Would It Have Been Better To Let The Indiana Religious Freedom Law Stand And Let The Internet And Free Market Work?

from the yelping-bigots dept

Assuming you have a passing interest in politics and were awake for the past week or so, you’ve likely already heard all about Indiana’s recently passed Religious Freedom Restoration Act. Designed similarly to laws in several other states, including my home state of Illinois, the bill was designed to confer religious expression rights (further than the federal protection that already exists for individuals) onto business owners and the companies they operate. Depending on what you read and where you read it, there has been a great deal of confusion over what this law does and where it departs from similar laws in other states. The one distinction that appears to really matter, should you be interested, is that most of these kinds of laws include language that forbid their invocation as a defense at trial for discrimination in which the government is not a party, whereas Indiana’s law didn’t make that distinction. Indiana has since amended the law to protect the LGBT community, which has been particularly vocal in its opposition. Since the right of refusal on religious grounds to serve that community was really the impetus for this law to begin with, that pretty much leaves us where we were before the law was in place at all. Whether you agree with the law or think it legalized bigotry is a discussion for another place. What interests me is whether now, in the age of a democratized message available via the internet, the outcry to change the law was the most efficient course of action at all.

When discussing the benefits of the First Amendment, free speech, and the right to freely express ideas, most often the focus is placed on the value of protecting speech for the sake of the speakers. After all, should we begin to allow censorship of some speech, we might some day find that speech we wish to use has become censored. It’s a perfectly valid argument, but an incomplete one, because the other benefit of free speech is that, assuming it’s exercised, we don’t have to wonder about the stances and positions people take. What Indiana’s law did, in its original form, was offer business entities the same right to expose their opinions in the same way. And, in the age of Yelp reviews and online activism, are we really better off taking actions that push free speech, even speech we detest, underground, or are we better off giving companies an avenue for exposure.

Think again about Yelp reviews and recall the general trend for the stories we cover about them at Techdirt. Those posts tend to be of a couple varieties. Many are the sort that involve business owners suing over negative Yelp reviews. A couple of things to note about this when framed by a discussion on the Indiana law: First, this reaction to Yelp reviews means that online reviews matter to businesses, and with good reason. Customer reviews are often a first-stop on the consumer’s road to deciding where to spend their dollar. Online reviews are a powerful thing, in other words. As for suing over negative reviews, I think the case that such actions are valid would be diminished by a law that confers more expression rights to companies than not. After all, either you’re for free speech or you aren’t, Mr. Indiana Company. The road is traveled in both directions.

The other kind of Techdirt post you see concerning online customer reviews is of the activist sort, where a company has acted positively or poorly in one way or another and the general public took to review sites, such as Yelp, Google Plus, or Facebook pages, to express their support or disgust. You may recall the the whole Amy’s Baking Company fiasco that started with some crazy customer stories on Yelp, spun out of control on the show Kitchen Nightmares, and then exploded all over social media and review sites shortly thereafter. There, too, the owners of the establishment blamed Yelp reviews and “haters” for their misery, showing the power of the platform. If activism is a valid tool at all, it’s perhaps at its most powerful in the online world, where connections exist everywhere and activism can be democratized across city, state, and national lines.

So, in light of all that, the question for both sides of the argument on the Indiana law is whether either side was best served by amending the law and responding to the backlash, or if we would have all been better off trusting that enough information is shared at this point, and our country has made enough progress, generally speaking, to simply trust the combination of market forces and online speech and let the law stand as it was originally written. It feels strange to argue this, I’ll admit, but I think the latter might be true. Were I the one making these decisions, I would be tempted to let Indiana’s companies have their way and all the speech and rights to refuse service they might choose to take advantage of. Not because I would agree with their theology or their politics, but because I would trust the general public and the internet to work as a market force and solve the problem without further legislation.

Filed Under: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Would It Have Been Better To Let The Indiana Religious Freedom Law Stand And Let The Internet And Free Market Work?”

Subscribe: RSS Leave a comment
JoeCool (profile) says:

Re: Re:

The law was good for one reason – you finally knew what businesses thought about you. Think about it a moment, do you want to do business with a restaurant (for example) that talks shit about you behind your back, maybe spitting in your food? How would you know if that’s how they feel about you if they’re forbidden by law from telling you? I’d rather know they hated me so I could avoid them. That’s why free speech is so important – even hate speech is important since it lets you know who hates you. The recent push to outlaw hate speech is going to backfire on those countries that do so.

John Fenderson (profile) says:

Re: Re: Re:

Personally, I don’t care at all what “a business” thinks of me. (Scare quotes because businesses don’t think. The people who own them or work for them do). It doesn’t matter one bit if they talk smack about me in the back room where I can’t hear them.

What matters is how they treat me. If they provide the goods and services promised and politely, without sabotaging them (such as spitting in food), then they can hate on me all they want when I’m not around. It’s no skin off my nose.

Anonymous Coward says:

Re: Re: Re: Re:

Do you believe you have a right to their service and goods even if they don’t want you as a customer?

