Narcissism and Profitability
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Discrimination—Good and Bad

By Jonathan B. Wight

Indiana has passed a “religious freedom” restoration act (RFRA) , the key provision of which states that:

“A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (emphasis added)

The concern by gay-rights activists is that this law could be used to deny gays “public accommodation”—in other words, it could justify a humiliating denial of service. In theory, since the law is open-ended, it could also allow businesspeople to refrain from serving Jews or Muslims or Catholics if their religion so demanded.  Some of this is unlikely, since the issue of burden and compelling government interest may be interpreted by the courts to mean requiring reasonable accommodation in a public business such as a restaurant or a cab.

This has not stopped businesses like Apple and Angie’s List from attacking Indiana’s new law.  Yet many others states and the federal government apparently have similar laws on the books (see map).  Map of rfra

This is why Indiana’s Governor was totally mystified at the negative backlash this week: “"I just can't account for the hostility that's been directed at our state.”

Well, duh!  Has the governor been asleep for the past decade, during which the moral imagination of America has been aroused with sympathy for gays who want to have a normal family life?  Every person should have a right, in a place of public business, to be accorded a minimum degree of respect. There will be grey areas, however.

I am sympathetic to the argument, for example, that accommodation could in some cases impose a heavy burden on a person of faith with little compelling public interest.  Imagine that Anita Bryant, the anti-gay singer and activist, is offered a contract to sing at a gay wedding (the reason she is asked is simply to goad and humiliate her).  Forcing her to sing at such a wedding would

compel her to violate her faith and would also cause her economic and psychological harm (for the ridicule to which she would be subjected). There would be little public interest in compelling her to sing because there are plenty of other singers who would be happy to receive the work.  The RFRA would ask courts to consider the burden imposed on Anita Bryant in relation to the public’s interest.

Charles Barkley argues that because of the potential for anti-gay treatment, the NCAA should pull the Final Four basketball tournament out of Indianapolis.  Barkley says:

“Discrimination in any form is unacceptable to me…. As long as anti-gay legislation exists in any state, I strongly believe big events such as the Final Four and Super Bowl should not be held in those states’ cities.” (emphasis added)

 I agree with the sentiment, but not the phrasing.  Barkley’s wording is silly.  Some forms of discrimination are used everywhere, and need to be, according to Thomas Sowell, who has written eloquently about race relations in many books.  Everyone discriminates, all the time, and sometimes for good reasons.

If you are a faculty member you make distinctions between an “A” paper and a “C” paper—hence, you are discriminating in terms of your judgment as to academic merit. A business person tries to distinguish between someone buying a product and someone stealing a product.  That discernment involves showing legal preference toward those who are buying.

It is now the law of the land that discrimination based on race or gender is illegal, but age discrimination still exists—a movie theatre allows kids and the elderly to pay a lower ticket price. Business travelers, meanwhile, are viciously discriminated against by airline companies who gouge them.

What Barkley should say is that some particular forms of discrimination ought to be illegal—such as those that use sexual orientation or gender identity as a basis for discernment. With exceptions for the Anita Bryant cases, I hope we soon live in such a world.


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