Comments on Indiana

Setting politics aside to start with:

I’m unsurprisingly a strong supporter of the original Religious Freedom Restoration Act and its state-level counterparts that sought to protect religious believers against state interference of the sort that was legalized by Smith v Oregon.

I’m much more uneasy about RFRA defenses in civil lawsuits between two private parties. There is a lot to be said for having a general, impersonal private law, such that I don’t have to know the identity of the other party in order to know the law that will govern our transaction. I’ve quoted this before in a related context; recall Voltaire’s classic statement of the doux commerce thesis:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

That’s a major, valuable civil accomplishment, and not to be thrown away lightly. If I can’t transact with people on the same terms because each of us is potentially carrying around a religiously-specific contract or tort law, that’s a real loss. I don’t say that a unified private law is required by justice or abstract principle; I’m too much of a pluralist and a multiculturalist for that. But I think we have reason to be very nervous about abandoning it, and reason to treat lightly and deliberately. I do not get the feeling that the trend toward super-RFRAs that extend to private transactions has been adopted with due care.

As to private-sector discrimination, I’m of the view that private businesses should be free to refuse customers, subject to two categories of exceptions: (a) if the firms are common carriers or (in the common law sense) public accommodations rather than ordinary private retailers and (b) in the United States, due to the constitutional and historical distinctiveness of Jim Crow and its melding of public and private discrimination, discrimination on the basis of race. I think the trend to treat bans on private-sector discrimination outside of public accommodations and common carriers as the rule, rather than a unique exception demanded by the unique shape of Jim Crow, has been a serious mistake.

But just because I think that the florist and the wedding-cake baker ought to be free to refuse customers in general doesn’t mean that I think “antidiscrimination statute governing sexual orientation plus highly particular religious exemption” is a good second-best. Sometimes a legal kludge can make for a tolerable compromise. Sometimes when one area of law is broken, bending another can get you roughly where you should be. I’m not at all convinced that that’s the case here. Writing an exemption to antidiscrimination law specifically for Christians who don’t approve of homosexuality is ugly; and the generalized version we see in RFRAs like Indiana’s does damage (the scale of which we can’t yet guess) to the generality of the private law.

Now unbracketing the politics:
A pox on both your houses. There’s a tremendous amount of deliberate and inflammatory misinformation flying around– on one side, as if the IRFRA were nothing but a license to discriminate on the basis of sexual orientation, and on the other as if there were no relevant differences between IRFRA and other RFRAs. (Most state RFRas don’t apply to horizontal suits between private parties; there’s a circuit split on whether to interpret the federal RFRA as so applying, but the statute doesn’t say that it does.)

George Stephanopolous yesterday went after Mike Pence with what he clearly thought was the very clever demand to get a yes or no answer to the question of whether it’s now legal to discriminate against gays and lesbians in Indiana, when
a) It already was; Indiana doesn’t have a statewide ban on private sector discrimination on the basis of sexual orientation (there are city- and county-level laws), and
b) the right answer is not to know the answer, as all RFRAs prescribe a standard for judicial review rather than predetermining answers. It’s up to a competent court to adjudicate whether there is a compelling state interest in preventing discrimination against a particular gay person by a particular conservative religious believer in a particular transaction.

On the other hand, Pence and the bill’s legislative supporters are obviously being disingenuous as hell about the motivation for passing a RFRA with this particular shape at this particular time. It is no secret that, politically, in Indiana, right now, this RFRA is centrally about same-sex marriage. People who have, in the last two years, unsuccessfully defended a ban on same-sex marriage in federal court and unsuccessfully tried to constitutionalize that ban make unconvincing defenders of liberty; they’re just switching legal strategies.

By the same token, and as I’ve said before, the newfound desire for opponents of same-sex marriage to defend pluralism and compromise rings very hollow.

Both of those requirements — compelling government interest, least burdensome means — are open to a considerable degree of interpretation, which is of course by design: That is what allows a modus vivendi to emerge.[…] Gay-rights activism is, just at the moment, very much oriented toward preventing the emergence of any social compromise on the matter of homosexual marriage, which is why tradition-minded florists and bakers, generally conservative Christians, are being targeted for prosecution as enemies of civil rights.