This is where the law seemed reasonable to me – it allowed businesses to discriminate based on their own beliefs who they would serve and/or sell to – a right that most business owners proclaim they have anyway.

How many times have you seen signs claiming a business can refuse service to anyone they wish for any reason? I see these signs all the time… are they against the law? Do business owners lose the right to choose who their customers are?

John Fenderson (profile) says:

Re: Re: Re:2 Re:

“Do you believe you have a right to their service and goods even if they don’t want you as a customer?”

It all depends. Regardless of that, I was talking about when the business is entirely willing to provide goods and services to me, but secretly despise me.

“How many times have you seen signs claiming a business can refuse service to anyone they wish for any reason? I see these signs all the time… are they against the law?”

No, they’re not. We are all, including businesses, on legally safe ground to discriminate against anyone for any reason that isn’t in the list of prohibited reasons (race, religion, etc.)

Anonymous Coward says:

Re: Re: Re:3 Re:

>> “We are all, including businesses, on legally safe ground to discriminate against anyone for any reason that isn’t in the list of prohibited reasons (race, religion, etc.)”

If you were right, there’d be no need for this attempt at statute. In actuality, a business needs a cause before refusing service. Businesses are not people, they’re licensed legal fictions.

Uriel-238 (profile) says:

Re: Re: Re:2 "Do you believe you have a right to their service and goods even if they don't want you as a customer?"

I think it gets tricky right there.

If I don’t want you as a customer on the grounds that you have dark skin, that’s entirely intolerable.

If I don’t want you as a customer because you dress in spiky leathers and drive a loud motorcycle, no-one cares much.

If I don’t want you as a customer because you are a man who is in a romantic relationship with another man, that’s controversial, applauded by some identity demographics and outrageous to others.

And this is not addressing other circumstantial elements, such as the business in question being the only GM-friendly mechanic in the region, or that all wedding bakeries in the area are part of a price-fixing syndicate with a no fags policy.

At this point our society’s current pursuit of social equality has been in the form of acknowledging one minority at a time, and considering the current state of gay marriage, the ACA Contraceptive Coverage debacle and the Hobby Lobby outcome, and most recently our demonstration at Ferguson of just how well we’ve integrated African Americans, we don’t seem to be progressing down the list very fast, rather preferring to indulge the delicate sensibilities of the white male mainstream.

Uriel-238 (profile) says:

Re: Re: it takes less than religious nutterry to warrant spit in your food.

People are very often hostile to anything or anyone they deem is an acceptable target, and are, given means and opportunity, incapable of restraining themselves from committing petty hostility.

Religious nuthood merely designates targets. And plenty of religious nuts are capable of retaining enough civility to refrain from direct action against those whom they despise.

Fewer of us are willing to take action that will cause permanent harm or has a known high risk of permanent harm, so while servers might be willing to spit or urinate in food they are trusted to prepare, they might not be willing to lace it with arsonic or cyanide.

…or, I’m giving human beings the benefit of the doubt and they just don’t have easy access to known poisons, or are afraid of getting discovered when an entire wedding party drops dead soon after the cake is cut.

To be fair we don’t have many studies on people willing to murder if given means, opportunity and full clemency. Plenty of people on the internet, say on /b/ will claim to be eager to gun down a defenseless black man, but we don’t have the means to provide them with an appointment with a victim and a weapon* to see if they would actually pull the trigger and kill a man.

* Or, as in the Milgrim study, a convincing illusion thereof.

toyotabedzrock (profile) says:

Re: Re:

One news outlet found a town where every bakery they went to would refuse a gay customer in Georgia. You have to watch till closer to the end to see where they talk about asking all the florists in the area. https://www.youtube.com/watch?v=ZJTtENk2dMk

People do not act in self interested ways as economics people think. And sometimes what seems to be anti self interest might bring them fellow bigoted business.

Anonymous Coward says:

Difference between micro or macro scale

From my perspective that is exactly what happened albeit at a macro scale instead of a micro scale. The protests were the free speech from the people who didn’t like the law and threatened to not do business in an environment where the government allows discrimination. The state decided to change the law due to negative publicity and because people / business said they would not business with them (the state). The change was not due to a lawsuit or other threat, it was due to free speech.

Additionally, part of the reason the more micro boycott / bad review process may not be acceptable is you can quickly run into situations in rural or low population density areas where someone is excessively burdened compared to their neighbors for basic services. Should someone have to drive 10, 50, 100 miles or more out of the way for groceries because the local store owner is a bigot? In such a scenario I doubt some negative yelp reviews would impact the store owner. Anti-discrimination laws are designed to protect everyone, not just those with easy alternatives.

Anonymous Coward says:

Re: Difference between micro or macro scale

This was my contention on the matter for all the people who were spouting libertarian ideas about how the free market was going to just solve all the problems. The fact that the Memories Pizza place had so much money donated to a GoFundMe campaign illustrates that mere boycotts and bad press won’t put bigots out of business or correct their anti-social behavior. Bigots will just stick together and there are enough of them to generate business for each other (unless you decided to set up shop in a west coast liberal bastion like San Francisco, Portland, or Seattle – where such discrimination is already illegal anyway…).

