Ep. 372 Religious Freedom, Freedom of Association, and That Indiana Law

2nd April 2015 Tom Woods 40

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How should we think about Indiana's controversial law? Show notes below.

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Today I discuss the controversy surrounding Indiana’s Religious Freedom Restoration Act. Lesson: stand on principle in the first place, and then you won’t have to rely on convoluted laws later.

Article Mentioned

“Is Indiana Protecting Discrimination?” by Josh Blackman

Related Episodes

Ep. 82: Walter Williams on Nullification, Secession, and More
Ep. 80: Libertarians Are Scary! (Jacob Hornberger)

Book Mentioned

Real Dissent: A Libertarian Sets Fire to the Index Card of Allowable Opinion, by Tom Woods

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Aaron Robert

of course we need to the tom take on this. thanks!
Jake Wiggins

It’s always so refreshing to hear a principled stance on a topic like this. It’s not about pro/anti gay, it’s not about pro/anti religion; it’s about property rights and the non aggression principle – and it’s incredible how much that simplifies the topic.

Libertarianism is not utopia. People will still harbor irrational hatred and ignorance. But as long as no-one, not even whatever minority you support, has the right to initiate violence against anyone else, then the problems will all be manageable. Sticks and stones.
Patricia Walsh

Totally agree with your prediction that libertarians who are so excited about same-sex marriage will not come forth for the rights of those whose religious beliefs are counter to it. This will be a challenge to libertarianism. Remains to be seen who of them will be able rise to the occasion. I have already seen plenty of so-called libertarians who regularly spew words suggesting hatred of anyone who does not support their particular line of thinking. Libertarian or not, no one escapes being human.
Aaron Robert

this is honestly disturbing uhg.
clementi

Ryan McMaken has a good piece about this on the Mises Daily.
David_Rogers_Hunt

Again libertarians argue for equal application of due process, ‘idealists’ argue for what happens to those with the least power in society. ‘Idealists’ experience private discrimination as irrational, and hurtful, and finds this to be sufficient ground to outlaw it. The fact, that so much of the http://en.wikipedia.org/wiki/Abrahamic_religions are explicit about what may not be tolerated, is simply another reason for ‘idealists’ to reject religions as being primarily discriminatory.

Again who decides,… individual moral agents, or ‘philosopher kings’? Both are flawed. So which alternative should be presumptionally choosen? The ‘idealist’ says ‘the one where no one suffers through no fault of their own’. Private discrimination violates this. And so it must go. The ‘rationalist’ says ‘the right to associate, necessarily includes the right not to associate, for whatever reasons whatsoever that any given individual may choose to invoke, even irrational, hurtful, and bigoted reasons. To the ‘rationalist’, there is no such thing as a ‘thought crime’. To the totalitarian ‘idealist’, thought crime is the least tolerable of all crimes that there are.

“It is true that liberty is precious; so precious that it must be carefully rationed.”
~ Vladimir Ilyich Lenin
itdoeseasy

As always, right on!

Individual liberty must be held inviolate. There can be no rightful compromise to this.

Unfortunately people have an addiction to “just one more law”.

Government cannot be the answer to discrimination.
João Unger

Ben Shapiro wrote an article about just that on Breitbart, today http://www.breitbart.com/big-government/2015/04/02/fake-libertarians-run-from-religious-freedom-restoration-act/.

So-called “libertarians” (like Bill Maher – I kid you not) saying the law is bad because discrimination and blablabla.

Rand Paul said nothing at all, and even in his father’s facebook page (where everyone is supposedly truly libertarian) people are saying nonsense about how this law “forces christianity on others”, and etc.

It’s amazing how people can completely distort reality and turn issues upside down
maninthewilderness

Ben Shapiro is right. The issue of anti-discrimination law is not one on which libertarians differ. Anyone who believes that the law should be used to force individuals and private businesses not to discriminate is simply not a libertarian at all.
maninthewilderness

Excellent episode. One of the best, ever – IMHO.

I especially appreciated the the account of legal background to the Indiana law. It makes it clear just how ignorant the hysterical reaction is, and by implication, just how poor and misleading most of the press and media coverage has been. It’s seriously scary.
maninthewilderness

Having listened to Tom Woods, I then listened to Peter Schiff (who was also excellent.)

As I listened, the thought struck me that the Indiana law discriminates against non-religious people. Non-religious people also have strong views on some moral issues. And some non-religious people may, for non-religious reasons, be strongly opposed to (for example) same-sex marriage. If a non-religious person who was morally opposed to same-sex marriage could be sued for failing to provide goods or services at such a marriage, while a person whose moral objections were religiously based could not be sued, there is something seriously wrong.

