Responding to Two Commenters on my Series on Indiana’s Effort to Embrace Discrimination

By William K. Black
Quito: April 8, 2015

At this juncture, I have written three columns about the effort to enact laws allowing discrimination by merchants.  I have received two thoughtful critiques by readers that I would like to respond to.  I thank them for their responses.  The first comment was in response to my first article.

Ross S. Heckmann | March 31, 2015 at 7:50 pm |

Mr. Black, I’m sure that you’re very knowledgeable about economics, much more than I will ever be. However, I have studied this area, and let me assure you that your apprehensions are groundless. Religious Freedom Restoration Acts such as Indiana’s have been part of the legal landscape for over 20 years, and currently extend to 19 states, and the United States itself. Yet, to the best of my knowledge, none of the scenarios you have mentioned has ever occurred. However, if you or anyone else has heard of such a case, I would be grateful if you (or they) would provide me with a link (or links) to the evidence of such a case.

An NEP reader responded effectively to Mr. Heckmann’s point.

John Wilkins | April 2, 2015 at 9:52 am |

The other 19 states and the federal government all have separate laws making discrimination of LBGTs illegal. Indiana has no such protection. That is the fundamental difference. pence et al thought they could sneak this under the radar with no one noticing but guess what, they fooled no one.

Mr. Wilkins is correct, but I will note two other important points.  First, because the drafters of the Indiana law were political opportunists terrified of being challenged in the Republican primaries and suffering Dick Lugar’s fate and because they misread the politics of our Nation outside that little world of ultra-right wing Republican primary politics there is a tendency to view them as buffoons.  They are not buffoons.  The drafting of the original Indiana bill was clever from the standpoints of legal drafting and press relations.  It was clever to create a superficial parallel to the federal law designed to allow Native American faith groups that used peyote for hundreds, perhaps thousands of years, to continue such usage.  That federal law (and the state analogs) limited the ability of merchants to discriminate against religious workers.  The original Indiana law, as its drafters knew full well, did the opposite – it encouraged merchants to discriminate against customers, even if the “grounds” for that discrimination were the customers’ religious beliefs.  The federal law and its state analogs did not allow merchants to discriminate against groups they despised.  The original Indiana bill (and the Arkansas bill even more so) was carefully crafted to ensure that merchants who chose to discriminate against any group of people they despised would win in court as long as they attributed their objections to that group as based in a personal religious belief.  I’ll expand on the nasty cleverness of the drafting in my response to the comments of the second reader.

Second, while I have expertise in economics, criminology, and regulation, I am also a recovering litigator.  I was a pretty hot shot practicing attorney recruited for a series of critical legal positions on the basis of ability rather than (non-existent) connections.  I am a professor of law and I teach classes in our law school designed to be taken by law and non-law students.  I have considerable experience and expertise interpreting laws.

The second reader comment I wish to respond to was written about my second column.  The thrust of the column was a response to a Wall Street Journal editorial claiming that if you opposed discrimination in employment pursuant to the original Indiana Act you were an intolerant liberal.


Rolf Langenfussell | April 8, 2015 at 2:06 am | Reply

This opinion piece by William Black is stunningly narrow-minded. It also seems to be driven by a peculiar animus toward people of faith who, don’t have the same faith as Mr. Black. Apparently being able to look into the hearts of all who supported the bill, Mr. Black is able to divine that “The effort to authorize discrimination in Indiana was driven by hate for gays.”