Yes, you want people to change their attitudes in a natural ways, but some people will never change and they’ll raise their children to be bigots or racists or misogynists, or whatever topic/people they like to focus their irrational hate upon. We have laws to prevent people from spitting in our food, regardless of their reasons for doing so. Your business will go down significantly when you get arrested for that and the health department shuts you down for violations and it gets repeated ad nauseum in the news.

pixelpusher220 (profile) says:

In theory

yes let the system work.

In practice, not so much. Allowing discrimination to manifest and people to suffer while the ‘system’ meanders its way to an unknown destination doesn’t help those people.

Unlike a business entity, the State of Indiana won’t go out of business so the discrimination and suffering would continue much longer and only get worse as the economy of Indiana suffered.

Allowing this to stand is Machiavellian…people suffered longer but now it’s ok.

That’s not ok at least to me.

radix (profile) says:

You can't legislate bigotry away.

But you can at least shine a light on it. Making it “illegal” only drive it underground where it becomes more entrenched and harder to educate.

I’ve long been in favor of letting any business serve any people they want, but with one important regulation: Any restrictions they want to implement have to be posted prominently on the front door. After all, if this is about business owners’ beliefs, and they are proud enough of them to turn people away, they should be proud enough of them to show them to the world.

It may not change many minds, but forcing them to do something they don’t believe in won’t either. At least this way people can make informed decisions.

Pragmatic says:

Re: Re: You can't legislate bigotry away.

Thank you.

I would trust the general public and the internet to work as a market force and solve the problem without further legislation.

That only works on popular causes if you can get enough support to affect the demand for the products or services on offer by the business involved. What if you’re part of a small minority that nobody cares two hoots about? Who is going to fight your corner then?

For market forces to work in your favor you’ve got to be popular. If you’re not, and you can’t work people up into enough of a froth to tweet or otherwise engage in activism on your behalf, you’re screwed. That, my friends, is the problem with relying on the Invisible Hand: unless you are popular or in a position to exert some control, you may find it’s flipping the bird at you.

It’s the same with the Internet Mob of Great Justice: if you don’t have an emotional hook or a big enough following to garner the support you need, you’ll be busy for the next few months making sock puppet accounts in an effort to pretend you have support. Good luck with that, bearing in mind that if your astroturfing is discovered, that mob you’re trying to rally may well turn around and go to town on you instead of your chosen target.

The below story is an example of fraudulently attempting to sic the internet on someone and the backlash that followed, but you get the idea.


For the media, the mob, and the market to work in your favor you’ve got persuade enough people to care about your tragic plight, otherwise you’re on your own.

Uriel-238 (profile) says:

Re: You can't legislate bigotry away.

You can’t educate it away either. Not that many school districts in the US even try.

Bigotry is a big human instinct. We are driven to believe that weirdos corrupt the tribe, and that people with odd-colored skin or strange dialects or unfamiliar customs are corrupt and wrong and we should throw rocks at them and chase this off. Some suspect that before germ theory and centralized disease control this was a means that we kept plagues from killing off too many.

But for the last few thousand years, we’ve been hacking the system, engaging in tricks to fool nations into engaging into acts of solidarity. The most recent, patriotism towards flags and nations (rather than individual kings) was a big one. And that’s allowed our countries to get pretty big.

But now they’re bigger than that, and the seams of our nations fall apart as those who fit outside the mainstream, whether dark-skinned people or disobedient women or non-Christians or people with complicated disabilities are getting sidelined more and more.

And while you may be okay with some people getting short shrift, that does run contrary to a the principle of social equality, on which our nation was forged. (And when the nations laws work to disenfranchise us outside the norm, it dis-incentivizes us to cooperate with society in accordance to law.)

And whichever society DOES figure out how to effectively reduce bigotry better than we do, numbers and pluralism will make for a bigger, sophisticated infrastructure, and innovation and that society will beat ours, whether through economics, culture or sheer conquest.

So it’s not a problem we can merely dismiss as unsolvable.

BW says:

Re: You can't legislate bigotry away.

I agree you can’t legislate bigotry away, BUT bigotry, being an internal state (until the idiots open their mouths) does not need to be legislated away. The ACTIONS that bigots TAKE can and should be legislated away. Let them think (I use the term loosely) whatever they want, so long as they are prevented from hurting others.

Mason Wheeler (profile) says:

My first job out of high school was at a Wendy’s. There was one college-age girl who was a regular customer, who would frequently come in and behave in disruptive ways, annoying other customers. After a while, the store manager decided enough was enough, and he told her that she was no longer welcome, period, and that if she ever came back he would call the cops on her.

She never came back. If she had, he would have been completely within his rights to have her arrested for trespassing, even though it was a business open to the general public. This was without a doubt an act of discrimination on his part, saying “we will serve customers here, but not you,” but I don’t think any reasonable person would find fault with it. Freedom of association, including the freedom to refuse to do business with a person, is protected by the First Amendment.

