Why RFRA is NOT discriminatory

I have been called bigoted because of my support for this.  They have one fundamental flaw.  it would be bigoted of me to discriminate black folks.  They cannot change the fact they are black.  As far as the LGBT(add whatever letters they want after this) goes if you listen to them talk and watch what they write this is referred to as a lifestyle…this means by it’s own definition it is a choice to live this way.  If i do not want to service somebody due to my religious beliefs(this right is protected by the First Amendment) I can.  I can actually relate to what Karl Denninger says below because when i first start my business i had somebody ask me to design a website for them worshiping vampires and satan.  i declined.  Today that would probably get me brought up on charges which i would fight based on my 1st amendment rights.  Folks not wanting to server cakes and stuff for homosexuals or ny other reason shouldn’t have to either.

As Karl Denninger also explains:

With Arkansas passing a RFRA bill (which the governor has now said needs “clarifications”) essentially identical to the Federal and Indiana laws I’m going to challenge you to think and then act against those who are arguing that this is a matter of “anti-discrimination” — that is, these bills intend to enable acts that should be prohibited.

I fully understand and in the general sense agree with the view that discrimination on the basis of race, color, creed, sexual orientation and similar is wrong.

However, all rights are in fact negative things — that is, they do not include the ability to impose on other people but rather to prevent being imposed upon.

You have the right to freedom of speech, including utterly disgusting speech, but you do not have the right to force someone to listen to your speech.  If I turn my back and walk away, you cannot force me to listen.  I do not have to buy your megaphone for you, pay your printing bill, or pay for your internet service to broadcast your message.  In addition if your speech imminently and concretely causes harm (e.g. yelling “fire” in a crowded theater when there is no fire, and as a result harm occurs) you can and should be held accountable for the harm.

Rights are not things laws grant; they exist by virtue of your humanity.  Laws (and governments generally) can only respect or disrespect rights; they cannot create them as government never had that power in the first place and you cannot grant that which you do not possess.

So let’s look at the RFRA laws and why they’re necessary — and proper.

The Federal RFRA was passed in response to employer, State and Federal government action taken against native american tribe members who use peyote in their religious ceremonies.  Despite the fact that they used said substance as an inherently ceremonial act both private employers and governments tried to ban them from the workplace and, in some cases, threatened to imprison them for exercising their religion.

Note carefully that a large part of the problem was private employers effectively enjoining someone from exercising their freedom of religion while not at work.  Because drug tests detect not the psychoactive ingredient itself but rather metabolic byproducts these tests acted as a means of barring participation in a religious ceremony that had no bearing on work performance or safety.

The RFRA did not “grant” any new rights; those rights already existed but were being ignored.  It merely reinforced the First Amendment and should have never had to be passed.  It was necessary, however, due to what was being imposed on these people, and it put a stop to those practices — despite the screaming from the loony right (at the time) about their “drug abuse.”

What the RFRA said was this:

  • A government policy that infringes on religious freedom must be to address a compelling interest.  That is, there must be a genuine compelling public policy matter under consideration that does real harm to real people if infringement of religious freedom is to be result

    AND

  • The remedy via the law that addresses the compelling interest must be through the least-restrictive means available.

This standard is known as “strict scrutiny” in legislative jargon and it is inherently the only proper standard where any right is involved.

Over the intervening years states have passed laws that severely infringe on religious freedom in a number of ways.  As part of and following the Civil Rights Act various laws were passed that, among other things, rendered discrimination in public accommodation unlawful.  These laws certainly survive a strict scrutiny test as (1) being able to obtain a room to sleep in or something to eat when you’re on the road irrespective of your race, color, creed or similar is a rational public policy matter (and the lack thereof is likely to do real harm to real people) and (2) the only rational remedy is the prohibition of that conduct.

But let us take a look at this sort of law and apply it to, for example, a sculptor.  Let’s posit for a moment that this sculptor is a deeply-convicted Christian who believes that he is not to make any sort of graven image and if he does, he will go to Hell when he dies.

Now let’s further posit that you come to him as an adherent of the Church of Satan and wish to commission him to create for you a statute of Baal.

