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Legalized Discrimination in Indiana

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Indiana’s “religious freedom” bill is a good example of something that should never have had to happen.

As I understand it – and I’m not a lawyer, nor do I live in Indiana any more, so I’m mostly seeing the aftermath of rage – it says that a business has the right to refuse to serve someone on religious grounds.

It’s Indiana SB 101, if you want to read what it actually says; as I understand it, it prevents the government from “substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the governmental entity can demonstrate a requirement otherwise.” It also “prohibits an applicant, employee, or former employee from pursuing certain causes of action against a private employer.” (Emphasis mine.)

This means that a baker can refuse, on grounds of religion, to make a cake for a homosexual couple’s wedding. It also means that a kosher deli can’t be sued just for not being halal, if a muslim desires to work there. It also means that someone could refuse to serve black people, presumably if there’s a demonstrable religious reason for doing it.

What we’ve seen of humanity so far is that someone will definitely be able to come up with a “demonstrable religious reason” to discriminate based on … almost anything, because people are inventive even if they’re stupid.

I think this bill is intended to mean that a minister of a conservative church can’t be forced to marry a homosexual couple, for example.

Naturally, a lot of social communities are up in arms about it. And they probably should be! A bill like this creates amazing potential for abuse.

But what was expected, really?

The reason bills like this are introduced is because of ineffective social activism. Someone in group “A” acts in such a way that group “B” thinks is bigoted – for example, someone in group “A” decides that making a cake for a homosexual wedding is not something they want to do. Group “B” thus decides to force the issue, claiming illegal discrimination.

Group A thus has a limited set of possible responses.

  • They can violate their own ethics by caving to the social pressure.
  • They can decide that the “unethical action” is an acceptable loss – something they should do despite their misgivings.
  • They can dig in their heels and defend their own freedom and rights.

The thing is: group B – the one forcing the issue – might be right; it might be illegal (well, illegal based on prior law, I guess) or unethical discrimination. Thus, they’re choosing to be social actors. This is what gave us integrated schools and lunch counters, after all, and discrimination represents an unpleasant set of memories for me, personally.

But then again, they might be wrong.

Demanding integration for public transportation and schools is entirely ethical – our government definitely has no right to refuse service based on the color of someone’s skin, or their sexuality, or their religion, or even their politics.

But when someone owns a private business, do they have the right to refuse service to anyone? If so, where is that line drawn? This bill says that it’s drawn on the side of the freedom of the business – they get to choose, even if that choice seems wrong to someone else.

And it should be up to the business! Otherwise, they could conceivably be forced to serve clientele who renege on the social contract between consumer and provider – imagine someone writing a series of bad checks to a business, then suing because the business doesn’t want to serve them any more.

Of course, with this being Indiana, chances are the one writing bad checks would win such a suit. I’m unimpressed by Indiana’s understanding of law.

This is not to say that I think discrimination is right – discrimination is wrong, in the general sense being used here. The problem here is that discrimination is being sought out, and then used as a basis for activism, which means that people who aren’t comfortable with a course of action on ethical grounds is being confronted often with that course of action. They’re being asked to endorse something that they feel they cannot ethically endorse. Again, they can cave, or change, or resist.

In most cases, changing is best; for example, I would think it would be a better ministry for a Christian bakery to make a cake for a homosexual couple’s wedding than to refuse, but that’s something that each bakery would need to address. If the couple is aggressive about desiring a cake – well, I’ve heard horror stories from friends who were chosen simply because of the ethical position it would put the bakery in.

In other words, the couple didn’t care who made the cake, really, but chose a bakery solely for the conflict. Again, this is someone I know.

The Senate summary says that the government can demonstrate a requirement otherwise, so one would hope that there’s a legal barrier to outright discrimination. I’d almost rather, though, that people applied social pressure instead; imagine people of all skin colors avoiding a business that said “We don’t serve black folk at this here counter.”

The business has a right to decide who it will serve; the people it would serve have a right to decide not to frequent that business, and think of the massive opportunity such a declaration gives a competitor! Ricky Randy’s Racist Restaurant won’t serve none o’ them black folk? Well, what about Jimbo’s Restaurant one block away, which has no problem serving those two gay African American gentlemen, who get to sit right there in that nice window booth?

Eventually, Ricky Randy’s will have to explain to all of the empty seats that they might have to close them there doors for good.


It turns out that some of the conventions that Indianapolis appreciates might avoid Indiana, because of this law. Do I have an opinion on that?

Sure: I’m neutral. The convention has every right to avoid Indianapolis because of this; it’s a private entity, and thus has the same right the Indiana House has granted to other private entities in the state to refuse to serve Indiana. (See the irony? They’re protesting, using the same right that Indiana is demanding that everyone be granted.)

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