The problem with laws against discrimination is that they get “a foot in the door.” Once precedent is established to prohibit the exercise of one’s First Amendment right to freedom of association by prohibiting discrimination based on X, it’s that much easier to then turn around and pass a new law to limit this right again, by prohibiting discrimination based on Y, and then another that prohibits discrimination based on Z. Considering how often we see articles here on Techdirt about someone dragging someone into court for a “crime” that boils down to “he hurt my feelings,” it’s not at all inconceivable that some future anti-discrimination law could prohibit the exercise of freedom of association based on discrimination against people being obnoxious, for fear of hurting the obnoxious person’s feelings.

And I don’t know about the rest of you, but I don’t want to live in a world where the law would have been on her side in the hypothetical situation where the manager called the cops on her.

It’s important to remember that businesses exist for the purpose of making money. The immediate effect of not doing business with someone is that you don’t get their money. The second-order effect of not doing business with someone is that you could get a reputation for it, which could potentially drive away customers that you otherwise would have done business with, and then you don’t get their money either. So think about that for a second.

If someone who is in business to make money feels so strongly about a potential customer that they are willing to put themselves in that position, for whatever reason, why should the law take that away from them? As long as their refusal do do business with this person does not directly cause harm to them, (note: basic needs and emergency services, such as hospitals, police and fire protection, etc. need to be held to a much higher standard,) the only true problem posed by discrimination is “felony interference with self-esteem.” Which, just like “felony interference with a business model,” is a ridiculous thing to make a real crime.


Re: Historical amnesia.

…that’s fine in some ideal fantasy land but here in the real world we have to deal with things like Apartheid and Jim Crow and the tendency for people to impose these things on others in direct contradiction to our founding ideals.

Puritans only became a beacon of individual liberty much later once historical amnesia began to set in.

Mason Wheeler (profile) says:

Re: Re: Historical amnesia.

False analogy. Apartheid and Jim Crow were both government-enforced discrimination, where if a business owner had thought there was nothing wrong with the people being discriminated against, and wanted to treat them equally to everyone else, he’d have been breaking the law. Anti-discrimination laws raise exactly the same problem, just in the opposite direction. Forcing someone to violate their conscience in the name of “not hurting someone’s feelings” is something that should never be tolerated in a free society. That’s far more in contradiction to our founding ideals!

T Teshima (profile) says:

Re: Re: Re: Historical amnesia.

Sorry, but you must have amnesia yourself. Read up on what racial discrimination really was. Society tolerated and supported racial discrimination. It took federal laws and tons of lawsuits to stop blatant discrimination. Are you really proposing we go back to the 1930’s and let any sort of discrimination be legal again?

Mason Wheeler (profile) says:

Re: Re: Re:2 Historical amnesia.

So… what, then? Are you claiming that two wrongs make a right? The ends justify the means?

That’s the thing about the First Amendment. You have to support it even in cases where the effect is something you find distasteful, because if you let a well-intentioned exception chip away at it, it sets a precedent that will, sooner or later, be expanded upon in some way that acts against what you believe is good instead of in favor of it.

The only valid exception is to ban things that actively cause harm per se, because that is the overarching philosophical purpose of law itself in a democracy: to protect citizens from harm. And “don’t hurt people’s feelings” simply does not clear this high bar.

Dark Helmet (profile) says:

Re: Re: Re:3 Historical amnesia.

“That’s the thing about the First Amendment. You have to support it even in cases where the effect is something you find distasteful”

You want to be very careful about invoking the 1st Amendment to defend a law giving preferential rights to religious groups.

If you want an argument that this law was unconstitutional, I could quite easily make one: it guarantees the rights of some citizens that can’t be enjoyed by others. For instance, an atheist could never claim his right to discrimination in service on religious grounds. I would think this would fall, if anything, under unequal protections under the law, and likely violates the 1st Amendment as the government is to take no position on questions to do with religion or God.

Mason Wheeler (profile) says:

Re: Re: Re:4 Historical amnesia.

You want to be very careful about invoking the 1st Amendment to defend a law giving preferential rights to religious groups.

Both the religious rights claimed by the one side of this issue and the LGBT-as-protected-minority status rights claimed by the other side are red herrings conveniently used by each side to rally supporters and demonize opponents, and both are ultimately irrelevant. Creating a law to officially uphold religious freedom in this specific case should not be necessary in the first place, as the actual issue is one of freedom of association, not freedom of religion. Both, however, are protected by the First Amendment and must be supported even in cases when the effect is something you find distasteful.

zboot (profile) says:

Re: Re: Re: Historical amnesia.

Hmm, then why do so many people seem to think it is ok for the government to have laws that violate my constitutional right to kill everyone I don’t like?

Clearly, we establish laws in part to punish behavior that we as a society feel is wrong. Just like we don’t care about the hurt conscience of a psychopath serial killer, we also don’t care about the hurt conscience of racists or homophobes.