These laws those lunatics on the left champion would force him to create said work of art despite the fact that he fundamentally believes doing so would cause him to be irretrievably damned to Hell — or go to prison now.

This sort of crap is why the RFRA was necessary and why these state laws are necessary.

The chef sets his menu and ingredients at his restaurant.  You have no right to demand that he not use, for example, bacon fat as his cooking oil.  Yet if you’re Muslim or Jewish such an ingredient in your food is utterly barred from you as a matter of religious law — period.  While the restaurant does provide a public accommodation (that is, test #1 passes) strict scrutiny does not permit you to demand that he change the oil the chef uses for his cooking.  He is required to serve anyone who is willing to pay the asking price for his dish, but you can’t dictate the ingredients.

Next up is the rooming house.  Let’s presume you have a religious requirement that your bed face East.  The hotel is built in such a fashion that the beds all face North.  You cannotdemand that the hotelier allow you to move the bed.  He must allow you to rent the room but he is not required to allow you to dictate to him how it is configured.

The RFRA is necessary because both of these instances are entirely within what the loony left screamers contemplate trying to force upon proprietors!

Note, however, that while the hotelier and chef have artistry as a component of their offering it is not individually tailored to the customer.  That is, the individual delivery of the good or service is of a utilitarian character; the artistry is in the design and not the individual rendering for each buyer.

Now let’s look at the cake baker, florist and photographer as points on a line where artistry becomes the essence of the transaction — with each being further along it.

This is a radically different situation.  Each cake is different; the ingredients that go into a cake may be close to the same but the assembly and decorating of each cake is individualized for each customer.

Each floral arrangement is different.  Each customer’s order is quite different from the last; while all are flowers the specific types and how they’re arranged is going to differ from one customer to the next.

For the photographer the very essence of their work is artistry; each individual shot is different!  From selection of the camera and lens to the ISO, F/stop, shutter speed, composition and lighting each is individually selected for each press of the shutter button.  And then, in the modern world, there’s even more artistry after the fact as the post-processing (by computer) is often as involved (if not more so!) than the capture of the image itself.

These sellers of services and goods approach, more-or-less in order, that of the sculptor.  Further, there is no public accommodation argument available for any of them: You can buy a cake and as many flowers as you’d like at WalMart and they don’t give a good damn why you want either.  Anyone can wield a camera and press a shutter button and at most weddings dozens do exactly that (even if they’re cellphone cameras.)

The value of the ingredients in said cake is a few dollars; the price is hundreds or thousands, and virtually all of it reflects artistic value, not utility.  The same is true, but even more so, of the florist and photographer.

RFRA laws reinforce the right of those people to exercise their religious freedom by refusing to participate in acts that violate their religious convictions.  When you demand that such an artist work for you even though it offends their religious beliefs you are in effect commanding a sculptor who is a deeply-convicted Christian to make you that statute of Baal so you can practice your religion, in this case Satanism!

What RFRA underlines and reinforces is that in order for you to make such a demand and enforce it you must show that the there is a compelling state interest in forcing the production of that statute (or those pictures) by that individual (in other words you are substantially prevented from obtaining that good or service as a whole) and further, that forcing that singular provider to do so is the least intrusive means of you getting a statute or those images, flowers or cake.

The problem is that neither test succeeds — you not only have no compelling state interest (you have a selection of many places to get flowers, cakes and pictures and none of those are in any way necessary) but in addition since you can buy a camera for a small amount of money and anyone can take pictures there is no argument to be made that demanding said photographer take them is the least-intrusive remedy for what you are complaining about.

The Federal RFRA law was signed by Bill Clinton and passed by overwhelming margins in both the House and Senate.  The State versions have become necessary because of the lunatic lefty screamfest that has in fact caused small business people to be attacked for refusing to practice their art in a way that directly violates their religious beliefs.

To those on the lunatic left who want to threaten economic boycotts, please be aware that this sword has two edges and I think it’s time for the rest of us to figure out who you are, identify you, and boycott you in return.  

And indeed I’m going to start, by myself, as a boycott of one aimed directly at all of you who infest places such as Seattle and Californicated.  I urge the rest of you to join me.

I bet there are more of us than there are of you.