There has been a great deal of jabs thrown about a bill recently passed by the Arizona state legislature that is intended to protect freedom of religion or enshrine discrimination against gays, depending on your position. The bill, called “SB1062” (or AB 1062, the assembly version) in the typical fashion of laws, is short by most legislative statutes and attempts to expand the state’s definition of free exercise of religion to include economic activities, or more specifically, the denial thereof. Though no specific mention of LGBT categories of persons are made, both proponents and opponents of the law have made mention of it. The law may be found here:
The bill may be partially in reaction to a recent New Mexico supreme court case that upheld a lawsuit against a wedding photographer who refused to photograph a gay wedding, citing religious objections. The law being argued over was the New Mexico Constitution’s Human Rights Act, which extends equal protection of law to those who are not heterosexual. For more information on this case, I suggest checking out an article from last year by Doug Mataconis, and includes many sides to the court’s opinion:
He is somewhat wrong on one claim, which is that the Civil Rights Act of 1964 was necessary to end private discrimination in the south; the truth is that Jim Crow laws created legal mandates for discrimination on the part of private entities. It was illegal to not discriminate. The Civil Rights Act was a monolithic way of paving over those old racist laws. Undoubtedly, some private discrimination would have continued had the laws been discarded some other way, but the fact remains that the bulk of discrimination occurred through government, not in spite of it.
Elane Photography vs. Vanessa Willcock, along with the Arizona law that is partially in reaction to it, is interesting and contentious across a wide array of rights and legalities. This article will attempt to disassemble some of the ethical, philosophical, and cultural issues that surround it and gay discrimination in general. One issue in particular this is being omitted is the de facto equation that the New Mexico Supreme Court made between the statuses of race and sexual orientation. Just how things are equal or not equal requires a bit more analysis, of perhaps a more controversial nature, than is desirable for this article.
I. How Far Do Religious Rights Go?
In a practical sense, there are always limits to the practice of religion in a society whether free or politicized. People do not have exceptions to written or common law simply because they can claim to follow a religion that contraindicates the directives of society. Very few people would argue the right to murder or steal by virtue of religious law, and there are plenty of modern examples of the limitation of religious action. Sharia dictates within small Muslim communities in the United States and Europe are examples of these staunch limitations. Philosophically, most of these limitations occur along one lines: the non-aggression principle, which prohibits assaults and theft. Really, the right to practice one’s religion is limited to the voluntary actions you take as part of it.
What is interesting about Elane vs. Willcock is that the argument does not occur along lines of action, for Elane Photography was initiating no force or enacting no theft, but along a line of inaction, the refusal to render services. In this case neither party suffered damages per se, but damages were civil and to society. Elane Photography refused to photograph the gay wedding and gave a reason in a religious objection, which is where most of the focus has been. According to the court, religious rights do not include the right of refusal once you enter the marketplace. I contend that the religious argument confuses and obscures the real argument, which is about economic, not religious, freedom.
II. Voluntary and Involuntary Transactions
The economic liberty at stake with the Elane case is a fundamental one, which is the right to sell your services to who you desire. This is a right that is not specifically protected in the US constitution, though I argue there are many rights left out of that particular document, and yet you will frequently see signs proclaiming the right (usually inside gas station snack stops). The right to conduct business with who you see fit is a right so fundamental, so sacred, that it is almost never referred to in written law. More than 800 years of common law support this right, and you legally cannot take a person to court for refusing to give you something in a trade that they don’t like. This, as stated above, is the right of refusal, the liberty to refuse to sell your services or property, which are one and the same.
This right might not be specifically stated, but it is inferred in the US constitution via the specific exceptions to the right mentioned in the text. One is imminent domain, when the government forces you to sell your property to them for their use (public use has been a hot issue in the last few years because of the decision of Kelo vs City of New London, but this article is too brief to deal with the abuse of this government power). In this case, they must pay just compensation, or market value. The other exception in the constitution is the selected services, or the draft, which applies only to males and does not pay you market value for services you might otherwise be generating if you weren't forced to serve in the armed forces.
III. Thoughtcrime: Motive and Action-Local Moral Reasoning
Elane exhibits apparently another exception to this basic right (from the government’s perspective; neither the draft nor imminent domain is philosophically valid), which is that you cannot refuse to sell your services or property if the motive for doing so is discrimination. Since the motive itself is illegal (thoughtcrime, as Orwell so famously coined), the right of refusal apparently does not apply. If the photography company had refused because they were booked, or didn’t want to accept the pay the bride was offering, or even because they disliked the bride because of her political affiliation, no law would have been violated, and no party would have suffered any damages, real or civil or psychic.
When considering thoughtcrime laws (much like futurecrime), one must first question the moral reasoning that goes into their creation. The separation between thought and action is an important distinction when operating in a physical, logical world. Contemplating murder is not a crime, only murder is, as much because contemplation has no effect on the physical world as because it is impossible to determine the inner thoughts of a human being. Elane is therefore also interesting because the thoughtcrime involved only exists because the photographer gave an honest and truthful set of reasoning for her refusal to conduct business. Had she chosen to lie, there would be no thoughtcrime, and therefore no damages.
So the end result is a rather odd situation, in which vendors (which is what the photography company was deemed to be) are still able to discriminate against others by refusing to do business, so long as they do not reveal their motivations for doing so.
IV. Market Forces and Social Consequences
One of the most overlooked aspects of freedom is the constant incentive businesses and individuals have to suppress prejudice. This runs contrary to the mistaken belief that freedom in the market causes greater discrimination against minorities and other marginal groups. Businesses generally exist to make money, and they generally do so by serving as many people as possible for as high a price as the market will allow.
Wedding photographers have a natural incentive not to discriminate against couples who do not fit their ideal, because they are getting paid to do so. To refuse to do business for any arbitrary prejudice is to take a loss. The same applies to the employment of minority or marginalized individuals. To limit one’s talent pool for arbitrary reasons is to damage the business by increasing costs or decreasing productivity. The incentive is to dampen one’s prejudices – to sacrifice them on the altar of increased profits and business health.
Adding to this suppression are the social consequences for outright bigotry, which can include social stigma, isolation, and the refusal of service to the discriminator. As far as non-violent action goes, social consequences for unwanted behavior are some of the most effective. The photographer in Elane might very well suffer these through her refusal to serve a gay couple. There may be individuals still interested in the service, but may experience social pressure from their own wedding guests not to use the services of someone they consider a bigot. These social interaction eventually translate into negative economic consequences as well.
This creates what I believe to be the typical person as he acts in the marketplace, who has certain prejudices against certain types of people but does not express these because it is better for his business and personal life to serve all.
V. Conclusion: But They’re Still a Bigot!
Ultimately, the mental states and internal prejudices of people are not alterable directly. No amount of force on the part of government or individuals will get people to stop thinking what they are thinking, short of perhaps the final act of 1984. If somebody has hate in their heart, yet treats everybody with respect outwardly, are they evil? Actions are what matters, not thought. Actions are right or wrong, not will. From Orwell’s 1984:
Thoughtcrime was not a thing that could be concealed forever. You might dodge successfully for a while, even for years, but sooner or later they were bound to get you.