The anti-same-sex-marriage movement during its ascendancy in the 1990s and 2000s was viciously and hatefully maximalist. Imagine the different history of America if conservatives in the late 1990s had energetically supported civil unions provided that they not use the word “marriage,” instead of pursuing the most aggressive and restrictionist DOMAs they could get away with in each context, such that where conservative majorities were strongest even ordinary contractual rights that might seem too much like marriage were prohibited, instead of mobilizing boycotts of firms that offered same-sex couples employment benefits! As it is, their defense of private sector liberty and the pluralism it makes possible is many days late and many dollars short. It kicked in only when, starting in the mid-2000s, the political tide turned.

That shouldn’t change our view of the right outcome; some particular cake baker shouldn’t lose his religious liberty because the movement that’s defending him now makes hypocritical arguments. But it does mean that the violin I hear playing when conservatives complain about the supposedly totalizing and compromise-rejecting agenda of same-sex-marriage supporters is very very small indeed.

Update: Michael Tanner offers some thoughts in a very similar spirit.

  • Chris MacDonald

    I don’t have the competence to explore this myself, but I suspect that if there’s a weakness here it lies in the claim about “the constitutional and historical distinctiveness of Jim Crow and its melding of public and private discrimination”. To someone who is neither a citizen nor a scholar of American politics, it sounds a bit ad hoc to say, “no, race is different.”

    • RKevinHill

      In America, race is different.

      • Sean II

        Yes, but its uniqueness is the target of endless counterfeiting attacks. At any given time, there’s a project going which aims to make _______-ism or ______-phobia a sin on the same level as racism.

        These efforts always fail as a matter of practical politics, but its not obvious why they should. Logic seems to be on the other side.

        I mean, do you want to tell someone like Brandon Teena that his claim to special protection and legal remedy is less than Emmett Till…just because “race is different”.

        That doesn’t sound right.

        • RKevinHill

          Well, at the risk of offending moralists who are overly fond of abstraction, it helps to call attention to the historical fact of abduction, enslavement, the concerted efforts to recreate slavery in all but name after Emancipation, the centurylong success in segregating former slaves and their descendants, depriving them of public goods and public accommodations, depriving them of access to the ballot box, and the long history of informal violence to quash any response to all of the preceding. I think that the people subjected to this probably had their feelings hurt by it, along with having their liberty eliminated or burdened, their political rights thwarted, and, at the limit, their lives taken. But it does not follow that everyone who also has their feelings hurt is therefore also a former slave or descendant of same who, etc. etc. In short, *every* *case* in which someone proposes the analogy must be assessed on its merits *concretely*, and not on the volume with which it is asserted. Especially since *moralizing* is precisely the attempt to affect people’s feelings in order to alter behavior. Race is different in America because blacks were *subjugated*. Show me subjugation that rises to that level and we can talk. As sympathetic as I am to many of the specific plights of specific groups, simply nothing in this country rises or is likely to ever rise, to that level.

          • Sean II

            “Race is different in America because blacks were *subjugated*. Show me subjugation that rises to that level and we can talk.”

            Jews were almost wiped out. The Native Americans even more nearly so. Meanwhile the population of the African diaspora in the South actually grew…a lot.

            Most of the people who ever lived have been slaves. Most have been subjugated.

            Most have also been idiots, which should give you the comfort of being in plentiful company.

          • RKevinHill

            I see.

            I don’t think the United States government was actively involved in the Holocaust. I don’t think Native Americans were subjected to coerced exploitation. I don’t think a 1950s advertisement with a photograph of an attractive woman in it is a rape, and I don’t think that writing a check to the IRS is standing on an auction block waiting for someone to take title to you like an animal.

            The issue, recall, was, were statutes like those in the Civil Rights Act of 1964 justified as a departure from a libertarian baseline. My suggestion is that when enacted, in light of the recency of Jim Crow laws at that time, their purpose and their social effects, CRA laws were justified as *remedial* measures. Eventually the need for remedial measures ends. I think that great strides in eradicating intentional discrimination have been made, though the economic effects of past oppression, exploitation and discrimination persist.

            The final comment is at the very least dogmatic: disentangling the lingering effects of past oppression from other causes would be, I would think, actually quite difficult, in which case jumping to such conclusions really doesn’t tell us much of anything except the speaker’s attitudes. I see now the function of your various remarks and how they fit together: if everyone has been subjugated in precisely the same way that blacks have, and yet everyone but blacks are doing fine now, blacks have no one to blame but themselves for their plight, which is then a sign of their inferiority, either inherent or moral. In other words, you’re telling me that you think that whites actually *are* superior to blacks. It didn’t take us long to get there, did it?