He’s just wrong. Many of us who support this bill, and others like it around the country realize that it does something very important for a pluralistic society like the USA to continue; it offers a balancing test and procedure for sincere religious faith. Instead, what we now have is the situation where people who did not ever show any “hate for gays” like the grandmother florist in Washington State, being driven out of their lifetimes work only because she expressed her deeply held religious view that marriage is between a man and a woman and that she simply could not participate in that event because it was diametrically opposed to what she held deeply. So, the facts (William Black used to appreciate those in other writing on economics) are not that a huge, organized effort of hate of gays is going to happen. Reading Black one would think that gays were going to be rounded up and placed in ghettos in Muncie. Not the case at all. The facts are that in modern America any expression of sincere religious faith outside the walls of a church or synagogue or mosque, apparently, is not to be allowed if people are expressing a sincere religious belief contrary to the folks who, um, believe like Mr. Black. That is not protecting the First Amendment right of any of us, including Mr. Black. Think Toleration, think CoExist, think Pluralism. All of these rational motifs lead to one conclusion, and that is that we must protect freedom of religion and freedom of conscience, and attitudes like Mr. Black’s expressed in this article do nothing but to spread more ill will, and, at the end of the day, damage our liberal democracy by trying to impose a certain mind-think on all Americans who do not think or believe like Mr. Black. That is the Maoist way, not the American way.

I have enjoyed reading Mr. Black over the years.

My response:

The Indiana Act authorized merchants to discriminate against any group – Jews, Catholics, Mormons, Muslims, Buddhists, atheists, blacks, Latinos, LGBT, women who were not “modestly” dressed, women in general, and any nationality.  Proponents of the bill were open about their desire to authorize merchants to discriminate against LGBT, but the law never mentions LGBT.  Indeed, the bill takes the bizarre position that we must allow merchants to discriminate on the basis of religion in order to “restore” religious freedom to Indiana.  I’m sorry, I’m 63 years old, white, straight, and Christian and grew up and live in the Midwest.  I’m not guessing, I have decades of experience listening to homophobes who thought it was safe to demonstrate to me how much they loathed gays.  I have heard tens of thousands of gay “jokes” and smears – and they came overwhelmingly from the self-described “faithful” who would occasionally throw in a line about how they loved everyone before they referred to “faggots.”  “Christian” athletic coaches used gay references routinely to insult male students.  This would occur multiple times in a single gym class.  I don’t need any ability to “divine” (though I approve of the pun) the fact that these people were suffused with prejudice, and not just against gays, because they were relentless in their open expression of contempt for gays – and proud of it.

But the reader brings up a good point.  “Sincere” and bigot are not mutually exclusive categories.  Indeed, they are commonly the same.  The refrain “love the sinner; but hate the sin” is typically a lie.  We all know that it is typically a lie, for the religious leaders who favor discrimination against LGBT citizens frequently denounced LGBT people as detestable.  These religious leaders may sincerely believe that G-d wants gays to be stoned or imprisoned.  I don’t care whether that belief that LGBT people are not entitled to full civil rights comes from religion or whether the belief is “sincere.”  Regardless of whether the merchant’s desire to discriminate, and the Indiana legislators’ desire to authorize that discrimination, against LGBT citizens of Indiana comes from a “sincere” “religious” belief, I will oppose the legislation as immoral and harmful.

As I wrote in my third column, I personally witnessed the careers of gay regulators come under attack and even have their careers destroyed because they were gay.  Actually, that is an incomplete explanation.  They were attacked by the fraudulent S&L leaders like Charles Keating and the Texas frauds because they were effective regulators.  The frauds “sincerely” detested gays and engaged in recurrent gay-bashing, but mostly they saw it as a vulnerability they could exploit because they knew that others such as Speaker of the House James Wright, Jr. shared their bigotry.  I know as a witness and as a scholar the real face of discrimination.  People do not discriminate against groups out of “love.”  They discriminate out of revulsion and hate.

Mr. Langenfussell thinks “the facts” are as follows.

“The facts are that in modern America any expression of sincere religious faith outside the walls of a church or synagogue or mosque, apparently, is not to be allowed if people are expressing a sincere religious belief contrary to the folks who, um, believe like Mr. Black.”

