Sorting Through the Noise on Religious Freedom' Bills

“What is ominous is the ease with which some people go from saying that they don’t like something to saying that the government should forbid it. When you go down that road, don’t expect freedom to survive very long.“

Thomas Sowell

“Private property, not democracy, is the great guarantor of prosperity and liberty. And because it decentralizes power, it safeguards us from madmen with utopian hallucinations.”

–Thomas Sowell

“Creating false distinctions between human rights and property rights plays into the hands of Democrat and Republican Party socialists who seek to control our lives. If we buy into the notion that somehow property rights are less important, or are in conflict with, human or civil rights, we give the socialists a freer hand to attack our property.”

Walter E. Williams

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Rarely have I seen an issue so misunderstood and misinterpreted by all sides as I have in this struggle over what happened on HB 1228. If you don’t know what is contained in this story, I daresay you do not understand what happened on this issue. Any effort to set the record straight and accurately inform the people of this state of what has really happened to them must start outside the state.

Colorado has a law which treats homosexuals as a “protected class”, meaning that it is not legal to “discriminate” against them on that basis. Many bakeries are small family businesses. In Colorado, some of them were owned by Christians who did not want to bake and design a cake to celebrate a homosexual “marriage.”  The homosexuals have taken to suing such small businesses in Colorado on the basis of discrimination, and courts have supported such suits by fining the bakeries out of business or even threatening prison time for bakers who refuse to serve homosexual “weddings” in violation of their conscience.

In Arkansas there is no such law which makes sexual orientation the basis for a protected civil rights status. Because of that, no such suit could stand here. Late last year though, the city council of Fayetteville passed a city ordinance which would set up a “Civil Rights” commission, just like in Colorado, which would hear claims of “discrimination” based on sexual orientation. The commission could have issued fines, more limited in nature than the Colorado law permitted, but still sizable.

I say “could have” because the people of Fayetteville, both church and business community, petitioned to have the matter put before a vote of the people, as is possible under their city charter. The ordinance was reversed by a vote of the people. In addition, one of the city council spots was filled by a candidate who ran against the ordinance.

So when the legislative session got underway, there was no threat to violation of conscience such as occurred in Colorado. Christian bakeries could refuse to serve homosexual “weddings”, and as far as state law was concerned atheists could refuse to serve Baptist revivals, black-owned bakeries could turn away business for Klan rallies, Muslims could refuse to serve Bar Mitsvahs, and Jews could refuse to cater an event at a Hog Farm. Basically, if you owned a business you had the right to refuse service to anyone.  There was no state law describing the circumstances under which an Arkansan could be forced to violate their religious conscience. We had a state right to free association, a right to freedom of religion, and use of our property as it related to the same, and no state law put any boundaries on that.

People these days, conservative, liberal, or whatever, are so insecure, and so government oriented, that whenever something pops up in the news they think the answer is to pass another law. There was no need for another law. The issue had been handled by the people, where it ought to have been handled. There were only a few towns in the state even willing to consider such a law, and if any of them had tried it the market would have punished them for their idiocy as businesses, citizens and customers gravitated to towns without a bunch of little city commissars handing out fines for not being PC-enough.

Not only that, but as we will see, adding laws such as these often serves as a two-edged sword. Still, the uproar caused by the events surrounding the Colorado and Fayetteville incidents led some legislators to decide that they had to “do something” about the threat to “religious freedom.” Senator Bart Hester filed SB 202 and Representative Bob Ballinger filled HB 1228. Though I don’t doubt their intentions, I saw no reason why either bill was necessary. I saw several reasons why each bill was a risk and those risks are blowing up on us faster than I anticipated.