          • Sean II

            What do you get out of such posturing? What does it gain you? What does it gain anyone?

            Certainly not a better understanding of the world, nor a better plan for confronting its problems.

    • jmoser

      Not “race” in general, but specifically the historic position of blacks ought to be treated differently. Most were/are, after all, the descendants of people who were brought to the United States as property, and who until recently were subject to laws requiring that they use separate facilities. In the South in particular, they were virtually powerless economically, so it’s hard to imagine that traditionally whites-only businesses would have voluntarily started serving blacks out of a sense of rational self-interest. As a group, however, gays are not impoverished. If one baker refuses their business, it’s a virtual certainty that others will happily accept it.

      • AP²

        While not impoverished, they are in smaller numbers, which changes the equation – there’s only so much bread a person will buy, even if (s)he is rich.

        I think the case can be made empirically: as the author wrote, discrimination is already legal, so you can simply look and see how much of a problem it actually is (for the cases a law would cover – deeper and subtler discrimination is hard to legislate against).

      • DST

        “In the South in particular, they were virtually powerless economically, so it’s hard to imagine that traditionally whites-only businesses would have voluntarily started serving blacks out of a sense of rational self-interest.”

        White owned businesses already were serving blacks out of rational self-interest. If no white southerner wanted to do business with blacks, there wouldn’t have needed to be laws against it.

        • j r

          That analysis only works if you assume that the white population of the south was more interested in gaining economic benefit than they were in preserving the existing system of white supremacy. Considering the full history of the south, that is not a very good assumption.

          • jtlevy

            Right. The individual white shopkeeper might have preferred to get business from black customers, but not at the price of social ostracism, a boycott from the white community, and/or having his shop burned down in the dead of night.

          • DST

            It’s a very good assumption for quite a few businesses, particularly common carriers. For instance, at issue in Plessy v. Ferguson was the segregation of railcars, which railroads opposed because it was less efficient to have mutually exclusive cars. Again, ask yourself why segregation would need to be legally mandated if everyone was on board.

          • Sean II

            It’s not an assumption. It happened.

            I find it strange that people are responding to you as if they didn’t know that.

            They act like you’re making an a priori claim about how businesses would have behaved toward black customers. In fact you’re making a historical claim about how businesses did behave.

            In order to avoid noticing this, your interlocutors have to evade some obvious facts. Like…the railroad sold Plessy his ticket and backed his suit!!!

        • j r

          The behavior of the East Louisiana Railroad is one historical fact that we know, but only one among many. We have lots more and lots more cases of white southerners doing things that were decidedly against their economic self-interest. The Civil War stands out as the most obvious example.

          None of this should be novel. There has always been a deep strain of anti-commercial agrarianism running through the American south. You can see it in Thomas Jefferson, who wrote “life, liberty and the pursuit of happiness” instead of “life, liberty, and property.” You can see it in the existence of the planter aristocracy and their deep belief in personal honor and chivalry over the more anonymous forms of trust that developed markets demand. You can see it in the formation of private Citizens’ Councils to fight desegregation.

          There are reasons why the south came late to adopting the practices of the industrial economy and those are many of the same reasons why slavery persisted there long after other places had moved on to more efficient systems of labor and production and why Jim Crow persisted into the 1960s.

          • LLC

            We needn’t go back into history to find cases of white Southerners voting against their own economic interest. The South would not be nearly as solid Red as it is if working class Southern voters didn’t do exactly that in favor of a variety of hot button issues, including race.

          • Les Kyle Nearhood

            That sounds a lot like your biases at work rather than an actual point.

          • LLC

            You may have a point. Tell you what; I’ll look at mine if you’ll look at yours.

    • jtlevy

      Well, race is constitutionally different thanks to the Civil War and the Reconstruction Amendments; 14(5) contains a new affirmative grant of power. But I’d also stand by the claim that race is morally different when it comes to the principle “public discrimination is forbidden, private freedom of association is allowed.” Jim Crow deliberately obliterated those boundaries (“no segregation in public schools? OK, we don’t have any public schools, just private academies in the same buildings supported by tax subsidies!”). It used a distinctive combination of public and private terror and violence– the Klan and the local law enforcement agencies that were complicit in it– to prevent private sector integration or nondiscrimination, and moreover imposed discrimination on the private sector (Plessy!) in ways that took root.