Uriel-238 (profile) says:

Re: Re: Re:2 I'm pretty sure the Nineth amendment manages that.

Paraphrasing, your rights end where my rights begin.

And we’ve never established the right for people to not be offended by weirdos in their midst. Though the Hobby Lobby ruling by SCOTUS made a strong leap in that direction, granted the consensus of five Catholic justices.

As things are, a police officer has to right to enforce what he feels is right (arresting / assaulting those that behave in ways that he feels is wrong.) given that we cannot, nor do not expect a law-enforcement officer to know all the laws he is expected to enforce. Therefore police are given the latitude to enforce based on gut feelings.

So if they are offended by gays or blacks or goths or women in loose clothing, they have the precedent-demonstrated right to assault them with impunity.

So, yes, if you are a cop, then your hurt conscience and your sidearm skills are the only things that matter, your tendencies towards psychopathy, homophobia or racism notwithstanding.

Anonymous Coward says:

Re: Re: Time to be pedantic

It is actually discrimination. It, however is not racism or bigotry. We’ve come to redefine discrimination as a synonym to racism or bigotry, but the earlier definition, “the power of making fine distinctions”, is an accepted definition and one that, I think, predates the synonymous definition with racism or bigotry.

sorrykb (profile) says:

Re: Re:

Apples and oranges. Or, less metaphorically, the situation you described is based on someone’s actions in the business, not on their identity.

Anti-discrimination laws still allow businesses to remove customers or refuse service on the basis of their behavior in the shop/restaurant/whatever. So your old employer would not have had a problem (unless of course the rules about behavior were enforced in a discriminatory manner).

Anonymous Coward says:

Re: Re:

You misunderstand what civil rights laws do. The manager in your example would and is able to bar that disruptive customer from service. What he can’t do is refuse service to someone from a specific protected group, such as race or religion. LGBT people are becoming such a protected group. That is really what this whole fight has been about. And discrimination is about much more than self esteem. I suggest you read up on the civil rights movement and what life was like for people of color back in the 60’s.

Mason Wheeler (profile) says:

Re: Re: Re:

The manager in your example would and is able to bar that disruptive customer from service. What he can’t do is refuse service to someone from a specific protected group, such as race or religion. LGBT people are becoming such a protected group.

I’m sure you didn’t mean what you literally said, but what you said, as you said it, highlights one of the biggest problems with anti-discrimination laws. If he can’t refuse service to a person of a specific protected group, then what happens if the obnoxious serial troublemaker happens to be black? Or lesbian? Or a black lesbian? She’s already female; isn’t it bad enough to discriminate against women?

Yes, what the law actually says that it’s not permitted to discriminate on the basis of protected status, but in practice there’s a very fine line between “because” and “if,” one that gets exploited pretty regularly. It’s yet another case of a well-intentioned law that turns out to be an open invitation to abuse.

I suggest you read up on the civil rights movement and what life was like for people of color back in the 60’s.

What makes you think I haven’t? But as I’ve mentioned elsewhere in this page, the root cause of these problems was pro-discrimination laws, (colloquially known as “Jim Crow” laws,) under which a hypothetical business owner who didn’t believe in discrimination and wanted to treat everyone equally could have faced liability. Once those laws were done away with, things got a lot better for black people very quickly.

Anti-discrimination laws and pro-discrimination laws are the exact same problem–using legal pressure to force a person to violate their conscience and infringe upon their First Amendment right to freedom of association–expressed in opposite directions. Neither one has any legitimacy.

T Teshima (profile) says:

Re: Re: Re: Re:

What history books did you read. You think just because the laws were off the books, that stopped businesses from discriminating? Businesses only stopped when they started getting sued and taken to court. By the way, Jim Crow laws were only in the south. The rest of the country was quite happy to discriminate without laws to back them up. I live in Chicago, and discrimination was as bad here as in any southern state. And it only stopped when people were forced to stop discriminating by laws banning discrimination.

Anonymous Coward says:

Re: you seem not to have a good grasp on the definition of discriminatory behavior

Prejudiced behavior, using your example, would be if the young girl you referred to wore let’s say gold hoop earrings. Now your boss refuses to serve anyone wearing gold hoop earrings even if they have done nothing wrong. That’s discrimination. Your example is just good sense. Discriminating against everyone who wears gold hoop earrings is discrimination and crazy. Got it?

Pronounce (profile) says:

The passage was a disappointment to me

you wrote my thoughts well. I was hoping to see self correction due to social media.

Gamergate, Indiana’s Freedom of Religion law, or Hilliary’s emails, and et al nauseum. It seems to me that we have an over-abundance of activists waiting to bring the wrath of God down on someone all the time now days.

I typical attribute this behavior to dissatisfied people. So do Americans in general feel like they were promised something other than what they got?

Quiet Lurcker says:

Eliminate discrimination by ... violating the Constitution

Instead of opening the door to the possibility a subset of businesses and people might discriminate against another subset of all businesses and government, the government is prohibiting an entire class of people and businesses from engaging in constitutionally protected acts.

