The Federalist by Richard A. Epstein
APRIL 2, 2015
The Hoover Institution’s Richard Epstein argues that critics of Indiana’s Religious Freedom Restoration Act are the ones using force in an inappropriate fashion.
Troy Senik: Richard, there’s been this huge outcry, this firestorm of media coverage during the past week over a new law that came out of Indiana just signed by Mike Pence, the Republican governor there. The law is called, “The Religious Freedom Restoration Act” which is the name that it shares with a piece of federal legislation from the ’90s. The criticism of this bill in the press and from the critics has been that it is a vehicle by which all kinds of discrimination is going to be allowed in Indiana essentially under cover of religious liberty. Why don’t you just, we’ll set aside the rhetoric for a moment and you just give us the brass tacks on what this law means and what it actually does.
Richard Epstein: Yes, well the law in effect is relatively narrow in terms of the way in which it’s drafted. It says in effect that the extent that somebody’s core religious beliefs are offended by being forced to do or abstain from certain kinds of acts, he in effect is allowed to do those acts, unless the state can demonstrate a compelling state interest into why this ought not to be allowed. This was the formulation that was used in the 1993 Federal Religious Restoration Act and that decision was passed in response to a case called Smith against Oregon, in which the issue was whether or not an Indian tribe member who smoked peyote as a religious ritual could be denied unemployment benefits and the smoking of peyote was a criminal act, even though nobody enforced it.
What happened is it was challenged on the grounds that it had a disparate impact on people with that religious view. Justice Scalia said so long as it’s a general law of applicability to all persons at all times, it was constitutional under the Free Exercise clause. This was a radical transformation of the previous understanding, which said that when statutes had disparate impact on people with religious applications, accommodations of a reasonable nature had to be made. The old cases that one talked about was could the Army have issued pork to everybody required Jewish soldiers, or Muslim soldiers to eat it? Under Smith, the answer is yes, and to virtually everybody from the Civils Liberties Union on the one hand to the religious organizations on the other, it was no.
I have long written that when Justice Scalia’s opinions come to be evaluated, this will be regarded as a major, colossal blunder. One of the reasons for which this in fact will be the case, is really very simple. It has provoked this endless effort to correct a problem which didn’t exist until that decision was written. Under this particular statute, in order for a fundamentalist couple to deny service to a gay, they would have to show that doing business with gay people is essentially in violation of their religious beliefs. No gay person in any of the cases that has come up has ever made such an extravagant claim because it would be false.
All of the cases that we have are those which are concerned with wedding rituals in which the arguments made by the fundamentalist couple is that the bible defines marriage as a union between one man and one woman. Gay marriages, lesbian marriages don’t mean that. We cannot be called in to assist. Most of the people who file the complaints don’t want their services anyhow, but they refer it to a civil rights commission or a human rights commission within the state, which then imposes heavy fines on the individuals and tells them, in one case for example, in Colorado, that you need to be reeducated in order to make sure that you don’t have the wrong beliefs.
In other cases they make it very clear if you want to stay in business generally you have to serve everybody for everything or you will be subject to fines and essentially driven out. This statute was designed to counter that.
In other cases they make it very clear if you want to stay in business generally you have to serve everybody for everything or you will be subject to fines and essentially driven out. This statute was designed to counter that. The descriptions of it reached by its opponents are over-broad and semi-hysterical and deliberately so. That’s what makes this whole outburst so distressing, is that they don’t want to start with the statute and then debate its merits, ask what has changed from 1993 to the present. What one does in effect is to give it the broadest possible construction and then give a parade of horribles, none of which have ever occurred.
Troy Senik: Richard, you mentioned a moment ago, in describing this law, the need for the government to show a compelling state interest when it’s placing an imposition on religion. How has that been defined in the courts? What does that mean when we talk about a compelling state interest?
Richard Epstein: Well, it’s a subject of enormous dispute. If you go back and look at the recent Hobby Lobby case, there was a clear division of opinion on this. It turned out that as far as the liberals were concerned, the compelling state interest means anything which will essentially provide contraceptives to women. What happened is the Alito opinion refused to join on that issue and simply said that even if that is a compelling state interest there are other ways to satisfy it which doesn’t require that you force Hobby Lobby or other religious employers to provide this. This is something which I think is a very dangerous trend today, which is that the older definitions of compelling state interest were in effect things that verged on national necessities of one kind of another.
