I grew up in Indiana. My family still lives there and I love the Pacers. So I have a personal interest in the growing controversy about the state's "Religious Freedom Restoration Act." That law, recently signed into law by governor Mike Pence, would forbid any "governmental entity" from "substantially burden[ing] a person's exercise of religion" except in cases in which a "compelling governmental interest" is at stake. Though the law does not mention homosexuality, its obvious intent is to allow business owners to refuse service to gays and lesbians. As a result, many Hoosier businesses, universities and even city governments have come out against the law while politicians and celebrities outside of Indiana have criticized the law and committed to avoiding the state. This could prove especially difficult for Indiana this weekend, as Indianapolis will be the site of the upcoming NCAA Final Four. (Hunter Schwarz of the Washington Post has compiled a list of all of the various entities that have expressed disapproval of the law.) Despite the controversy and the hit that the state economy appears to be ready to suffer, Pence implausibly denies that the bill has any discriminatory purpose and has renewed his commitment to the law as recently as this morning.
Now David Brooks has weighed in on the controversy in today's column. As is often the case, he presents himself as a sensible moderate, but by the end of the piece Brooks winds up taking a position that is both conservative and misguided. Brooks argues, sensibly enough, that the case of a person with a religious objection to providing services to homosexuals is an example of the "great struggle to balance civil rights and religious liberty." Presented this way, this most recent controversy is part of the unfolding of the nation's commitment to democracy, and there are bound to be some bumps and bruises along the way. Yet Brooks says that the gay rights crowd is not respecting this aspect of the American experiment because they "seem to be saying there is no valid tension between religious pluralism and equality." Instead, they hold that "claims of religious liberty are covers for anti-gay bigotry" rather than sincere religious conviction. Such a position, Brooks argues, "seems unwise both as a matter of pragmatics and as a matter of principle."
As a matter of pragmatics, the firestorm of outrage that has rained down on Indiana since the bill's passage suggests that Brooks may be mistaken. The simple reality is that the politics of gay rights are changing, and changing quickly. For the last several decades, conservative Christians have enjoyed an influence on the nation's moral and political discourse that greatly outstripped their numbers. When they enjoyed this advantage, they were not afraid to use it to pressure politicians and to enact favored policies. This is as it should be: for better or worse, the majority substantially determines the course of public morality. Now, however, the tide appears to be turning. Today, about twice as many millennials (42%) accept the morality of gay sex than they do of abortion. While the latter remains a controversial issue, the former is decreasing in its purchase on the nation's moral imagination. Even the conservative Supreme Court is expected to affirm the Constitutionality of gay marriage this summer, less because of any change of heart than because it has been overtaken by events. These developments mean that one side in this particular culture war is rising while another is falling, not, as Brooks seems to suggest, that something is being irrevocably lost in the American political tradition.
But of greater interest is Brooks's moral argument. He claims that those who oppose the Indiana law do so because they do not believe that religious freedom is violated by forcing people to serve gay and lesbian customers. If this were so, Brooks's premise that they see no restrictions on religious freedom would make sense. But he does not quote any of the law's opponents and I think that he is soundly mistaken here. I have never heard opponents of the law say that their problem is that those who want to discriminate against gays and lesbians are actually using religion to get Constitutional protections to which they would not otherwise be entitled. That religion is the main driver of the opposition to homosexuality in the United States is beyond obvious. I have never heard and, indeed, cannot imagine, anyone denying this. Instead, those that oppose the law believe in the sincerity of the religious beliefs at hand, but do not find that to be a compelling cause for legal discrimination.
What does Brooks believe? "Discrimination is always wrong," Brooks writes. "But as neighbors in a pluralistic society we try to turn philosophic clashes (about right and wrong) into neighborly problems in which different people are given space to have different lanes to lead lives." What he wants to happen when the fundamentalist Christian refuses to photograph the gay couple's wedding is that the three of them will sit down in a respectful fashion and hear each other out. (What actually happened was that the couple sued the photographer. The Indiana law would not allow them to do this.) In this idealized world, the photographer would say "I wish you all the happiness in the world but I don't feel comfortable with this. There are a lot of other great photographers in town and I'll recommend one to you. Is that OK?" The couple would respond by saying, "We respect the integrity of your religious beliefs. Because of that, we would never want to put you in a position to compromise those convictions. Thank you for the referral." Then they would all shake hands and go on about their lives.
I certainly see the appeal of this vision. A world of mutual respect, combined with tolerance of those differences on which we cannot agree, would be a great one in which to live. But this is the world we want, not the world we have. This leads me to my second significant disagreement with Brooks. He suggests, but does not quite say, that there is no overlap between the category of "sincerely held religious beliefs" and "anti-gay bigotry." Under this reasoning, if a religious belief is sincerely held then it cannot be bigoted. This position is nothing short of absurd, which is probably why Brooks does not quite commit to it. There have been strong, powerful and sincere religious convictions in favor of slavery, segregation, anti-Semitism and the oppression of women (among many other unsavory phenomena). And yet the beliefs and practices that resulted from these were, in fact, bigoted.
The government has an interest in promoting social equality. The Civil Rights Act of 1964 forbade discrimination in public accommodations, which it defined to include private businesses that are open to the public. In doing this, it recognized commerce as an activity that is public in its essence. Those who are denied access to certain goods and services are not, contra David Brooks, being treated with respect or tolerance. Since the esteemed New York Times columnist doesn't think anyone is arguing this, I'll say it here: the right of gays and lesbians to be free from discrimination is a more compelling government interest than the protection of the religious freedom to discriminate.