The “facts” quoted above are very much not the facts of the real world we live in.  The world is still suffused with expressions of hate for gays.  “Expression[s] of sincere religious faith” and expressions of revulsion for despised minorities (and women) under the pretext of faith occur routinely in America.

What is different is that large numbers of Americans now push back and express their contrary views.  To be more precise, we push back against bigotry against groups even if the expression occurs inside “the walls of a church or synagogue or mosque.”  I don’t think Mr. Langenfussell believes we should be forbidden to express our opposition to bigotry against groups.  He is welcome to express his view, if that is in fact his view, that merchants should be allowed to discriminate against customers on the basis of the customers’ religion.

Anyone familiar with Islam, Christianity, and Judaism’s sacred texts knows about the many horror verses in them that would authorize depraved actions.  People of good will have opposed the message of those verses for millennia.  To me, that struggle is not “narrow-minded” and is in no way hostile to faith communities.  When participants in religious communities act on the horror verses through “honor” killings or the assassination of the Israeli Prime Minister they commit horrible crimes and bring those faith communities into public disgrace.

The original Indiana Act did not require the merchant’s basis for refusing to serve a customer to be a “sincere” religious belief.  But the ability to “express” a view that gay peoples’ marriages are an affront to G-d is not the issue.  Merchants are free to express that view.  What they are not free to do, in the marketplace, is discriminate against groups they detest or view as sinners.  (Under Christian theology no merchant could serve any customer if he or she interpreted Christianity as barring merchants from providing goods and services to sinners.  Christianity is very clear that we are all sinners.)

There may be people who sincerely believe that women who do not cover their heads and wear “modest” dresses are an affront to G-d.  Fine.  I will oppose that view, but they are entitled to their views.  They are not entitled to be merchants and tell our daughter or wife that they will not sell her goods because she is dressed like a whore and a non-believer.  The original Indiana Act would have allowed the merchant to do that with impunity.

Mr. Langenfussell’s next argument troubles me greatly.

“Reading Black one would think that gays were going to be rounded up and placed in ghettos in Muncie. Not the case at all.”

This echoes Representative Cotton’s assertion that American gays should be happy that they weren’t born in Iran.

“‘I think it’s important we have a sense of perspective about our priorities,’ Cotton said. ‘In Iran they hang you for the crime of being gay. They’re currently imprisoning an American preacher for spreading the gospel of Jesus Christ in Iran. We should focus on the most important priorities that our country faces right now.’”

Cotton is the very model of the Tea Party’s worst element.  The media has missed the fact, however, that his argument provides two compelling grounds for opposing passage of the original Indiana law authorizing merchants to discriminate against Christians and gays.  First, Iran is motivated by “sincere religious beliefs.”  It is a complex government, but it is unusual in openly being a theocracy.  The exact manner in which particular religious leaders make key governmental decisions is complex, variable, and differs from the full scope of the religious leaders’ power versus how much a veto they choose to exert over particular policy issues.  In any event, let us assume for purposes of discussion that Cotton is right, that Islam, as interpreted by Iran’s religious leaders (1) leads to the legalized murder of gays and (2) the imprisonment of any Christian preacher.

I hope that virtually every American can agree that these “sincere religious beliefs” of Iran’s religious leaders (1) should be opposed regardless of whether the views are expressed inside or outside the mosque and (2) these same sincere religious beliefs, in the commercial context, would lead to merchants who held such beliefs discriminating against large numbers of Americans – Christians, Jews, LGBT, and “immodestly” dressed women.  Cotton has made our point.  Religious views are often exceptionally intense and bigoted – and most dangerous when they are “sincere.”  Note that in Iran the sincerity of the religious objection to gays does not mean that the religious leaders are not bigoted against gays.  Indeed, the Iranian religious leaders’ teachings about gays are deliberately calculated to induce the faithful to hate gays.