As I have reflected on what Tom Woods and Peter Schiff have said, I have become convinced that this is a very unlibertarian law, approved by a very unlibertarian governor, which has upset a lot of authoritarian thugs because they suspect it of being libertarian. Sad to say, a lot of those authoritarian thugs consider themselves to be libertarians.
fling1

FWIW, I prefer just the 2 second stinger intro to the “democrats and republicans” intro. I did love the Rush intro, but when you replaced it with just the stinger, I had to admit that it was better. Going back to a longer intro feels like a step backward, especially when it excludes the cool Rush bit and adds the clumsy (IMO) “democrats and republicans” bit, which just buys into the “everything is a political discussion” trap.

That’s one data point for you, anyway.

Sorry to interrupt meaningful discussion with a silly tangent.
fling1

Sorry… this comment went pretty long :-/

I read the article Judge Napolitano wrote the other day, and it brought up the legal distinction of “public accommodation.” https://www.lewrockwell.com/2015/04/andrew-p-napolitano/barry-goldwater-was-right-about-public-accomodations/

In it, he writes, “The federal Civil Rights Act of 1964 prohibits discrimination in
housing and public accommodations based upon race, gender, religion,
beliefs or national origin, and quite properly permits no
religious-based defense.”

I recognize that the concept of public accommodation emerged as part of the civil rights act and that this private property principle could have prevented the establishment of that legal concept. That’s part of the point of Judge Nap’s article.

But we have lived with the legal concept of public accommodation for 50 years, and it doesn’t chafe much, because it seems quite fair and reasonable to almost everyone. Tom, you spend a bunch of time defending the ability of jerks to hang signs in their diners saying “No Armenians” and justifying why that isn’t likely to be a problem, but the civil rights act (NOT the recent religious freedom law) prohibits that kind of exclusion in a “public accommodation” business already. Trying to buck this concept, while possible, is VERY difficult. It feels too reasonable to too many of us. I want to suggest a more temperate approach:

I think it is much more profitable to concentrate this argument on businesses that require a contract of some kind in order to function. Photographers, caterers and churches (performing weddings) don’t operate walk-up services (public accommodations), they operate services that require consultation, scheduling, and explicit agreement. I’ve not seen any lists defining public accommodations that include these. Diners, hotels, even barbers and nail salons are considered public accomodations because they are walk-up, take all comers kinds of businesses. The Judge says, “Today in America, if you operate a public accommodation or deal in real
estate, you cannot choose your customers; they choose you.” But by simply pointing out that contract businesses are not public, we can still stand on the private property argument. Even if we allow the civil rights act to cast a bit of a shadow, the delineation of public vs. contract business operations should allow us to make a private property argument without having to defend the anti-Armenian diner jerks.

That’s still pretty far off of the 3×5 card, even if it does stay on the legal pad of arguments that can be had without shouting :-)
martinbrock

Good point. If anyone doesn’t want to bake a cake or take photographs for a gay marriage (or a straight marriage or a Georgia Bulldogs tailgate party), what does religion have to do with it?
martinbrock

If anyone had said 40 years ago that non-discrimination statutes, then focused primarily on racial discrimination, would eventually force someone to bake a cake for or photograph a gay wedding, they’d have been dismissed as a crank avoiding the issue with a ridiculously implausible “slippery slope” argument.
georgeor

I agree, except I think that was merely 20 years ago.
Tunasail

Tom brought up a lot of points in this episode that I’ve thought about for a long time. There was a case in my area a while ago where a private club (I think it was for men of Italian descent) would not let a woman or a minority (I can’t remember which) into their club. They were sued, lost, and were forced to admit this person. I remember my question at the time was ‘why would someone want to go where they are not wanted?’ (as Tom mentioned in this post). I thought I was the only person to have this attitude. It was refreshing to hear that I am not alone! The older I’ve grown, the more I’ve come to realize that I have been a libertarian for a long – I just did not know it.

Tom did a great job explaining the situation. I have to admit that, other than knowing the whole thing was a mess, I did not delve into the details. Now I understand much better. It’s always great to hear Tom!
maninthewilderness

Back in the 1970s it never would have occurred to me to question anti-discrimination laws. I really can’t remember how my mind changed – but I’m sure it was a gradual thing, starting with questioning in the 1980s. I guess it took me something like 30 years to come to the conclusion that anti-discrimination laws were simply wrong.

And if it took me that long, I wonder how long it will take other people. I guess one of the problems is that civil libertarians have not been making a lot of noise about this over the years. If decent people had been loudly protesting about this attack on freedom of association over the years, it might have been different. Oh, if only Rand Paul had exploded with righteous indignation when Rachel Maddow raised the subject of the Civil Rights Act!

