Coyote Blog

I generally have refused to even participate in the debate over Indiana's RFRA because most of the discourse is so incredibly ill-informed that it is impossible to have a serious discussion.  But I would like to make one observation:

Here is Ruth Marcus with as good a proxy for the anti-RFRA position as I can find:

Hold whatever religious views you want: about whether women should drive, or the morality of having children out of wedlock, or whatever. Your church gets to choose (and enforce its rules). You can practice whatever your church may preach. But if you operate a business, you shouldn’t be allowed to discriminate against people based on who they are, or whom they love.

OK, that is clear enough -- if you have a business that serves the public, you must accommodate all the public equally.  You can't decide not to do business with some group of people.  But this leaves me with a question -- many of the opponents of Indiana's RFRA, from Apple Computer to the NY Times editorial page to the governor of Connecticut (which has its own RFRA, lol) called for businesses to boycott the citizens of Indiana.  Why isn't such a boycott, essentially a refusal to do business with anyone from the state of Indiana irrespective of his or her position on the RFRA, illegal/immoral under exactly Marcus's logic?  Most folks see boycotts as an important first amendment right, a way to express displeasure with a group using the power of markets, without government coersion.  But it seems to be proscribed by Marcus's definition.   Am I missing something here?

I suppose supporters of the boycott would argue that it is OK to refuse business based on political opinions but not on race or gender or sexual orientation.  But supporting the legality of gay marriage is a political opinion.  Now what?

Try as I might, I can only think of two internally consistent positions on this issue:  1.  Businesses have the freedom to accommodate whomever they want; or 2.  All businesses, perhaps as a part of the state business license requirements, must accommodate all comers no matter what.  Number one leads to some ugly, but probably rare, incidents.  Number two causes a lot of friction with other first amendment rights such as speech and religion.

Any other position must take the form of "it is legal to refuse accommodation based on some things but illegal to refuse accommodation based on other things."  There is no way to derive a dividing line between the two based on first principles, so the line becomes a political football, with no viewpoint neutrality.   Basically, accommodation law is whatever the politician of the moment says it is.  Unfortunately, this seems to be what most folks are advocating.

A few thoughts

1. This is one of those "bad policy conflicts with bad policy" decisions that I have trouble getting excited about.   The government should not be mandating tiny details of health insurance policies.  On the flip side, personal religious beliefs should not trump the rule of law (example:  the fact someone has a religion that says it is legal to beat his wife should not create an exception allowing spouse abuse).
2. That being said, the case only seems legally difficult if one completely ignores the existence of the 1993 RFRA, which most on the Left seem to want to ignore.
3. I have zero patience with the facile argument that corporations have no individual rights.  Corporations are just assemblies of people.  Our right to assembly should not cause us to lose our other rights.  If I have freedom of speech as an individual, I don't give it up when I create a corporation.
4. I am even more exhausted with the argument that opposing government subsidies of an activity is the same as opposing the activity itself.  Though half the readers who see this post will assume that I am anti-abortion or anti-contraception, which I am not. (Update:  This seems to be a prevalent argument today, though -- see here)
5. The most ignored fact of this case in my mind is the absolute insanity of the government mandating that regular, predictable purchases be covered in an insurance policy.  Intelligent health insurance policies should no more cover routine contraception than home insurance policies should cover the cost of light bulb replacements.   Sure, I have no problem if some private person wanted such a policy and a private company offered one -- but mandating this craziness is just amazingly bad policy.
6. If you really want to help women and reduce their net cost of contraception, stop requiring a prescription for certain contraceptives, like birth control pills.