Indiana’s Religious Freedom Restoration Act (RFRA), which was signed into law recently, has created a firestorm of controversy. Gay rights activists and pretty much every media outlet in America has lambasted this act as a step backward, not a step forward. It has been likened to Jim Crow laws, spurned boycotts from actual governors of actual states, and led to even businesses with primarily conservative customers, like NASCAR, issuing statements of disagreement with the law. Nineteen other states have similar RFRA laws, and Democratic President Bill Clinton signed the first one into law in 1993. But activists claim that those other laws are different because they have clauses specifically preventing them from allowing the violation of civil liberties, while Indiana’s law does not. What activists don’t realize is that as long as the government protects the free market, this law doesn’t violate civil liberties.
Leftists (and the mainstream media, and most in academia, etc) disagree with libertarians on what constitutes a right, and what does not. Leftists view results as synonymous with rights. A person, they believe, has a fundamental right to food, clothing, shelter, healthcare, and any services or licenses normally guaranteed to anyone else. Leftists believe that everyone should have a guarantee of minimum results, regardless of their merit. They believe that someone putting in 40 hours of work per week should be guaranteed enough money to live comfortably, simply because he did the quantity of work, regardless of the quality of the work. With this definition of “rights”, one can easily see why a Leftist would believe that all people deserve the “right” to get married. It is also easy to understand where they get the idea that anyone has a right to walk into any store and demand some service. And in some ways, they are correct, but these things are guaranteed to them not as rights in and of themselves, but under the umbrella right of “pursuit of happiness.” In short, having the right to pursue happiness does not guarantee a result of happiness, and it does not force other people to provide that happiness to you.
Libertarians believe that one doesn’t have a “right” to results, but instead one has a “right” to opportunity. We believe that everyone will not necessarily achieve the same result, because their merit is not identical. We believe that the only fair system is the one in which people earn what the market is willing to pay. If someone is selling foul-smelling vegetables at a farmer’s market, no customer would purchase them. Liberals’ logic dictates that the smelly-vegetable salesman should still receive some guaranteed minimum because he showed up. Libertarians’ logic dictates that his product is disgusting and the market has decided they will not pay for it. If he can find a person willing to purchase his nasty vegetables, then good for him (is anyone reminded of Oskar from Hey Arnold? “I love this country!”). But back to the smelly-vegetable salesman, nothing should force anyone to purchase his vegetables or force any other salesmen to sell them. This concept of the free market only works if the government keeps the market free. For instance, it is unfair if someone comes into the farmer’s market and buys up all of the stands–now he is the only provider of vegetables, and he can unilaterally decide the quality of the product, what he will pay his workers, etc.
You might be familiar with a giant, monolithic, Customer-Service-From-Hades cable company. Some of them have a monopoly in some areas, and as a result, they can choose what kind of limited service they provide, what crappy small wage they will pay their workers, and how rude they will be to their customers. The reason why a giant monolithic cable company can treat their customers (and their employees) like crap is because of regulations and taxes. Regulations and taxes make it so that little cable companies can’t even get in on the scene–they would never be able to afford it. The big cable company can afford the government albatross, and remains a monopoly. This is an example of when the government has an obligation to protect the free market by removing barriers to competition. Because of their greed and lust for power, they fail to do so. They would rather collect the tax dollars from the giant who can afford it and keep an army of inspectors on their payroll to enforce regulations than ease the burden to allow start-ups to enter the scene. Those start-ups will offer better quality products, better customer service, and better wages to workers and in so doing, will steal away the disgruntled customers and employees from the Monolith. Wherever utilities and cable services have been deregulated, this has happened, and the result is lower costs and better service. This deregulation makes the market more free. Freer markets mean more prosperity for the people.
So how does this relate to religious freedom? I admit that I am still not sure which trumps which: religious freedom or the free market. This is a debate that I’ve been having in my head for quite some time. On the one side, if a person enters into a social contract by opening up a store, he has basically promised the public that he will sell his goods or services for money. If someone comes into his store and offers the requested price for his goods and services and he refuses to sell them, then the free market is in danger, because he has breached his social contract. This would be a case when the government should get involved and prevent this kind of thing. But on the other hand, if providing the goods or services would cause him to violate his beliefs, then he should not be forced to do so. Thankfully, I think the free market has a solution to this problem.
