Indiana RFRA: What Part of Economic Boycotts Do Conservatives Not Understand?


That's the front-page image of today's Indianapolis Star. The Hoosier State's leading newspaper editorializes:

Gov. Mike Pence and the General Assembly need to enact a state law to prohibit discrimination in employment, housing, education and public accommodations on the basis of a person's sexual orientation or gender identity.

Those protections and RFRA can co-exist. They do elsewhere.

From a libertarian perspective, belief in the freedom of association generally trumps belief in anti-discrimination actions by the state. Not always, but mostly. In fact, things are more complicated, since it's typically the state (whether at the local, state, or federal) that historically was doing most of the discriminating. Jim Crow was ushered in by the Supreme Court's vile "separate but equal" decision in Plessy v. Ferguson, which upheld a Lousiana state law barring railroad companies from selling first-class tickets to black customers. When businesses in the segregated South attempted to treat customers equally (often a good business strategy), they were typically hemmed in by specific laws preventing such things or by de facto laws enforced through brute force by various "citizen's councils" and terror groups such as the Ku Klux Klan (which often included politicians and law enforcement). It was government at all levels, not local businesses, that disenfranchised blacks for decades. And it was, in many cases, government action that was necessary to change things.

If conservatives are serious about individual rights and limited goverment (as they claim to be), you'd think they would be at the forefront of striking down laws that treat marriages between two men or two women differently than, say, one man and one woman or one black person and one white person. Why should the same government that can't educate your children or deliver your mail get to decide which couples can marry in a civil ceremony, right? Some conservatives are at the forefront of marriage equality, of course: Former Bush-era U.S. Solicitor General Ted Olson is one. But the conservative case for state-level Religious Freedom Restoration Acts such as the one passed in Indiana is precisely that the state should not be able to compel people to contravene religious beliefs when it comes to certain activities; government should be limited in its ability to force people's actions in matters of conscience.

That's fair enough, especially since there seem to be exactly no cases where gay or lesbian couples have had to forego a wedding cake or videographer due to a particular business's refusal to serve them. Fully two-thirds of Americans believe that homosexuality among consenting adults should be legal and 55 percent believe that gay marriages should be treated the same as traditional ones. Both percentages are increasing rapidly and the plain fact is that social and religious conservatives have not only lost this cultural battle, they have been so routed that even laggards such as Hillary Clinton and Barack Obama have switched sides on gay marriage.

Indeed, it's telling that this particular battle over having to serve gays is the one where conservatives have decided to mount what is something like a last stand against the forces of toleration and pluralism. It's their right to do so, of course, but they've also been forced into not just an unpopular position but a logically fake one. Indiana's law doesn't sanction discrimination, they claim, even as that's exactly what it does: It allows for a legal defense in certain sorts of cases based on religious views that preclude doing business with certain types of people. That conservatives can't just own that plain fact is one more sign that they've lost their fighting faith, even as they claim this fight is about faith.

So too is their unwillingness to countenance potential boycotts of Indiana and other jurisdictions that support similar laws. Sean Davis of The Federalist is a smart and sharp writer and he's had lots of fun pointing to Connecticut Gov. Dan Malloy's hypocrisy on the issue (Malloy has called for a ban on state-funded travel to Indiana without realizing his own state's RFRA is more exclusionary than Indiana's, argues Davis). So what, exactly? Since when is consistency the benchmark for conservatives in matters of faith or anything else? Prior to the passage of Obamacare, with its birth-control mandate, Hobby Lobby covered some of the very same drugs it later claimed in a successful Supreme Court case were anathema to its owners' religious views. I didn't hear any conservatives mocking Hobby Lobby for its hypocrisy or lack of understanding of its own policies.

Boycotts may be based on hypocrisy and moral grandstanding (let's concede they often are) but they are also sometimes effective. In fact, Arizona Gov. Jan Brewer, who became a conservative folk hero for wagging her finger in the face of Barack Obama on an airport tarmac vetoed Arizona's RFRA bill precisely over fears that it would hurt the state's economy. And in most every other context, conservatives love boycotts. Like libertarians, they dig "disciplining people with the market" as non-violent way of showing preferences. Just this morning, I received an email from the Media Research and the Family Research Council denouncing Disney/ABC Television for developing a show based on the life of foul-mouthed, Christian-bashing advice columnist Dan Savage (whose latest media stunt was to tell Ben Carson to "suck my dick" to show that homosexuality is not a learned behavior). "If you choose to go forward," warn L. Brent Bozell and Tony Perkins, "it is very likely you will be creating an immediate national scandal for yourself."

Sounds like a threat to boycott, doesn't it? And isn't that one of the ways that activists use market power to change the world? Maybe the gamers behind GenCon, Indiana's single-largest annual convention, or folks at the NCAA (headquartered in Indianaopolis), or the band Wilco are just blowing smoke when they threaten to forego Indiana in the future because of its RFRA (as one Twitter wag put it, like you need another reason to avoid Indiana). Maybe they're hypocritical because they live in states that similarly allow religious defenses against certain antidiscrimination laws. Maybe their boycotts won't have any effect (while they sometimes work, they are more often ineffective).

But critics of the Indiana law hardly have a monopoly on hypocrisy, tendentiousness, and lack of introspection. Indeed, to the extent that conservatives are unwilling to fully admit what the law allows and why that should be allowed, and that the same freedom of conscience at the heart of RFRA allows for customers to take their business elsewhere, conservatives may have cornered the market in this case.