The state had a compelling state interest in secrecy if what one wanted to publish was the schedules by which military transport would be shipped overseas, the theory being they could be shot down by our enemies, but the Pentagon Papers, which talked about the intellectual evolution that led up to the involvement of America in the Vietnam War, or protecting those was not regarded as a compelling state interest.
In terms of racial segregation, the traditional view was that you could keep black and white prisoners apart if it turned out they formed gangs that would kill one another, but nobody would ever have thought that you could sort of have majority/minority districts. That is, districts in which the majority of its members were minority citizens, until this recent Supreme Court decision in the Alabama Black Caucus case, which essentially just took it for granted that maximizing black votes in the political process now counts as a compelling state interest.
If you define the term that loosely, then in effect securing services for weddings in competitive industries from fundamentalist Christians would count as a compelling state interest and the Legal Restoration Act would count for naught. I don’t think anybody in the history of the federal statute has ever given it that kind of definition. Now, what’s really happened is that there is now a kind of a new-found authoritarianism, a virtual totalitarianism where it is now just treated as the New York Times said this morning in one of its misbegotten editorials, that anybody in effect, who harbors views on same-sex marriage that don’t hold to the party line is ipso facto a bigot. That’s very strong language to use about large numbers of people in a country in which sentiments on gay marriage are actually divided.
My libertarian instincts, I think give you the right lead, is you don’t want the state, which has the power to license marriages, to ever be able to block it on the grounds that it’s a same-sex couple, but by the same talk, you don’t want the state to be able to force people into associations that they don’t want to have, and indeed my own view is that the public accommodations laws, which everybody treats as sacred text, are properly applied to monopoly institutions, but where competitive services are easily available. There is a huge market out there to provide services for gay weddings and so forth, forcing the lonely dissenter to toe the line, is in fact a form of sharia, only it’s a kind of an orthodoxy imposed by the left, not by the religious groups, which in this case are isolated, discreet and weak minorities.
Troy Senik: You bring up sharia. That’s something that a few critics of this law have used in moments of probably hyperbolic flight, but one of the more serious, I guess, versions of that criticism is you have people say, “Look, this is the thin end of the wedge. When you do things like this, you run the risk of setting up this sort of parallel system where people can opt out of all kinds of generally applicable laws based on their religious beliefs.” We’ve talked a little bit about this in the past. I know you think that’s over-broad, but can you give us a sense of legally where those lines are? What can you get exempted from based on your religious beliefs and where does it stop?
Richard Epstein: Well, look. The first thing you have to do is to show that the beliefs that you have are religious. That means they have to be basically pretty consistent with some kind of group external to the south. There are no one-man or one-woman religions that are completely ad hoc. My religion allows me to kill people, my religion requires me not to pay taxes and so forth. If you look at standard Christian doctrine on this stuff, the basic view is one of general tolerance with a certain kind of selectivity with respect to marriage. I think that the only way you can get any standard Christian or Jewish religion to deal with this is in stuff that deals with essentially religious rites, which would be birth, marriage and death essentially, or adoption and so forth.
If, for example, under the [inaudible 00:09:11] statute, if somebody came through and said, “Look, I don’t like to serve gay people because I think their lifestyle is inconsistent with what I believe to be appropriate,” that would not count as a religious belief any more than it would be if somebody refused to serve a heterosexual couple living together before marriage. The interesting point is you do have to draw these lines under these statutes, but if you look at it, two observations become pertinent.
One is, this thing has been federal law now for over 20 years and these cases have not moved an iota beyond the kinds of cases that I’ve talked about relating to religious rites and ceremonies. The Hobby Lobby case essentially being the outer limits of what people have claimed. To assert that somehow or other going forward the identical statute will be read in a fashion which is antithetical to the federal statute and to the spirit in which this thing is drafted, I think is just wrong.
