The recent trend of states enacting “religious freedom” and “anti-discrimination” laws has sparked passionate debate about whether the laws are truly meant to “protect sincerely held religious beliefs and moral convictions of individuals, organizations and private associations” as Mississippi Gov. Phil Bryant claims, or being used to open the door to discrimination in the name of religion. In short, the bills preemptively protect businesses from being punished for refusing to offer services to lesbian, gay, bisexual and transgender people and are in reaction to, or fear of, state laws that do the opposite: restrict businesses from refusing service based on an individual’s sexual orientation. Neither type of law yields a good outcome. The Christian bakery compelled to bake a cake for a same-sex wedding will have their religious freedom stifled on the one hand; while a law codifying the right to refuse will understandably make LGBT individuals feel legally outcast, and could arguably encourage businesses to discriminate on the other. There’s no regulation that results in no discrimination on this front.
So what should state governments do? The answer is one so simple that most people are too fired up and impatient to consider it: DO NOTHING. America was founded on a very limited number of guaranteed rights for individuals, but was otherwise designed to operate and rely on economic incentives. Businesses have a clear, natural financial motive not to discriminate: less customers equals less money. Take, for example, the Indiana Pizza shop that recently went out of business after refusing to serve individuals based on their sexual preference (http://www.usatoday.com/story/news/nation-now/2015/04/01/indiana-family-pizzeria-wont-cater-gay-weddings/70813430/).
Those same economic incentives will also decrease the likelihood that LGBT individuals will be limited in the types of services and products they can access because some clever entrepreneur will be financially incentivized to open a same-sex wedding cake service down the road from a bakery that is willing to forego income based on their religious beliefs. History lends support to this theory. It was generally large businesses that opposed state mandated discrimination during the early 1900s before it was declared unconstitutional. See Thomas Sowell, Preferential Policies, An International Perspective, William Morrow and Company, 1990, pp.20-21. Other, more critical services, such as common passenger carriers, have historically had stricter legal requirements when it comes to discrimination, and ostensibly would not be affected by a state’s lack of anti-discrimination or religious-freedom laws. See Cobb, Howard, “What is and What is Not Unlawful Discrimination by Common Carriers (1896). Historical Theses and Dissertations Collection. Paper 356.
Unfortunately “Do Nothing!”, is a faint rallying cry for politicians anxious to garner support from one side of the issue or the other, but it may be the most plausible, fair solution to this complicated quagmire.
For more information on Constitutional issues and state government policies contact Parton & Associates, PLLC.
Drafted by Corey V. Parton, Esquire.
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