SB 202 stipulated that counties and cities could not pass civil rights ordinances for any class not protected in state law. That meant that the power to decide who got civil rights protection was centralized. It passed from the cities to the state. I don’t think that is a bad idea because I am a localist, I am a localist because stuff like that is a bad idea.  I am from a very traditional town, Pea Ridge. They would not be partial to recognizing homosexual relationships as marriage. An hour down the road is Eureka Springs, which has an official City Registry to recognize such marriages. Pea Ridge is not like Eureka Springs, and neither of them are like Little Rock. Why try to make the rules the same when the people who live there don’t believe in the same things?

Look, if we are non-neurotic enough to sleep well at night even though people we don’t know in a city we don’t visit are doing things differently, then maybe we have got a chance to be free.  “The bar for everybody should be set by law exactly where I feel it should be” is simply not a rational position. If we just can’t stand it unless distant strangers are forced to live by the rules we want for them, then why exactly should we be free? After all, that attitude is one of a petulant child dictator who does not believe in freedom for anyone else, so why do they deserve it for themselves?

Senator Hester cited ease of commerce in his bill. OK, having a patchwork of laws might slow things down a bit, at least for giant chains. It won’t affect local business. But this raises the question of who decides what our laws are and for whom are they written? Are our laws written to reflect the real beliefs and values of the real persons who have to live under them, or are they written for the benefit of giant corporations which may or may not move to the area? Snatching all the power to make such ordinances from the localities and concentrating that power in Little Rock was, in my opinion, unjustified by the events which transpired in Fayetteville even if they hadn’t quickly fixed their issues themselves.

That brings us to HB 1228, which many mistakenly believed would give Arkansas business owners some kind of new permission to discriminate against people based on their sexual orientation. It would not have done that and Representative Ballinger said so on national television. The reason it did not grant such permission is that up to that point there was no Arkansas or Federal law that implied that people even needed such permission.They were already able to do what some people think this bill would have “allowed” them to do. They had an undefined amount of freedom of conscience in that area. All HB 1228 did was take that undefined amount of religious freedom property owners had in this area of life and start putting boundaries on it! The bill subjected such previously undefined freedom to freedom that could be removed when it was in “a compelling government interest”, whatever that is, so long as such freedom was removed in the “least restrictive manner.”

In that sense HB 1228 started the process of reducing religious freedom, and that was before the PC-police started jacking with it! Just because a bill is named a “religious freedom” bill does not mean that its content and actual effect would be to increase religious freedom. What this did instead was attempt to define a previously undefined amount of freedom.

Let me stop right here because everyone was tripping over themselves saying that they did not want the bill to be “discriminatory.” That has become one of those poisoned words that you can’t tell the truth about  because the more thoughtless members of our populace have been conditioned to think that it is always bad to be “discriminatory”. The truth is more complicated than such slogans allow for. Sometimes it is good to be “discriminating” and if we did not use our judgement to discriminate between good and bad we really couldn’t even function in everyday life. What matters is not whether one is “discriminating” or not, but whether the basis of one’s discrimination is just or unjust.

I will go farther, discriminating on an unjust basis is wrong, but if the issue is whether you want to use your own property to serve someone, why should it be a matter for the law?  If I refuse to make you a cake for some event to which I have religious objections I have not with-held from you anything to which you have a natural right. This is because I am not your, or the state’s, slave. You don’t have aright to compel my labor. By putting out my shingle, I am just saying I want to engage in voluntarycommercial transactions. Hanging out that shingle does not remove the “voluntary” part. Everyone that walks in that door and asks for a custom cake, the baker has to decide if they want the job and the customer has to decide if they want to pay the price. When both sides agree, a voluntary transaction occurs, and that is what the baker is soliciting when they open their doors to the public. Its not a commitment to take every proposal that walks in the door.

OK, but Mark are you suggesting we allow a business to discriminate based on say, race? I think it is repugnant for a business to refuse to serve on the basis of race. I would want to know who there were so I could boycott them. The thing is, under current law, you can’t tell who the racists are because they “hide in the closet”. They make up some other reason to deny service, or they give shoddy service or resort to some other ploy because they are bound by law for saying what their real motives are for not wanting to do business with, or hire, someone. You and I may be doing business with someone like that right now simply because they are compelled by law to conceal who they are. Nevertheless I don’t have to consider that question here, because this is discrimination based on behavior.