The other point to make is I don’t like making these distinctions myself. It seems to me that the correct attitude is one which will drive the current class of gay advocates absolutely bananas, but I have long been opposed to the imposition of title two obligations of service on firms that operate in competitive industries. Historically, the rules on discrimination were a counterweight to monopoly power and everybody said rather than trying to figure out how you draw the lines as to what is or is not a good reason for turning somebody down in these kinds of industries. Let the people who don’t like it go elsewhere and express in public their distaste with the people who provide services the other way.
The real people who are using force in an inappropriate fashion are at this point the rather intolerant people who are taking after these small groups. They ought to back off and leave them in peace.
This then gives an answer to people like Tim Cook. I assume that if somebody would have put a gun to the head of the president of Apple and said, “Look, we want you to serve gay customers or you’re going to have to go out of business,” that would not be a particularly coercive threat. If this statute were passed every firm in Indiana that wants to make clear that it serves all gay couples under all circumstances could do so by simply making an announcement to that effect. They don’t have to put it on their website. They could sign a huge ad and so forth, they can post bonds one way or another.
That is, you don’t have to coerce the individuals who are a tiny minority in order to express your beliefs. You can simply announce your beliefs and bond yourself to it. I can assure you this. Nobody who thinks that any major American corporation today has the slightest interest in forming an alliance with the cake makers and the small photographers and the bead makers and so forth, who have been subject to this government action. As Cook said in his own editorial, CEOs understood that discrimination is a very bad fact for business. If they know it’s a bad fact, they don’t have to be told by law that they can’t discriminate, when they have no desire whatsoever to do so.
It’s nice for somebody like Cook to say, “Gee, compel me to do exactly what I want to do, and that allows me to compel other people to do exactly what they don’t want to do.” I would just hope the man would reflect a little bit to realize that he has exceptionally strong totalitarian and authoritarian instincts and that the long tradition in America has always been to give special solicitude for those people who cannot protect themselves in the political process, the so-called discreet and [inaudible 00:12:25] minorities. That’s not today in America the gay community. That turns out to be these ragtag small fundamentalist Christians who are outgunned and outnumbered in most of the communities in which they work.
If you’re trying to figure out where the legal protection goes, it goes to them. It doesn’t go to those people who essentially are a roaring tiger. If any gay person wants to come up today and to announce in a place like New York or in Washington or in large corporate culture that they are basically pariahs, then in effect they simply do not understand the enormous shift. I have no reason whatsoever to want to oppose this. I will state to the public that I’m a rather weak, non-practicing Jew. I am certainly not a fundamentalist Christian.
I’m not trying, as it were, to protect my own group, but I think that toleration is extremely important, and you don’t tolerate those things that you hardly agree with. You tolerate practices by other individuals that you disagree with so long as they don’t pose a threat to the realm. Whatever you want to say about the Christian baker or the Christian photographer and so forth, they’re not threatening to kill people. When they are compared to Nazis or to other kinds of totalitarianism, folks don’t understand the enormous difference between a refusal to deal on the one hand in a competitive industry and the willingness to bring the boot down against the back of another individual.
The real people who are using force in an inappropriate fashion are at this point the rather intolerant people who are taking after these small groups. They ought to back off and leave them in peace. The tragedy is that we even need this kind of statute. Before the movement became so strong, nobody would ever have raised an eyebrow about these issues. It’s the human rights commissions, the one in Colorado in particular.
It was just ghastly in the way in which it dealt with these things, which is trample over religious liberties, trample over First Amendment rights because they are so sure they know it’s the right form of social behavior that they’re willing to reeducate other people. That’s what Chairman Mao did. That’s what Joe Stalin does. That’s not the kind of thing we want in the United States. We don’t need reeducation. We need freedom.
Troy Senik: What about the politics of this? I remember when we had a similar controversy a year or two ago in Arizona. You were then, as here, sort of sympathetic to the underlying principle, but you essentially thought that it wasn’t right, that they didn’t handle it correctly. What do you make of the politics here and how this has been handled in Indiana?
