The Corner

Law & the Courts

Some Thoughts on Indiana

1. Why is it okay for Apple to refuse to facilitate, or associate with, a view of marriage that it rejects but not okay for a local florist (or photographer or baker) to do so?

To be clear, I’m very inclined to support Apple’s right of refusal, but, insofar as distinctions are to be drawn, considerations of market power cut against it and in favor of the local florist. In other words, the organizers of the Manhattan Declaration had no available alternatives that were as effective as an Apple app in obtaining signatures in support of their declaration. By contrast, anyone seeking services in connection with a wedding will typically have plenty of providers to choose from.

2. I don’t believe that Apple engaged in discrimination against Christians as such in rejecting the Manhattan Declaration app. It surely supports lots of Christian apps. It was objecting to the Manhattan Declaration’s understanding of marriage. Similarly, I don’t believe that a florist (or photographer or baker) who serves gay customers in her everyday business can fairly be said to be discriminating against gay customers as such when she refuses to enlist as the florist for a ceremony that she believes would have her endorsing a false idea of marriage. (One problem with the wooden anti-discrimination norm is its inability to allow for sensible distinctions.)

3. For all the fuss over the Indiana law, any protections that it might provide to my hypothetical florist are highly uncertain at best. That’s an inherent downside of a RFRA law: it’s left up to judges to determine whether the government has demonstrated that the substantial burden that it is imposing on a religious objector furthers a compelling governmental interest and does so via the least restrictive means.

I would much prefer that a legislature spell out specific protections. That approach would make clear exactly what is at stake, and it would prevent the absurd parade of horribles that RFRA opponents eagerly trot out.

4. The huge news (at least for those who hadn’t been paying attention before) is progressivism’s repudiation of American liberalism’s embrace of religious liberty—a repudiation that has left one old-time liberal wondering where all the other liberals have gone. So far as I’m aware, no one on the Left has taken issue with my answers to Ross Douthat’s seven questions about where progressivism’s animus against religious liberty threatens to take this country.

5. As law professor Richard Epstein has been arguing for decades, “Competitive markets with free entry offer better and more certain protection against invidious discrimination than any anti-discrimination law.” Bans on private racial discrimination were necessary to shatter the racist regimes of state-enforced segregation. But the extension of the race template to other bases of discrimination has happened without any serious consideration of competing costs and benefits, including to the putative beneficiaries.

For the sake of this country’s future, let’s hope that Epstein’s libertarian insight triumphs over the progressive urge to have government micro-manage everything (and over the progressive blindness or indifference to the costs of statism).

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