It’s time to get the 3 by 5 card blazing.
Johnny

I still desperately miss the Todd and Ned Flanders quote from the earliest episodes.
Tom Schneider

Excellent comment Jake
johnnyreb

I have for many years considered all anti-discrimination laws to be an assault on liberty. I grew up in the 50’s in rural Georgia and I was sometimes embarassed at the racist environment. I remember the signs saying ‘We reserve the right to refuse service to anyone’. I have no problem with that. The problem was that state law mandated segregation, and that also was clearly an attack on freedom. Many referred to ‘the so-called Civil Rights Act’ after it passed. And that was proper. I say emphatically, I have a right to discriminate. Period. Discrimination does not constitute forcible or fraudulent deprivation of life, liberty, or property. And I think it’s quite possible that a restaurant, for example, could prosper as a discriminating entity. I’m sure many potential customers could be attracted to an environment free of Negroes or Jews, for example. This issue ought to be a central issue of libertarianism, but too many want to soft-pedal it or denigrate those who wish to discriminate.
rob

Well said except for the bit about free speech. You do have free speech on private property, but the property owner can ask you to leave, in which case trespassing is the crime not your speach.
Scottie Sharpe

Tom, great episode. Strange that this particular topic kept me up all last night. Such a loss of Liberty. The wool being pulled over everyone’s eyes. Even my friends (who normally side with liberty and freedom) seem to think we need laws protecting minorities from discrimination. It’s disheartening to see them fooled into accepting the totalitarian position. The swirling spiral into totalitarianism seems to be quickening in this country. I never thought I would see such a loss of freedoms and liberty in my lifetime. Yet here we are. Thank you for providing an educated, articulate voice of rationality in this era of madness.
John Dieter

We are talking about behavior that leads to violence. Mr Woods says most people would not abuse their private property rights by engaging in discrimination (we don’t server your kind here) and he is correct. But the reason is not because they want to do business with “your kind”. The reason is because people will get a little gun and come shoot you for acting that way. We tend to call in the Government bullies with the big guns to regulate behavior that gets people shot. We outlaw gambling because people get shot over gambling disputes. Tom doesn’t think we need the big Gov bully in the equation. He thinks in this day and age of the internet people will be out bullied on the internet until they stop their bullying behavior that leads to violence. I submit that a drive by shooting is more likely. When the fighting words / behavior / theft etc.. occur, If a man cannot call in the Government bully to help him, he will definitely resort to violence. The idea that unregulated online bullying is an adequate substitute for laws that regulate bullying is quite interesting. Seems Tom is arguing for mob rule here. (anarcho somethingorother?)
John Dieter

If someone does you wrong, and the cops say “hey – private property, non-aggression, nothing we can do here” Then start the countdown to a drive by shooting. Bottom line: we NEED someone with a taser and a jail to pretend to mediate in situations that lead to violence. (i.e. being a jerk on your own private property)
John Dieter

or, perhaps they understand that “fighting words” get people killed. A .38 revolver is not a good substitute for a mediator. (laws against discrimination are supposed to step in between two parties that are about to blow each other away)
John Dieter

Then, lets go back to discriminatees and discriminators shooting each other. That would be better right?
John Dieter

as long as minorities can sharpen a pointed stick, we need the laws. Because without the laws they will stab you in the spleen for discriminating against them. I vote we simply change the laws, making “fighting words” like “we don’t serve your kind” a legal defense for murder.
John Dieter

Yes. And you have the right to sit on your porch shooting the bird at every crip and blood that walks by. Engaging in behavior that gets people stabbed in the liver is wrong.
John Dieter

its not about religion, it is about pissing people off to the point that they want to set you on fire.
John Dieter

Very well summed up. If a dance is causing people to shoot each other, should the dance be outlawed? After all, shooting people is already outlawed right?
Jake Wiggins

Hello John, trust me, I had the same thoughts when I first heard about the non aggression principle (NAP). But please don’t confuse it with pacifism. NAP does not mean that you are not allowed to defend yourself, but rather that you are not allowed to be the aggressor. The key distinction is the initiation of violence.

That being said, it is also a bit tangential to talk about how the NAP can be used more in today’s system of law vs how NAP could be used in a stateless society. The topic of privatized law is a bit more complicated and probably not a conversation suited for the comments section of a podcast. But there are compelling arguments that such a system can protect against crimes like those you mentioned.

If you are interested I would look up Hans Hoppe or Robert Murphy, who have each written extensively on the topic.

http://mises.org/library/idea-private-law-society
https://www.youtube.com/watch?v=C2WhnOHCpKs
https://mises.org/sites/default/files/Chaos%20Theory_2.pdf
Antonio Germano

As a “religious” person, I agree with you. The law carves out an exemption for religion where none should exist. Everybody should be free to discriminate, on any basis they choose.

As usual, the moment government inserts itself into the fray, things get murkier, not clearer. Grant government the power to regulate things such as private discrimination, then all sorts of things are on the table for it to regulate.