Not exactly good thinking there.

Chris Brand says:

Prevention versus cure

You could extend that argument to basically any form of “consumer protection” legislation. “So BigBad Pharmacy Co sells drugs that kill 9 users out of 10, enough of their relatives will give them bad reviews on yelp and they’ll be forced to stop”.

It’s arguable, but says that it’s acceptable for a number of people to be harmed in some way before the market corrects the problem. Whereas legislation will, at least in theory, prevent that harm to those people who suffer when the bad activity first starts.

That says to me that which corrective mechanism is appropriate probably depends on the level of harm that is forecast.

Of course there’s also the fact that the laws of a society effectively document that beliefs of that society. I have no doubt that there are many Americans who would support the idea that America stands for the idea of “you get all the freedom you can negotiate for yourself”.

Mason Wheeler (profile) says:

Re: Prevention versus cure

You could extend that argument to basically any form of “consumer protection” legislation. “So BigBad Pharmacy Co sells drugs that kill 9 users out of 10, enough of their relatives will give them bad reviews on yelp and they’ll be forced to stop”.

…which is why, in my comment, I clearly distinguished between hurt feelings and real harm, and stated that real harm needs to be held to a much higher standard. But if a restaurant owner wants to say “we don’t serve your kind here,” fine. Let him. Because what’s going to happen is, the guy down the street will open up a restaurant that caters to “your kind,” and make a ton of money off their business, even if they’re a small minority, due to the Long Tail effect.

Anonymous Coward says:

Re: Re: Prevention versus cure

Because what’s going to happen is, the guy down the street will in theory open up a restaurant that caters to “your kind,” and in theory make a ton of money off their business, …

FTFY. Making a ton of money off business is not so easy in practice.

Consider a bigotry that prohibits anyone from serving anyone named, specifically, “John Smith”. If there’s only a handful of John Smiths in the state, the restaurant would have to base the bulk of its revenue off of people who are not “John Smith” because there would not be enough business solely from Smiths to pay operating costs of the restaurant. And “John Smiths will simply come from farther away because it’s the only restaurant that will serve them” misses that at some point, John Smiths will decide to Do Without rather than travel that far.

Now because you’re a “John Smith serving restaurant”, you either keep that fact quiet, in which case you fail to sell yourself to your target audience, or you tell the world – which invites backlash from the John Smith hating bigots and diminishes your customer base. What do you do?

Mason Wheeler (profile) says:

Re: Re: Re: Prevention versus cure

Yes, but now your example is just getting silly. As a general rule, the smaller a group is, the less people there are who are going to have a problem with them for whatever reason. If there really was a restaurant who didn’t want to serve “people named John Smith,” I’d find it highly unlikely that there would be even one other restaurant in the same city whose owner holds the same bias, which means that the impact on John Smith’s choices is minimal even without a new place having to open up to cater to him.

Ambrellite (profile) says:

Letting the market work is often great, but I think Geigner is indulging in wishful thinking here. Women, for instance, still struggle against institutional sexism in many places, even though they’re protected by anti-discrimination laws (and just recall how sexist our society was before they were enacted!). The market hasn’t exactly fixed the problem, even though women are 50% of it.

The market (as a whole) can handle isolated cases of prejudice, but it’s obviously incapable of challenging institutional bigotry, and instead perpetuates whatever the social norms are.

Anonymous Coward says:

I’m of the opinion that John Stossel got it right with his column.

Taking it on a tangent, the government creates minority groups that it shuns – and makes it illegal to serve. As an entrepreneur, I would like to open a restaurant that caters to smokers – meaning that anyone who comes into the restaurant, or works in the restaurant understands that there will be smoking. I cannot open such a restaurant due to laws passed in almost every state/municipality.

You may find smoking to be objectionable, but it is legal. Why am I being stopped from helping an underserved minority?

Charles Roth (profile) says:

If the Market CAN work...

The “let the market work” theory has some appeal.

But even in the best scenario, the market can only work if there IS a market. Meaning, IF there are readily available choices if one ‘vendor’ chooses to discriminate against me (or anyone in particular).

If all of the vendors in an area discriminate the same way… then there’s no market. If I need something in a hurry, and only one vendor is open, then there’s no market. (Think “morning after” pills, for example.)

Corey Yoquelet (user link) says:

The more progress that is made, the more backlash there will be. Local codes and laws and opprobrium against discriminatory ones does little to remedy the fact that Americans with minority gender identities and orientations can be legally fired, evicted and targeted in hate crimes in most states states and at the Federal level. If you want to do something, demand ‪‪#‎CivilRightsForAllAmericans‬ and share and sign these petitions:



Vel the Enigmatic says:

The real problem is that attempting to even make this law come out well is entirely impossible, or any such laws like it.