      By the 1960s, disentangling whether and when discrimination was public or private would have been mind-bogglingly difficult, and the sustained legal assault that was necessary to break Jim Crow required measures that would not normally be justifiable.

      What I’m suggesting is seeing the Civil Rights Act as the 14th Amendment equivalent of the Voting Rights Act, which is a “breaking Jim Crow is special” application of the 15th Amendment.

      • Les Kyle Nearhood

        the question is whether or not the USA has changed sufficiently since the 1950’s that we can now afford personal freedom. I think we have.

        • Sean II

          The question is also: did all this coercion really do anything good. A sober glance at the past fifty years suggests otherwise.

          1) There was already a strong trend against overt racism. Anti-discrimination laws can hardly take credit for that (indeed, those laws only passed because discrimination was becoming unpopular).

          2) Most victims of such discrimination as still exists are NOT helped by the law. The tort system is too unpredictable for that. Mostly it seems to cause a ton of deadweight loss while, every now and then, arbitrarily making a millionaire out of some litigious adventurer and her lawyer.

          3) Even people who believe the law is necessary must end up making a very odd claim on it’s behalf. Try this on for sound: “I support anti-discrimination law because I believe that every day in America, it helps people gain entrance to a places where they are secretly hated, and in which they can lead lives of awkward alienation. That’s what doing good looks like!”

          • LLC

            Do you really suppose that we’d have an African American president if “all this coercion” really hadn’t done any good?

          • Sean II

            The Obama presidency is not an example of doing good.

            Least of all has it done any good for American blacks.

          • Les Kyle Nearhood

            There is no way of knowing what would have happened without the strong hand of the state at work. but as libertarians we have to assume that it probably would have been at least an agreeable outcome.

      • adrianratnapala

        Npw there are arguments that the CRA had to intervene in private dealings or else nothing would have been acheived. But by talking about the intermixing of government and private racisim you just show that fixing only the government part would have been a big and useful reform all by itself. Moreover, the more interdependent the two were, the more likely that private discrimanation would collapse once the government supports are removed.

    • Sean II

      No need for humility. On this point you’re right and Levy’s wrong. Worse than wrong, he’s being silly. If “because Jim Crow” is the reason to deny people their right of free association, then…

      1) The rule should only compel whites to associate with blacks. Blacks should still be able to avoid whites, eskimos to shun east asians, etc. Jim Crow was an offense committed by one group only, and thus “because Jim Crow” does not supply the basis for a general policy of forced racial association. It does not get us to “race is special”.

      2) The rule should be time limited. There is no reason why “because Jim Crow” should be a warrant to coerce people forever. Vicarious guilt is morally atrocious. Already today, most of the people being forced to associate under “because Jim Crow” were not even alive when Jim Crow was law. Still less are they responsible for it.

      3) The rule should be geographically limited. There was no Jim Crow in, say, Oregon or Canada. There is thus no reason why Oregon or Canada should have to impose a burdensome, intrusive, illiberal policy “because Jim Crow”.

      4) Even if it could overcome these problems, “because Jim Crow” tells us nothing about whether forced association is productive or counter-productive. That question should really be settled before we agree to deprive a couple hundred million people or the right to choose who they associate with.

      A better argument would be: “Race is special because even now in 2015 we have reason to believe blatant anti-black segregation would develop, if allowed by law.”

      There is plenty of evidence for that, starting with the plain fact of residential segregation. Plus this reason has the advantage of addressing the well-being of human beings who are actually still alive, or will be in the future. No “because Jim Crow” vicarious class action tort nonsense required.

  • LLC

    So far, here, we’re looking at whether or not discrimination is legal and whether a particular group is/is not legally protected. But is this even the right set of questions? What say we look at if from a different angle: Is this in fact a legal protection of one’s right to religious freedom? I submit that we are guaranteed to be able to practice our religion, but we are not empowered to force others to practice our religion, and we’re absolutely not guaranteed that we need not be offended by the words or actions of another. My rights stop at your nose. If I’m offended by same-sex marriage, I should definitely not marry a person of my gender. But I have no legal stand to demand that you observe that prohibition – nor to demand that you not offend me by marrying a person of your gender.

    • jtlevy

      But neither of those examples in your final sentence are at stake. The cases at issue are more like: once we accept that you have a right to marry a person of the same sex, does it follow that you have the right to compel people who are in the wedding business– cake bakers, wedding photographers– to accept you as a customer and to provide their services for your wedding?