If Starbucks or Apple do not want to do business with me as a traditional, orthodox Christian, then they should not be compelled to. I will just get my over-priced beverages and smart phones elsewhere (note: I am not saying that is the actual policy of these two companies). The right to use my property and my labor as I see fit is also a civil rights issue. The two black guys I quote to start this article agree with me on that (both of those “guys” are also economics professors at two of the most prestigious universities in the country).  I wonder if we did not go so far in our national repulsion with our mistreatment of black Americans that we started down a slippery slope that threatens the property rights and rights of conscience of all Americans of all colors.

But I digress. I was talking about how a previously open-ended and undefined right got bounded by HB 1228. With HB 1228 such rights became subject to “compelling state interest”. I object to this, for there is no state interest more compelling than the individual right of conscience in the use of their labor and property. Still, even that was too much freedom of conscience for the PC-left. They objected that the boundaries set were still too broad precisely because it protected Christians from being dragooned into service of homosexual celebrations by private interests.

To show you what a farce this whole thing is, the federal version of the “Religious Freedom” act only protected you from the government forcing you to violate your conscience on their behalf, unless there was a “compelling state interest” for the government to do so. It did not explicitly protect you from the government forcing you to violate your conscience on the behalf of someone else-for example a member of what the government felt was a “persecuted” group such as homosexuals traumatically denied the services of a Christian baker for their “wedding”. That is why the language in the federal bill by itself was so worthless that Bill Clinton could support it, and Barack Obama could and did support it. The government can simply use some private interest as their surrogate and the protections in the language of the law could be negated.

Some courts had ruled that since the federal Religious Freedom Act barred the government (without a “compelling state interest”) from dragooning you into their service in violation of your conscience, it could not do so to dragoon you into the service of a private individual either, but that point was in dispute and not in the text of the federal law. Ballinger put it into the text of HB 1228. Governor Asa Hutchinson did an about-face and refused to sign the bill over that amount of difference. Hutchinson did not want even that tiny amount of variation of state law language from federal law language, so much has he become a DC-man.

Hutchinson made like it was a family chat with his son Seth that caused him to change his mind on the bill because of the “generation gap” of a measure he called “divisive.” Seth Hutchinson himself has been quoted as saying he only had a small part in changing his father’s mind. Global corporations have taken sides in the American Culture Wars, and for the most part they have sided against traditional American culture (and why not, they are global, not American). Wal-Mart called Hutchinson up and told him not to sign the bill. The people who voted for him were mostly asking him to sign the bill. He did what Wal-Mart asked him to do, not what the people who voted for him told him to do.

If it had stopped there, I would be OK with it. Like I told you, we did not need either of these bills and I did not want either of the bills. We could already do everything HB 1228 said we could do when this thing started. I was worried that once they started regulating it, once they started putting boundaries on it, what was once open and free would shrink to a smaller and smaller area of allowable dissent from the norm (i.e. – a smaller amount of freedom). Sure enough that is what happened, I thought it would take years but HB 1228 did not even have dry ink on it before it happened. Hutchinson said he wanted another bill with the provisions which went beyond the worthless provisions in the federal version of the bill removed.

Unfortunately, Ballinger and most of the rest of the captured Republicans compliantly obliged the Governor. They weakened a bill that was already at the very best only no better than what we already had concerning the controversy which prompted it. I have no idea what Jerry Cox of the Family Council is talking about when he describes this bill (SB 975) as a “victory” or a “Cadillac.” Bills don’t do what their title says they do just because its in the title. The bill was a defeat, a set-back, for people who believe in religious liberty and freedom of conscience and a minor victory for those who want to continue to use government compulsion rather than reason and persuasion, to win the argument over the public recognition of homosexual relationships as “marriage.”