Indiana’s newly-passed Religious Freedom Restoration Act (RFRA) and the controversy surrounding it have dominated headlines this week. Indiana Governor Mike Pence and the RFRA legislation he signed have been excoriated in the media based on fears that the law will “legalize discriminations against gays.”
However, while three Indiana cities have laws prohibiting business discrimination on the basis of sexual orientation (Bloomington, Indianapolis and South Bend), the state itself has no such law, meaning that most Indiana businesses are already free to refuse service to gays.
Despite what the brain-dead liberals calling for boycotts of Indiana would have people believe, this law will not lead to businesses across the state refusing service to gays. The Religious Freedom Restoration Act (similar versions of which exist at the federal level and in 19 other states) only prohibits the government from “substantially burdening” the free exercise of religion unless it has a “compelling interest” and can do so in the least restrictive way.
(Indiana’s RFRA also allows religious freedom to be used as a defense in private lawsuits. So, theoretically, a florist in Bloomington who is sued for refusing to provide flowers for a same-sex wedding could offer an RFRA-based religious freedom defense.)
But even if the RFRA did legalize private discrimination against gays or any other group, why would that be controversial? If I own a businesses, I should be able to refuse service to anyone I want, and for any reason. That’s freedom of association.
Certainly, I would never turn away a customer or a prospective employee simply because of some arbitrary characteristic like sexuality, race or religion. I detest bigotry in any form. However, I also support the right of others to engage in behavior that I personally find abhorrent, whether it’s joining the Ku Klux Klan, protesting outside abortion clinics, or discriminating against gays.
In a free market, discriminatory firms pay a price for their discrimination. Businesses that turn away gay customers are going to lose those customers and their friends to more gay-friendly businesses. Similarly, employers who care more about their employees’ sexuality than their job qualifications will lose qualified gay applicants to non-discriminatory firms. Not only that, but businesses that discriminate will likely face a backlash that could include not only negative online reviews but boycotts and loss of contracts.
Considering the potentially enormous economic costs of discrimination, only the most committed homophobes will refuse to do business with gays, even in the absence of laws protecting gays from discrimination. (And, as we have seen, small mom-and-pop stores are the businesses most apt to discriminate, because the economic cost of doing so is much smaller for them than it would be for large chain stores).
So, no, Indiana’s RFRA will not lead to gay customers and job applicants being turned away in droves. It hasn’t happened yet, and it won’t happen now. Most Hoosiers, like most Americans, care far more about a person’s money or their job qualifications than they do about who that person is sleeping with.
Don’t boycott Indiana for its clumsy attempt at protecting homophobic business owners, boycott the homophobic business owners themselves! Don’t punish an entire state for the vaguely homophobic actions of its legislature, especially not when there are still countries out there that treat homosexuality as a crime.
The energy being directed against Indiana right now would be better directed against laws criminalizing homosexuality throughout the world, or–closer to home–against laws prohibiting adoption by same-sex couples. LGBT activists need to pick their battles. Trampling over freedom of association to protect some fuzzy “right not to be discriminated against” shouldn’t be one of them.