      Who has the nose in cases like these isn’t obvious– indeed, it’s precisely the question. Does your right to marry stop at the nose of my right not be involved in a wedding the legitimacy of which I deny? Or does my right to stay uninvolved in other people’s weddings of which I do not approve stop at the nose of your right to buy a wedding cake from the baker of your choice?

      • LLC

        And yet, as a wise and temperate man observed, “It
        is no secret that, politically, in Indiana, right now, this RFRA is centrally
        about same-sex marriage. People who have, in the last two years, unsuccessfully
        defended a ban on same-sex marriage in federal court and unsuccessfully tried
        to constitutionalize that ban make unconvincing defenders of liberty; they’re
        just switching legal strategies.” I’ve no problem with merchant who operates entirely in the private sphere declining to do business with someone with whom he feels philosophically out of kilter. When I was in the Ad Agency business, I declined a request from a cigarette company to do work for them.

        • Sean II

          “I’ve no problem with merchant who operates entirely in the private sphere…”

          If a merchant operates entirely within the private sphere, he’s probably not a very successful merchant.

          In a world where cake shops are found to be “public accommodations”, that is.

        • Libertymike

          The right to exclude is within the panoply of property rights. In fact, the right to exclude is a foundational property right.
          If one lacks a right to exclude others, for whatever reason, including reasons of race or sexual orientation or religion or national origin or gender or propensity to be partial to progressivism, one’s property rights are necessarily diminished beyond the right to exclude, including one’s rights to speak, to freely associate, and to operate one’s enterprise free of interventionist parasites.
          Thus, whether for religious considerations or otherwise, one’s right to determine with whom he shall do business does not, in any factual or logical sense, come within shouting distance of an offended LGBT bigot’s nose.

  • RKevinHill

    I suspect that people have mislocated the actual impact. First of all, gay-themed issues will not likely be the primary sphere of impact (regardless of what the Republicans in Indiana thought they were accomplishing). Second, the gay-themed issues will not be about public accommodations *or* about marriage. They will be about employment, if they are ever about anything at all.

    The area where lots of money, lots of religion and lots of law intersect is biomedical ethics. The IRFRA, it seems to me, is far more likely to affect how hospitals, many of which are controlled by religious denominations, deliver their services and conduct research. The Bakery Holocaust, regardless of who one thinks is headed for the ovens, is probably a bit overblown.

    Jacob has already said that before you can get an exemption, there has to be something to be exempt from. The likeliest suspect here is probably employment discrimination. If Indiana were to include sexual orientation with the prohibited objects of employment discrimination, there would likely be a right to private action, and because the IRFRA applies even when the government is not a party, it could be used as an affirmative defense in an employment discrimination case.

    What people may not know, here, is that (1) employers with demonstrable religious convictions are not exactly plentiful (outside of health care), (2) employers almost always win discrimination suits anyway, because starting from the baseline of at-will employment, all you have to show is a non-discriminatory reason, not a *good* reason, for the employment action, and (3) discrimination statutes usually have religious exemptions already built in (e.g.Title VII, a part of the Civil Rights Act, does).

    Misleading and inflammatory indeed.

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  • Me10

    “By the same token, and as I’ve said before, the newfound desire for opponents of same-sex marriage to defend pluralism and compromise rings very hollow.”

    But it’s not defending pluralism, compromise, etc. It’s defending essentials of the First Amendment, essentials that have been under assault from the administration, progressive, activist jurists, and other likeminded souls seeking political outcomes that are compromised by the Constitution. There’s no doubt this is a redoubt action, but it’s largely inspired by judicial overreach, whereas democratic and/or legislative action would likely have produced a more balanced change, with less room for maximalism on either side.

    I also think this otherwise thoughtful analysis is sullied by the description of traditional marriage laws as “hateful” and “maximalist.” Those laws were not passed maliciously. They were a response to early political momentum for SSM.

    And as to maximalism and the hypothesis that an early move towards civil unions/domestic partnerships (my preferred compromise) might have changed the outcomes, we have the example of California to go by. The state passed an all-but-marriage-in-name domestic partnership law, one that gay rights activists described as the end game for California. Instead, it was the lever used to take SSM to the state supreme court under an equal protection claim.

    If, as is likely, SCOTUS prescribes SSM for the nation at large this year, the principled religious values will not change (as opposed to actual bigots, who will simply modify their behavior as needed), and those religious beliefs will still be protected by the Constitution. This is just the end of one act in a long drama yet to play out.