End the State!
Antonio Germano

Yes, thank you for bringing up the fact that segregation was mandated…by the State. I suspect that many Southerners had no love for segregation but were essentially powerless to do anything about it.

Also, it is possible that a business could prosper while discriminating against certain groups, but that would be up to the market to decide. My guess, though, is that many business would see the silliness in eliminating whole groups from commerce. But, as you say, it would be their right.
Mickey Corvo

What is an appropriate libertarian response to an objection like this: a doctor in a privately owned hospital refuses to provide medical care to a critically ill or injured patient and the patient dies as a result of lack of care. I know no reasonable physician would do, but how can we libertarians best approach this argument theoretically and practically?
John Dieter

Yes. The “private police force” idea is the only thing I don’t understand so well. I keep thinking it would devolve into might makes right. The richest guy owning the courts and cops, and fighting with the courts and cops next door – etc…

Lew said the same thing you said about that topic in his book about anarcho capitalism. Basically he said “go read these books”. Seems the case can’t be made in an elevator speech. Guess I need to do some more reading!
Ling Silberbaum

Sorry to get into this late, but I am a few days behind on listening to episodes right now.

You really are Johny One Note here. Apparently shooting people is the sole solution you have for everything, or you have an inordinate fear of people shooting you for having a different opinion. Either is the mark of an unbalanced mind. The vast majority of us somehow manage to resolve conflicts without resort to fire fights.

You also deal in absolutes, as if we either have to have the New-age Fascist State enforcing the currently hip vision of a nice society or anarchy and vigilante justice.

You are avoiding the question of the rights of free association and religious freedom. But more than that, it is not commerce if you are forced at the point of a gun to sell your products or services to another. It is slavery to be forced to do work you choose not to do. No way around it.

Let’s just flip this around for a moment. I doubt very much that the oracles of Political Correctness would want to use the power of the state to force a Gay caterer to provide food for a convention of the Family Research Council’s Pro Traditional Marriage Campaign, or a black band to perform at a KKK barbeque, or a survivor of childhood sexual abuse to do photography at the National Man Boy Love Association convention.

That is what this is about, not forcing people to have to choose between providing service to a group they dislike and losing their business. That is the side of Liberty, and if that motivates you to start shooting people, you are the one who has a problem.

As for the argument about segregated lunch counters in the Old South, that could have been remedied by the free market, but there was not one in operation. They could only afford to discriminate because it was supported by the government, either covertly or overtly. Those discriminating restauranteurs did not have to worry that someone would open a, “we serve and hire all races”, restaurant across the street and give them competition. They were sure the city would use its zoning and licensing authority to prevent dissent from the official policy. I can’t imagine that Black citizens would have wanted to patronize a restaurant where they were not welcome unless there were none that did welcome them.

Which of course begs the question, why would anyone want a caterer that hates them as a class provision their wedding?
Ling Silberbaum

I will be strongly against forcing churches to perform marriages they disapprove of, and I am a hardcore Liberty first type. Forcing people to perform work they do not want to do is slavery. Forcing churches to accept members that do not conform to their standards violates freedom of association and property rights.

I not only believe that Gay marriage should be legal, but that the government has no business regulating marriage except to prevent forced marriages and child marriages. Marriage should be a civil partnership contract. Other than enforcing the provisions of said contract if there is a dispute, the government and courts should butt out. And I have no problem with polygamy. Having experienced my sister in law staying with us or a week at a time, I can’t imagine why any sane man would want more than one wife, but I won’t impose my judgement on others. If churches have marriage rules they expect their members to obey, they should be free to have church lawyers draw up a standard contract for members wishing to be married in that church and be able to refuse to perform marriages for those who do not sign one that conforms to their standards.

Personal Rights and Personal Property have to be protected or we are on the path to tyranny.
John Dieter

“to stop people from shooting each other” is THE ONLY rationale for laws that place armed state goons between people. Gambling – drugs – illegal why? Because every now and then someone gets shot at the saloon. That is a fact, the most important fact in this debate. And mentioning this fact (which is the elephant in the room for the “non-aggression” and “private security” folks) does not indicate I have an unbalanced mind. Ignoring the fact means you suffer from cognitive dissonance.
Luke Perkins

And yet “every now and then someone gets shot in the” *street* by “armed state goons”… so how is that an improvement? At least with the saloon, those of us who stay out of saloons need not worry about getting shot. Further, when someone is shot in the saloon, the shooter had better have had a good reason. Yet “armed state goons” are given a pass on shooting people unless there is video evidence, and sometimes even if there is. You’ll forgive me for not seeing how your Hobsian “solution” to the problem of violence has made the situation better.

As a side note, if you want the truth behind the drug bans, read/listen to Mark Thornton. In a couple different articles and lectures he chronicles who was really behind the various bans as well as the *increased* violence caused by the “war on drugs.”