It boggles the mind given Cotton’s disdain for Islam that he supports the original Indiana law that would allow the most extreme forms of bigotry embraced by some Muslims to authorize those extremists to discriminate as merchants against Christians.  Cotton is plainly appalled by Iran’s discrimination against a Christian preacher, yet he embraces the original Indiana law that would allow Islamic merchants to invoke the most extreme versions of Shariah to justify refusing to provide goods and services to Jews, Christians, women, or “immodestly” dressed women.  Kareem Abdul-Jabbar made this point about the irony of Indiana’s ultra-extreme Republican legislators managing to implicitly make the most extreme interpretations of Shariah part of Indiana law.

The second problem with Cotton’s logic is that it was Indiana’s Republican leadership that chose to take a non-issue (merchants are not allowed to discriminate against groups they disdain) and chose to make it a top legislative priority and rush to enact it.  So, if Cotton thought we should “focus” on more important “priorities” then he should have opposed the Indiana Act.

I hope the reader will reconsider the unfortunate suggestion that until discrimination reaches the level of concentration camps (where gays were murdered by the Nazis) it really isn’t worth stopping.  I feel strongly that he does not believe that discrimination by merchants against disfavored groups is a “no harm; no foul” situation.

The reader finishes with a Great Leap Forward.

“Think Toleration, think CoExist, think Pluralism. All of these rational motifs lead to one conclusion, and that is that we must protect freedom of religion and freedom of conscience, and attitudes like Mr. Black’s expressed in this article do nothing but to spread more ill will, and, at the end of the day, damage our liberal democracy by trying to impose a certain mind-think on all Americans who do not think or believe like Mr. Black. That is the Maoist way, not the American way.”

I do “think toleration” and pluralism, though as I have explained “toleration” is the wrong concept since its connotation is that the majority deigns to not discriminate against the minority (or women).  America amply protects “freedom religion and freedom of conscience.”  Part of that protection is that in the commercial sphere merchants cannot discriminate against groups because of their religion, race, ethnicity, nationality, gender, or sexual orientation.  I have no power to “impose a certain mind-think on all Americans.”  I simply express my views and my reasoning why in America our merchants should not be able to discriminate against groups they despise or deplore.  I try to change the way they think through reasoning.  I have neither the power nor the slightest desire to “impose” my faith on others.  We don’t demand that the merchant actually respect our daughters and wives, but we demand that they treat them with respect even if they are wearing “immodest” clothing in the merchant’s store.  If they are so suffused with bigotry that they are incapable of providing goods and services to the general public or believe that their religion forbids them to serve the general public then they should stop being merchants.  The reaction to the original Indiana law demonstrates that Americans as a whole are appalled by going back to the Jim Crow and Klan eras when merchants, employers, and landlords routinely discriminated against many groups, particularly in Indiana under the Klan.

I do not favor laws that seek to control what people “think.”  I favor laws that govern how they act in their capacity as merchants, landlords, and employers.  In those commercial contexts I favor laws that prevent them from discriminating against groups on the basis of factors such as the customer’s religion, race, gender, “modesty” of female clothing, and sexual orientation.

Maoist?  You lost me there when you made a sudden hard left turn.  I just find it farcical, particularly for anyone who has any sense of Indiana’s terrible Klan history, to write that restoring the “rights” of merchants, landlords, and employers to discriminate against the citizens of Indiana based on their religion, race, gender, ethnicity, nationality, “modesty” of women’s attire, or sexual orientation is the way to “restore” “toleration” and “pluralism” and “religious freedom.”  Maybe your history is the opposite of that I am aware of, but the Klan was the leading opponent of toleration and pluralism.  It too claimed that its bigotry represented a sincere religious view.  I think their leader in Indiana was a perfect example of the actual “sincerity” of their religious beliefs.  But the bottom line is that I don’t care whether the Klan sincerely believed that the need to discriminate was a vital component of their religious beliefs.  I oppose their discriminatory policies.

6 responses to “Responding to Two Commenters on my Series on Indiana’s Effort to Embrace Discrimination