As I mentioned before, libertarians believe that we have a fundamental right to pursue happiness, but we do not have a guarantee that our pursuit will lead to some result. I also mentioned that the right to pursue happiness does not mean that the government has the right to force someone to provide that “happiness” to you. Nor does it mean that the government has the right to dispense “happiness” at all. Let’s take marriage, for instance. Homosexual couples want to be legally married so that they can collect the same legal benefits as heterosexual couples. It would seem that if it was illegal for anyone of any sexuality to get married, that it would violate our right to pursue happiness. That seems to jive with the libertarian view. However, that doesn’t mean that the government has a right to tell any particular company, religion, or other entity that they must marry homosexual couples. So it seems logical for there to be a law preventing any state from making homosexual marriage illegal. However, it also seems logical for there to be a law preventing anyone from being forced to perform a homosexual (or heterosexual) marriage. Now let’s take the bakery example, as that is the foremost on everyone’s mind. It seems that government intervention in forcing the bakery to provide a cake to a homosexual couple is not only violating that baker’s first amendment rights, but also an instance of illegal government intrusion in the economy. At the same time, it seems lack of government intervention might also interfere with the free market because the baker promised to make custom cakes and failed to deliver, thereby violating his contract. What is the answer? Like the marriage example, the answer might lie in a law rooted in libertarian principle. A law might make it illegal to fail to provide something promised under contract, unless providing this thing would cause the person to violate their First Amendment rights. One doesn’t have a positive right to a cake. The government, rather, has a negative right–a prohibition on its rights, or an obligation–to stop anyone from violating someone’s right to practice their religion. And this is what the Indiana law and others like it seem to do.
So does that mean that a restaurant owner could refuse service to a gay person simply because they are gay? No, because the burden of proof is on the individual who claims their rights were violated by the service–how can you prove that giving that person a steak sandwich violates your right to practice your faith? Unless the gay person wanted the restaurant to host a reception for their wedding, the restaurant owner has no reason to refuse service to that person. An event is not the same thing as the person. The law protects individuals from being forced to support an event or action with which they disagree. The law cannot, and should not, protect an individual from prosecution after violating someone else’s individual civil rights. If the law is unclear on this particular point, it should be clarified.
Also, in my opinion, the government should get out of marriage entirely. I think we should split the legal benefits from the sacrament and have everyone, gay, straight, or whatever, get a “legal partnership,” in which all the legal benefits are granted to the individuals involved as if they were married. However, this is all it is. It’s not called a “marriage,” it isn’t performed by churches, and it has nothing to do with anything religious at all. Marriage, on the other hand, should have nothing to do with legal benefits. Just because a church marries you doesn’t mean that it is recognized as a legal contract. Rather, each marriage is recognized by whatever that church believes. In the LDS Church, we believe that when two people are married in the Temple, it is a covenant with God that lasts for eternity. Many other churches believe it is a covenant with God that only lasts until death. Whatever one’s church believes, it should have no bearing on one’s ability to get legal benefits from the government.
It all comes down to positive and negative liberties. The Constitution, as our President famously stated, is a document of negative liberties. He mourned the fact that it was written to tell us what the government must not do to us, not what the government must do for us. Despite the fact that he, as a Constitutional scholar (*gag*) thinks that this is a bad thing, it is a very, very good thing. It is the best thing we have in our country, because it is the basis by which we have a free market. The idea is that the government only gets involved when they must do so, in order to protect the free market from disruption. Similarly, the government only gets involved in our lives when our freedoms are disrupted–they do not provide us with freedoms. They secure our liberties. We do not have a right to any results (a wedding cake). We do have a right to pursue results (ask if someone will make us a wedding cake). Whether we get “happiness” or not depends upon the merit of our quest, and whether the market is willing to buy what we are selling, or sell what we are asking for. The free market, not the government is the key to prosperity, liberty, and happiness.