– You side with the LGBT community (or whatever minority) and say businesses can’t refuse service to people on the ground of religious morality and scripture, the religious community (notably Christians and similar religious ideologies) will feel oppressed cause they’re forced to serve them against their own religiously-based moral conscience.

– You side with the religious community (again, notably Christians and similar ideologies). Then the LGBT community will feel oppressed, cause they are being refused services those same people would’ve given to someone who isn’t LGBT (marriage, bakeries, photos etc) based on religiously-based morality and scripture.

The biggest problem is that going with either side of this issue both serves the social equality agenda and hinders it at the same time:

– On the one hand you’ve made it so everyone and their mother, brother, etc, regardless of their sexual orientation, etc, can now access these services the business owners with religion-based morality previously refused them. However, now the religious people are upset cause they can’t refuse them based on scripture and said morality.

– On the other, you’ve made it so all those business owners can now refuse anyone who is LGBT irregardless of other statuses, ethnicity, etc, based purely on religiously-based morality and scripture. Now the LGBT community is upset cause discrimination against them (based on religious belief and morality) has been codified into law yet again, in yet another state.

Regardless which side wins, it’s both a win and a loss for social equality. I however think a good wealth of us know which one is the lesser of the two so-called “evils” here.

Uriel-238 (profile) says:

Re: Oppressed-feeling Christians

I think you raise a valid question, namely if we should concern ourselves with oppressed-feeling Christians.

Because you know the Mormons certainly feel oppressed that we force them to tolerate the presence of Lamanites (dark-skinned people) amongst their ranks, and would like businesses that exclude them.

And I bet some of the more conservative Muslim sects take offense that women are served in the establishments they themselves patronize, and they only do so because it’s the same everywhere else.

If Mormon businesses are not ethically allowed to discriminate against dark-skined people, why would conservative christian businesses be allowed under the same ethical model to discriminate against gays and loose-moraled women? (e.g. women who take birth control). If your morality allows the latter discrimination, why doesn’t it allow for the former?

Because of the structure of our legal system, where we rule against the person’s right to be bigoted against others on a characteristic-by-characteristic basis, we end up with the situation we have, where it’s okay to discriminate against goths or gamers or ugly people or crazy people but it’s not okay to discriminate against black people. And it may or may not be okay to discriminate against gays or women depending on how many Christians you have in office…or Roman Catholics you have in SCOTUS.

May says:


Some of my friends actually think I am gay because I ALWAYS talk about how LGBT people are just like us and all that awesome stuff. I think what really bothered me is Tim Cook wanting to open an Apple Story in SAUDI ARABIA where you can be killed if you participate in homosexual acts but he won’t work with Indiana! I am not saying I support the law cause I find it stupid; seriously though what’s more important in the end, money or equality?

Freddy says:

It's having to endorse a position is what is wrong

It is not the type of customer that is the problem here.
It is the business owner having to endorse the customers beliefs or position is what is wrong. Why should the business owner have to agree with the customers position?

Some examples…
A Christian cake shop owner is happy to sell anyone a cake.
However, having to WRITE ON THE CAKE something like “Gay is Ok”, or, “Christians are nuts” is what they object to.

A Jewish business is happy to decorate and hire out their hall for functions is ok.
The Pro-Nazi gethering where they want the business to put up swastikas in the hall and signs saying Hitler was right to slaughter the Jews would be something they object to and they would refuse the hire.

A negro business that sells pizzas. A KKK meeting that wants this same business to cater for them with white boxes with the words “All niggers should be hung” is not ok.

There does not seem to be this distinction going on in the debate. Why should anyone be forced to agree with another’s position? The discrimination seems to be the other way around. Can you go into a shop and get the owner to write on what you are purchasing “The owner of this establishment is a dickhead” and then sue them in court if they refuse saying they would not sell me the product because I’m a …. ?

Vel the Enigmatic says:

Re: It's having to endorse a position is what is wrong

What you’re not quite understanding here is that it doesn’t have to do with the business owner having to agree with the beliefs of the customer.

It’s about people who hold religion-based morals, principles, and beliefs denying people services they want based the aforementioned 3 things (and in some cases, that they need).

They are being petty is what they are: “I won’t serve you because you’re gay” is just as bad as if someone today said “I won’t serve you because you’re a negro” or “I won’t serve you because you’re a Jap/German/Jew/etc.”

The law before it was amended was basically legalized discrimination against the LGBT community and beyond, depending on the target of said discrimination.

Freddie says:

Re: Re: It's having to endorse a position is what is wrong

I’m sorry but you are not getting my point. I understand what you are saying.

A court case against a Christian flower shop owner happened. A regular customer who is known to the shop owner as Gay and regularly buys flowers at the shop, and the shop owner knows they are gay was happy to sell them flowers. This happened for quite some time.

The gay person asked the shop owner to provide and set up flowers for the gay persons gay wedding. The shop owner refused as they did not want to endorse the position of the gay person. They don’t agree in gay marriage. The gay person sued.

You see the shop owner is happy to sell the flowers and has done so in the past. However having to set up the wedding hall is tantamount to endorsing the gay marriage position which they fundamentally disagreed with. Why does the shop owner have to do that extra step if they don’t want to?

