sometimes behave badly. But so will people given the right to crush dissent. I consider the latter a far greater risk.
It certainly turned out badly back when majority opinion said blacks were inferior and gays were yucky. And it is singular arrogance to believe that, while those idiots in the past were consistently wrong on big moral questions, we ourselves cannot be.
A possible fall-back position is to say people can think something is wrong, and maybe even say so politely. But they may not act as if they believed what they say. Unfortunately, as the Buddhists say, and civil rights marchers knew, “To know and not to do is not truly to know.” A society that praises moral courage in theory but relegates it to a private hobby in practice will be unlikely to find the next generation of Freedom Riders when it needs them.
Urging legislators to water down his state’s law, Arkansas governor Asa Hutchinson said, “This is a bill that in ordinary times would not be controversial. But these are not ordinary times.”
Oh, yes they are. And as usual, we must decide. We can say whatever the majority approves should be obligatory, and if you know something is wrong, go along to get along anyway. Or we can say we disagree with some people’s views and business decisions, but defend to the death their right to hold and make them.
Are those people unworthy of freedom? And are we worthy to take it from them?
Freedom must protect currently shunned ideas and habits or it is a fraud