Politics & Policy

Freedom of Association Is Burned at the Stake in Indiana

Are we prepared to handcuff a feminist photographer who won’t take pictures at a strip club?

The only identifiable victim of Indiana’s new Religious Freedom Restoration Act is the First Amendment’s Freedom of Association clause. Like Joan of Arc, it has been burned at the stake.

In the name of nondiscrimination, Republican governor Mike Pence has surrendered to the angry mobs that erupted like the Sandinistas’ turbinas divinas. Despite RFRA’s similarity to a 22-year-old federal statute and laws in 18 other states, liberal activists and journalists have distorted Indiana’s measure into an alleged anti-gay hit list.

It never helps that laws like this one focus solely on the rights of religious people. As vital as religious liberty is, what about the rights of the 25 percent of Americans who have no faith? The safe harbors that these laws attempt to dredge should not, themselves, discriminate against nonbelievers.

The sorts of freedoms shielded by Indiana’s new law — and nearly identical pieces of legislation heralded by the ACLU, signed by President Clinton, and supported by Obama in the Illinois state senate — should be protected for all Americans, be they religious, agnostic, atheist, confused, or otherwise. Freedom of Association belongs to all Americans, via the First Amendment, not only those who happen to be religious.

What if you are an atheist who really objects to gay marriage? Must you still bake cakes for gay weddings, or will pro-shariah Muslim bakers be the only ones who can walk into court and ask to be excused from doing so?

The oft-screamed battle cries of liberals, feminists, and gay-rights activists vividly illustrate the implications of what Pence’s critics demand.

If every business in Indiana must do business with everyone who walks through the door because, as Pence said today, “this law does not give anyone the right to discriminate,” then:

• Do we still respect a woman’s right to choose not to bake a cake for a gay couple?

• Do we respect a woman’s right to choose not to take photographs at a Christmas party at a men’s club because she is a feminist who deeply loathes all-male establishments?

You Might Also Like: “MSNBC’s Ed Schultz Cuts Off Guest’s Mic During RFRA Debate”

• Do we respect the rights of groups of women to choose to enjoy the sisterhood of a women’s club where they need not cope with men?

• Do we respect the Junior League’s right to choose to remain a female-only group, as it has been since 1901, or must they now accept male members?

• Do we respect a lesbian bar owner’s right to choose to post a No Men Allowed sign in her window because her customers want to enjoy their all-female company in peace and don’t want to associate there with a bunch of hairy dudes with Adam’s apples, brawny shoulders, testosterone in their veins, and penises in their pants?

• Do we respect a gay merchant’s decision to tell a heterosexual couple to stop making out inside his club full of gay men who could live without such a spectacle while meeting other gay men?

“Bake this!” — Can a gay baker just say no?

• Do we respect a gay baker’s right to choose not to bake a cake for the Westboro Baptist Church with icing that reads God Hates Fags?

• Do we respect a fundamentalist Muslim baker’s choice not to bake a cake for a bar mitzvah because she really is not crazy about the Star of David?

• Do we respect a black jazz band’s choice not to perform at a Ku Klux Klan chapter’s “Negro Minstrel Show”?

• Do we respect a pro–gun control photographer’s right to choose not to snap pictures at a Sharpshooter of the Year banquet organized by the local chapter of the National Rifle Association?

You Might Also Like: “Indiana’s Law Is Not the Return of Jim Crow,” by Jonah Goldberg

• Do we respect a vegan woman’s right to choose not to bake a cake for the Indiana Pork Farmers’ Man of the Year dinner?

• Do we respect a Jewish calligrapher’s right to choose not to produce hand-written invitations for a Hitler Day brunch organized by a local neo-Nazi group?

If these examples sound absurd, are they really that much crazier than a gay couple’s demand that an evangelical Christian baker produce their wedding cake against her will, when other bakers are eager for their business?

Also, it is crucial to remember that behind each of these scenarios lies something deadly serious: a gun.

Government equals force. Its ultimate authority stems from its ability to use coercion or blunt force to deprive lawbreakers of their freedom. Why, ultimately, do people pay their taxes? Funding schools, courts, and atomic submarines has its charms. So does staying out of jail. As George Washington reportedly said: “Government is not reason, it is not eloquence — it is force. Like fire, it is a dangerous servant and a fearful master.”

#related#So, the real question in each of these cases is: 

• Do you support the government’s use of coercive police power — up to and including fines, arrest by armed police officers, and imprisonment — because you reject a woman’s right to choose not to bake a cake for a gay couple? 

• Do you support the government fining, handcuffing, or incarcerating a gay baker because he refuses to bake a cake that says God Hates Fags?


In the public sector, the government must administer equal justice under the law and treat all Americans equally. Thus, the anti-gay discrimination of Don’t Ask, Don’t Tell deserved to end. Likewise, conservatives such as Ted Olson and I believe that government should not discriminate against gay couples when handing out marriage licenses. (Obviously, other conservatives disagree.)

The private sector, such as it is, is something different. Private individuals on private property should be free to associate with whom and without whom they wish. Just because someone runs a business or is part of a private group or organization does not mean that she surrenders her rights or becomes a mere appendage of government.

You Might Also Like: “In Defense of Indiana,” by Rich Lowry

At least that’s what the First Amendment says — such as it is.

Freed of most restraints against government action and populated by citizens increasingly oblivious to this nation’s founding principles, America is slouching into tyranny. Little by little. Day by day. This is incredibly depressing. And to see gay people lead this charge into bondage may be the saddest sight of all.

— Deroy Murdock is a Manhattan-based Fox News contributor and a media fellow with the Hoover Institution on War, Revolution, and Peace at Stanford University.

Deroy Murdock is a Manhattan-based Fox News contributor and a contributing editor of National Review Online, and a senior fellow with the London Center for Policy Research.


The Latest