Posted by on April 14, 2016

BloombergView has recently run a couple of articles that point out the absurdities that arise when the modern religion of political correctness (PC) collides with one of the old ones.

The first is entitled “Hollywood Values Rule” and it describes the battles in North Carolina, Mississippi and Georgia over “religious freedom” bills.  These bills would allow business owners to deny service to gays and lesbians provided that “they justify their personal disdain on religious grounds.”  The article describes how the PC world of Hollywood is using the financial muscle of a $120 billion industry to resist these “dangerous and hateful laws.”  And the pressure is working: the Republican Governor of Georgia has promised to veto the bill.

The second is entitled “Read the Law, Judge.  Pot is a Sacrament.”  It describes a recent court decision in Hawaii that denied the Oklevueha Native American Church the right to use illegal drugs in its religious ceremonies.  Apparently, this religion draws on many Native American traditions and it “honors and embraces all entheogenic (N.B., “the internal generation of the divine”) naturally occurring substances, including Ayahuasca, Cannabis…and many others.”  The author, Noah Feldman, who teaches at Harvard Law School and who is therefore very well acquainted with internal divinity, thinks that the judge has misinterpreted the Religious Freedom Restoration Act of 1993 as only “protect(ing) mainstream religious groups like the Catholic Church, not smaller denominations.”

The Wall Street Journal has also pitched in with a brief article entitled “Bill on Counselors Is Latest LGBT Fight.”  This article describes the attempt in Tennessee to pass a bill that would allow counselors to use personally held principles as reasons to refuse clients.  Apparently this bill is required to protect counselors from professional sanctions because of a recent PC-inspired modification to the industry’s code of ethics which forbids them to send clients elsewhere due to personal beliefs.

I have commented before (notably in “Overreaching Government ‘Enables’ Culture Warriors” and “Headscarves and the First Amendment”) about the mental contortions required to navigate the murky waters of PC.  I am convinced that a future, more-advanced civilization will one day look back upon these efforts with the same bemused contempt with which we view the medieval debates over the number of angels that could dance on the head of a pin.

We have three conflicting strands of thought in these circumstances.  On the one hand, in the eyes of many people, the “religious freedom” to deny service to a gay couple, like the multiple cases of the wedding cakes and the gay marriages, is dangerously close to the “freedom” to deny counter service, front-of-the-bus seating and drinking fountains to African-Americans.  And nobody wants to go back to the days of Jim Crow.

On the other hand, to force someone to act against a religious belief also strikes most people as unreasonable and probably a violation of the First Amendment.  Unlike the case of Kim Davis, the Kentucky county clerk who refused to issue a wedding licence to a gay couple, the bakers are not government employees and they are not refusing to carry out their stated duties.  Nor do they have a monopoly on the service requested; there are many other bakers to whom the gay couples could turn for substitute celebratory desserts.

Finally, what about us atheists and agnostics?  The First Amendment is usually thought of as a protection for religion, but it can also be viewed as a requirement for a purely secular state.  Many of the Founding Fathers were deists (if not atheists).  They were also smart enough to realize that the only hope for people of different faiths living peaceably together is if the State stays firmly on the sidelines.  On what basis, therefore, does the government give preferential legal treatment to actions based on religious beliefs?  And if it does, how does the government peer into the soul of a citizen to determine the source of his beliefs?  Or, as the Feldman article points out, how does the government determine which religious practices are legitimate enough to warrant protection?  Would a Church of the Latter Day Aztecs have the “religious freedom” to carry out human sacrifices?

Oh, the tangled webs we weave….

I think that there is one way to square this circle (or, triangle, to be more geometrically accurate).  And that is to recognize that there is a distinction between a whites-only drinking fountain and the baking of a wedding cake adorned with two same-sex figurines.  That distinction is the aspect of public humiliation.

The Jim Crow laws were publicly humiliating.  They therefore tore at the fabric of society in a particularly destructive way.  This is not true of the interactions between the bakers and their prospective clients.  These were entirely private exchanges which, had they not been brought to the attention of the world by the aggrieved couples, would have remained unknown.  Although one couple claims to have felt “dehumanized” by the experience, I hope that we can agree that protecting feelings is not a legitimate field of government action.  I also hope that we can agree that there is no logical reason to prefer the feelings of a gay couple over the feelings of the “cis”[1] bakers.  (Although, come to think of it, we will have to leave the PC marauders out of this consensus since they clearly believe the contrary.  But there is no reason to pay attention to the desires of these incorrigibles.)

I think that, instead of focussing on the inherently opaque motivation of the business owner and giving an unjustifiable preference to religious belief, we should focus on the nature of the transaction and the service.  If a business offers a plain-sight service[2], such as a restaurant, where refusal would be publicly humiliating, then it must offer this to all.  If it is a fundamentally private transaction, such as ordering a wedding cake, then no such legal protection should be available.  A service provider in this case should be free to provide or not provide the service for any reason and not just because of religious qualms.  This may be reprehensible to us, but as Voltaire tells us, if we are to have a free society, there are a great many disagreeable things that we must defend to the death.

The bakers need freedom, not religious freedom.  Of course, this doesn’t mean that they will be protected against the economic consequences of their actions. The bakers will lose the custom of the LGBT clientele and any other group against which they hold prejudices. The market economy punishes irrationality without pity or preference.  Which is one of the many reasons it is almost always superior to government action.

The Silver Lining

The betting still has to be that the major parties will offer us the choice between cholera (Hillary Clinton) or syphilis (Donald Trump) in November.  But this dark cloud has a silver lining: by nominating two such detestable characters, the political duopoly may hasten its demise.