Richard Epstein: Well, it’s been handled badly. I think what happens is somebody like the mayor or the governor of the state really has to understand what’s going on in the statute so he can defend it in an articulate fashion. When he says, “God, I see all these objections. We’ll have to modify the statute,” I don’t think that’s the right answer. I think the right answer to him is to point out what the statute in fact says and to indicate that the horribles have never taken place under the federal statute and there’s no authorization for them here in the way in which things start to go.
To the Democrats, of course, it’s a field day. They’re trying to rally their base, to get contributions, to show that the Republicans are in effect [inaudible 00:15:31] the lines of the worst order, that really this is a subterfuge for their innate bigotry with respect to the way in which they behave. You talk to any of the people who are involved in this, and if somebody came forward and says, “I don’t want a wedding cake. What I’d like to do is to have a cake for a farewell party to my friend.” They said, “Do you want it in chocolate or vanilla?”
You’re talking here about taking one one billionth of the transactions inside the state and making them a cause celebre to attack a law which should never have been needed in the first place. America was in a very comfortable equilibrium. When it passed title to, and didn’t enforce it particularly seriously. The reason it was was because there was such a strong adherence to what the norm contained, that nobody really wanted to fight it.
What happens is you have to believe in freedom of association both ways. If somebody doesn’t want to serve somebody in a competitive market, let it be. If it turns out two people want to get married and they’re of the same sex, let them do it.
Then, when you try to go from 99% to 99.999%, you finally run into real resistance, and you provoke essentially a religious war over what should be simply a situation in which the majority backs off and says, “You know, if all they’re doing is not giving wedding cakes to gay and lesbian couples, we can live with that.” If they start going out and trying to ban the relationship, which they’re not trying to do, then we got another thing coming. What happens is they basically assume that these religious groups have the same kind of political power and dominance that they had in a different incarnation 60 years ago when gay relationships were routinely criminalized under state law.
Troy Senik: Final question there then. Is there any chance that you see on the horizon that we can return to that equilibrium that you mentioned a moment ago or is this sort of a last gasp for people who care about freedom of association or religious liberty?
Richard Epstein: The answer is it’s going to be a titanic struggle because the gay issue itself will not, I think, be the focal point of that. The religious liberty issue in connection with Catholic and Protestants and other fundamentalists, on such things like abortion and Hobby Lobby, those issues are not going to go away. There’s only one way in which you can do this and that’s to back off the anti-discrimination laws and to stop describing as coercion activities by individuals who don’t want services that other people insist that they provide them with.
Right now what happens is coercion is what’s done by bad people. It’s not the threat of the use of force or the exercise of monopoly power which are it’s appropriate definition. I think you have to get the conceptual stuff correctly. If you don’t, then we are in basically permanent war mode in the United States. What will happen is the religious groups will say, “You know, if you really want to do this, then maybe we should keep gay marriages banned,” which would be a terrible thing to do.
What happens is you have to believe in freedom of association both ways. If somebody doesn’t want to serve somebody in a competitive market, let it be. If it turns out two people want to get married and they’re of the same sex, let them do it. In fact, the question I always ask the gay and lesbian advocates, why are you guys against basically the standard forms of polygamy? They never have a good answer. The political answer is that the demand for polygamy is relatively small. It’s a discreet insular minority mainly of Mormons, or it used to be of Mormons that practice it, so we can beat them all up.
In fact, the logic in the two cases is the same and what we have to demand of people is a reflective equilibrium where they think about their positions instead of doing it. The great tragedy of listening to people like Tim Cook at Apple and so forth, is his expertise on these subjects is between slim and none. He ought to stick to making computers and I’ll try and stick to talking about the law and the world will be better off of each of us, as deals in areas in which we can actually claim some credible expertise.
This constant movement of celebrities and big business people and so forth into being kind of intellectual giants and so-called, it doesn’t work. Academic distinction is a merit good. You have to earn it. Wealth doesn’t get it for you, CEO power doesn’t get it to you. You have to be able to think clearly and to write forcefully, and unfortunately that’s not something in which Tim Cook is an expert.
This piece first appeared at Hoover Institution’s Defining Ideas blog and is reprinted with permission. Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.