Indiana’s Libertarian Moment

Christian conservatives aren’t the only defenders of religious free-association law.

Indiana Gov. Mike Pence ENLARGE
Indiana Gov. Mike Pence Photo: Darron Cummings/Associated Press

What would our press corps do for headlines without all those “rifts” and “splits” roiling the Republican Party?

No matter what the topic, the news is always of GOP divisions—between tea partiers and establishment types, between “pro-war” and “anti-war,” between social conservatives and libertarians. So right on cue the front page of the New York Times chimed in on the contretemps over Indiana’s religious-liberty law as follows: “Rights Measures Expose Divisions in G.O.P.’s Ranks.”

The reigning assumption, of course, is that the law Gov. Mike Pence signed and then gutted after the media unleashed its fury is now exacerbating the rift between business- and libertarian-inclined Republicans who favor same-sex marriage and the social conservatives who oppose it.

But is it?

The reality suggests the opposite. Today the strongest arguments for protecting the right of, say, an evangelical Christian baker to decline baking a cake for a gay wedding are not coming from religious leaders or social conservatives. They are coming from libertarians, many if not most of whom themselves support same-sex marriage.

Take New York University’s Richard Epstein, who is arguably America’s leading libertarian law professor. Mr. Epstein supports gay marriage on the grounds that, because the government has a monopoly on marriage licenses, it shouldn’t use this monopoly to withhold these licenses from couples who are gay.

But Mr. Epstein doesn’t stop here. He further argues that the same freedom of association requires that the law not be used to coerce those who disagree with gay marriage. He notes too the asymmetry of forces here, with big organizations such as the National Collegiate Athletic Association and Wal-Mart denouncing the religious-liberty law while the owner of a small Indiana pizzeria became a national new story after she told a reporter that while she happily serves gay customers, she wouldn’t feel comfortable catering a gay wedding.

“Civil-rights laws are turned upside down when used to harass small businesses with minority viewpoints,” says Mr. Epstein. “These viewpoints need constitutional space between them and the relentless ambitions of an ascendant gay rights movement that seems to have quickly forgotten that its members were once on the receiving end of the unthinking and abusive exercise of state criminal law.”

Mr. Epstein is not the only libertarian to speak out. On Fox News last week, John Stossel said the movement for gay rights has “moved from tolerance to totalitarianism.” Matt Welch, editor of Reason magazine, puts it this way:

“The bad news, for those of us on the suddenly victorious side of the gay marriage debate, is that too many people are acting like sore winners, not merely content with the revolutionary step of removing state discrimination against same-sex couples in the legal recognition of marriage, but seeking to use state power to punish anyone who refuses to lend their business services to wedding ceremonies they find objectionable.”

Undergirding the libertarian argument is as usual a larger argument for freedom. Far from simply privileging religious freedom, the libertarian case is built on a firm belief in the freedom of association for all Americans—and an abiding and healthy distrust about imposing anti-discrimination laws on private business providers unless they hold some kind of monopoly.

There is also history. In 1964, when the Supreme Court upheld the Civil Rights Act’s requirement that hotels serve African-Americans, blacks, especially in the South, effectively had their ability to travel restricted by the possibility they couldn’t secure lodging. In contrast, no one today suggests gay couples can’t find a baker or photographer for their weddings.

Back when gay marriage was first proposed, advocates pitched it this way: What can it possibly matter to you if two men or two women wed?

Since then Americans have learned: It can mean an end to your small business, it can mean your church institutions—from schools to adoption agencies—can no longer run themselves according to their principles, and, if you are a Silicon Valley CEO, it can mean you lose your job.

Whatever else this is, it certainly isn’t live-and-let-live.

Now, some of those opposed to same-sex marriage, such as Princeton professor Robert George, believe it naïve to have expected otherwise—i.e., that once same-sex marriage becomes legal the legal attacks on Christian-owned bakeries or Catholic adoption agencies are inevitable.

Perhaps. But same-sex marriage is becoming a fact of American life. For many communities with unfashionable views on issues from marriage and contraception to homosexuality and abortion—not just Christians, but Mormons, Orthodox Jews and organizations from Hobby Lobby to the Boy Scouts—the priority is no longer whether their views will be reflected in the social order.

For these people, usually characterized as social conservatives, the question is more fundamental: Will they retain sufficient freedom to live their lives and run their institutions in accord with their faith?

The irony of Indiana suggests that it may be the libertarians who have the strongest arguments for defending them.


About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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