Exit polls from the recent Wisconsin primary show that, if Trump is the candidate, then 29% of the Republicans will vote for Clinton, a third party or not at all.  I haven’t seen similar polling for the Democrats, but given that Clinton’s disapproval ratings are nearly as high as Trump’s, there is probably a similar phenomenon on the Left.

In America, there is really only one alternative, the Libertarian Party (LP).  The LP usually takes about 1% of the general vote.   However, a recent Monmouth University poll shows that, in a three-way race with Clinton and Trump, the likely Libertarian candidate, Gary Johnson, would get 11%.  If Johnson can maintain these numbers, then it will be the strongest performance by a third-party candidate since George Wallace in 1968 (13.5% of the vote) and H. Ross Perot in 1992 (18.9%) and in 1996 (8.0%).  Unlike these earlier attempts, this would be on behalf of a political party offering a full slate of federal, state and local candidates[3] and running on more than a single issue.

Johnson is the former Republican governor of New Mexico (1995 to 2003, after which he was term limited).  He was the LP candidate for the presidency in 2012, when he secured the highest number of votes in the party’s history.  He is also a self-made businessman who built a 1000-person construction company which he sold in 1999. Although he doesn’t wear his machismo on his sleeve like Trump and Clinton[4], I suspect that Johnson is actually a pretty tough character: construction is not a business for the timid.  He has also climbed the highest peak on each of the seven continents and regularly competes in triathlons, although this is not nearly as awe-inspiring as Trump’s recent boast that “In golf, I’ve won many club championships.   Many, many club championships.”  And, as we know from the email scandal, Clinton is a yoga machine.

You also have to like that, when he was once praised for the job growth in New Mexico under his stewardship, he correctly pointed out that the jobs were created by the private sector and all he did was get out of the way.  Compare that to Al Gore’s claims about the internet and it is possible to imagine that we are not dealing with a run-of-the-mill politician.

Johnson is not from the looney fringe of the LP.  He holds reasonable positions on things like gun control – including during a recent Fox News debate when he claimed to be open to enhanced background checks and limitations on firepower – and has shown no signs of being a gold bug.   His discussion of the issues can be found on his campaign page here.  If you find yourself often agreeing with this blog, then you will be more pleased than dismayed by reading this.

One reason to have high hopes for Johnson’s campaign, in addition to the horror of his opponents, is that Clinton will easily trounce Trump.  As his multiple mistakes before the Wisconsin primary attest, Trump will never stand up to serious media and voter scrutiny in a small field of candidates.  This means that the usual objection to voting for the LP will drop away.  The pre-election polls will be so lopsided that no one will feel that a vote for Johnson would be wasted.   In fact, the opposite, since if Johnson reaches 5% of the total, then the LP will qualify for Federal campaign funding and could therefore become an enduring force.  If Johnson reaches 15% of the vote, then the LP will be automatically included in future televised debates.

The key will be the amount of media coverage the party can generate, which is the traditional weakness of the LP.  But there is also some hope here.  If Johnson continues to poll at double digit levels, then this fact alone will make the party newsworthy.  Media coverage is key because polls routinely show that a lot of Americans are libertarians but they just don’t know it.[5]  There is a good chance that, once they try voting for the LP, a significant number will stick with it.

Traditionally, successful third parties have their ideas appropriated by the Republicans and Democrats.  This is easy when the parties are one-trick ponies but it will be tougher with the LP which offers a comprehensive program that does not entirely fit with either of the major parties.

Unfortunately, America does not have a parliamentary democracy where a small “swing” party like the LP could have the type of disproportionate influence that the Free Democratic Party used to have in Germany, but a strong third-party has to be beneficial to the body politic.  Competition is always a good thing.  Particularly when the incumbents have nothing better to offer than Clinton or Trump.

Roger Barris

Weybridge, United Kingdom


I Wish That I Had Said That…

“The Budget should be balanced, the Treasury should be refilled, public debt should be reduced, the arrogance of officialdom should be tempered and controlled, and the assistance to foreign lands should be curtailed, lest Rome will become bankrupt.  People must again learn to work instead of living on public assistance,” by Cicero in 55 BC, proving that the problem isn’t reforming government, but government itself

“Donald Trump has had several foreign wives.  It turns out that there really are jobs Americans won’t do,” by Mitt Romney


[1] Short for “cisgender,” a derogatory term used (often by the highly sensitive LGBT community) to describe people who lack the originality to deviate from the sexual orientation into which they are born.

[2] I am not a lawyer, although in my professional career I have been walking with cripples for a very long time and have therefore learned to limp.  I am therefore not competent to judge if the legal term “public accommodation,” as used in the Civil Rights Act of 1964, gets at the distinction I am trying to make, although I doubt it since all retail establishments are swept up.  I am not suggesting that there won’t be grey areas in my proposal that will require jurisprudence to clarify.  I am merely saying that this is a more fruitful approach to the problem than the route offered by “religious freedom” laws.

[3] Including yours truly, when I was young and (even more) foolish.

[4] Not a typo.

[5] If you want to know where you stand, then the website has a 2016 presidential questionnaire that takes you through various issues and then tells you the candidate whose views are the closest to yours.

Read Offline:
Posted in: Policy, Politics

Leave a Reply

3 Comments on "We Need Freedom, Not “Religious Freedom”"

newest oldest most voted
Notify of

Gary Johnson sounds good but who has ever heard of him? Fame, or even infamy as trump evidences, is the most potent vote getter and Johnson has neither. Alas.

Judith Martinez

Actually, the problem with the Jim Crow system is that it was government MANDATED discrimination. Freedom would be better served if all private businesses could reject any customer for any reason under any circumstance but that no one was forced to discriminate. Let the market sort it all out.