    • Farstrider

      There is no daylight between “principled religious values” and “actual bigots.” You are no less a bigot if your bigotry is motivated by religion.

      • Sean II

        Right. I find it hilarious to see people holding up signs that say “Bigotry is not a Religion” or “Religion is not Bigotry”.

        Respectfully disagreeing are…most of the religions that ever existed and most of the bigots who ever lived.

        • Libertymike

          Yeah, if by religion you mean statism.

  • Sven BornFree

    If I’m selecting someone to do business with, it would be helpful to get an idea as to who genuinely would have my best interests in mind. One way to gage that is whether or not the people behind the business even likes me or not for whatever reason. If the person(people) in the business don’t like ‘my type’, it would be in my best interest to know that so I can go somewhere else. Because it is against the law for them to say that therefore the smart ones won’t do that. My starting to do business with them without this knowledge (beyond their control) puts me in a position of compromise. If a restaurant is forced to do business with me, despite not liking my type, they probably won’t put poison in my food. But they can wait a really long time to serve me. Wasting my time in addition to theirs. Discrimination laws don’t change hearts and minds. They only promote dishonesty.

    • LLC

      While they may not put poison in your food, they may well spit In your soup.

  • JohnThackr

    “The anti-same-sex-marriage movement during its ascendancy in the 1990s and 2000s was viciously and hatefully maximalist.”

    Well, yeah, duh, that’s what movements in their ascendancy do. People who couldn’t imagine being part of the minority (or having the minority be part of their political coalition) gain a much greater appreciation for it. (See also how positions on free speech shift for most depending on who has the power.)

    In the reverse, the ascendancy and success of the pro-same-sex-marriage movement is naturally causing their activists to be viciously and hatefully maximalist as well. (See also nuns and abortion and contraception.) Given that I entirely assumed that this result would happen– as it nearly always does– would it have been appropriate to have less sympathy for the pro-same-sex-marriage movement simply because they were going to inevitably overplay their hand? Not really. (I don’t think that the temporal objection holds, since it’s not always the same people in the past either; the basest majoritarians who most want to impose uniformly today’s values I assume hold today’s values, and shift with the times the most.)

    • Les Kyle Nearhood

      Here I agree with you. And it is a problem for the libertarian movement in one sense. We ally ourselves in some cases with the right, and in others with the left. The right has not had many victories of late. But the left (at least the modern day left) has proven to be resentful, totalitarian minded, poor winners.

      • NDaniels

        From a Christian perspective, it is important to note that salvation for me, but not for thee, would not be consistent with The Way, The Truth, and The Life of Love. A Libertarian view would not be consistent with Christianity. Salvational Love is personal and relational.

        “No one can come to My Father, except through Me.”

  • JohnThackr

    I do generally agree with your approach. The law should not treat “choosing one of many florists in a big city to design a custom arrangement / photographers to take pictures for your wedding” the same as “needing a place to stay and there’s only one hotel for 20 miles.” I think in practice RFRAs do accomplish this, though, from looking at actual cases, even if a categorical restriction of public accommodation might be better.

  • Mr-M

    “if the firms are common carriers or (in the common law sense) public accommodations rather than ordinary private retailers”

    Question: what exactly is distinct about the common law definition of public accommodations? In Title 42 of the US code, the term seems to be defined so broadly as to include pretty much any private establishment.

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  • NDaniels

    Slavery, “Jim Crow”, abortion, and redefining man as an object of sexual desire/orientation, all were/are unconstitutional, because they deny personhood by objectifying the human person, who, from the moment of conception is a son or daughter, worthy of being treated with Dignity and respect in private as well as in public.

  • NDaniels

    When serving the general public, including those persons who desire to recognize the equality of consensual sexual acts and sexual relationships, no person can be coerced into engaging in or
    condoning any act that would violate a tenet of their Faith, thus it is not necessary nor is it proper, when serving the general public in any capacity for an individual or group of individuals to violate a tenet of their Faith, including the fundamental tenet of both The Jewish and Christian Faith, that God Is a The Author of both Life and Marriage.

    It is not unjust discrimination to recognize the self-evident truth, that only a man and woman can exist in relationship as husband and wife. Once a State. removes the necessary requirement for a marriage contract, which is the ability and desire to exist in relationship as husband and wife, that State no longer has the capacity or the authority to pronounce that a man and woman have been joined together as husband and wife. P cannot be not P

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