Can I go to a gay run cake shop and threaten to sue them if they don’t provide a cake WITH writing on the cake that says “All gay behaviour is wrong”? They will refuse to write the writing but will probably and happily sell the cake. The extra step is the writing on the cake that is the issue here. NOT the selling of the cake to a person that lives a life you disagree with.

Vel the Enigmatic says:

Re: Re: Re: It's having to endorse a position is what is wrong

Would you refuse medical treatment to someone if they were wearing a shirt that say “Gay is Okay!” just because it grates against your beliefs?

That’s similar to what you’re suggesting except it’s much more severe and dire than icing some writing on a cake, or setting up a wedding hall.

By your logic, why should an Emergency Respondent take that extra step to ensure the person lives to see another sunrise if the position they hold is one they fundamentally disagree with?

That’s how far this bill’s broadness was.

You do it because it A: Gets you money, and B: it’s the truly ethical thing to do.

T Teshima (profile) says:

Re: Re: Re: It's having to endorse a position is what is wrong

Actually, they would not have to make a cake with a hateful message. They would be fully within the law to refuse to make the cake, because they aren’t discriminating based on race, sex, religion, or sexual orientation. It’s where businesses discriminate against these specific groups is where they are violating the law. Should the bakery be allowed to refuse to make a cake for a wedding of a black man and white woman? Or for a muslin wedding?

BW (profile) says:

My new religion...

I just had a revelation from the angel GloopGloop. My new religion, based on the Bible, but with revelations from GloopGloop, which includes some massive revisions to the old version of the Bible while still (paradoxically) fulfilling the Bible, includes instructions that God commands me to…well, it’s a long list.

Suffice it to say: I can get paid by “working” for a person or government, but I can’t be made to do any work. By the way, my new religion of called Gloopianism.

Dark Helmet (profile) says:

Re: Seriously?


Alright, Tim, you are not seeing the obvious here. There was a time when companies could segregate based on skin color. Do you think that should have been left alone, too? Jeezuz, dude, wtf?”

You’re missing my entire point, which you would have gotten had you read the post carefully. My entire point was that society in general MAY have progressed enough when, coupled with the democratizing force of the internet, renders the blowback over this law and its amending unnecessary. I think anyone who reads me here knows quite well which side of the LGBT rights issue I’m on.

Put another way, the war isn’t supposed to go on eternally. You craft civil rights laws because society can’t do the work of protecting minorities themselves. But once society CAN do that work? Then you don’t go on crafting new laws, because there’s no need. I happen to be hopeful that, on LGBT rights, perhaps that time has arrived.

Anyone who took the post to be some endorsement of religion-based discrimination needs to read back my other work and then immediately sign up for a course in remedial literacy….

Anonymous Coward says:

Re: Re: Seriously?

Put another way, the war isn’t supposed to go on eternally. You craft civil rights laws because society can’t do the work of protecting minorities themselves. But once society CAN do that work? Then you don’t go on crafting new laws, because there’s no need. I happen to be hopeful that, on LGBT rights, perhaps that time has arrived.
This wasn’t a new civil rights law though. It was on its face a new pro-discrimination law. So arguing society can protect minorities isn’t a palatable (or even reasonable) answer when there is a sufficient portion of law makers actively writing and approving such measures. The fact the initial law was passed stomps all over your supposition that we as a society don’t need civil rights laws anymore.

As a society, in America, we still need civil rights laws to protect the interests of women, racial minorities, and non-Christians. How long have we been fighting those battles and today we arguably are no closer to having a society that “can do that work” without the existing legal protections (pay discrimination, differing legal punishment, etc.). Saying that we are there already wrt to the LGBT when gay marriage isn’t even legal at a national level is either very optimistic or very myopic of the history of the US.

schism says:

Re: Re: Seriously?

If society was where you say it is, the law wouldn’t have been written in the first place. Fortunately, there are voices that can cry out loudly enough now (thanks in no small way to the Internet) to force change where it is needed, and clearly, this needed to change. So these very recent events are the argument against your point. As long as these things continue to happen (and you know as well as I, this is not an isolated situation), there will be need to correct stupid laws. I don’t think it’s my literacy at fault here. Perhaps your argument is weak.

Karl (profile) says:

Not exactly "exposing"

What Indiana’s law did, in its original form, was offer business entities the same right to expose their opinions in the same way.

As much as I agree with the spirit of this article, this statement is way off the mark.

What Indiana’s law allowed was not simply “exposing their opinions.”

It was the legal right to discriminate against others based on those opinions. This is fundamentally different than reacting to a Yelp! review (or whatever).

It would be a completely different story if Indiana businesses were, for example, prevented from posting their disapproval of same-sex marriages. It would be very different if they were simply allowed to fire people for posting their opinions of same-sex marriage that was different from the company’s opinion (though I would definitely not approve of that, either). It is also very different from the (already-controversial) wedding photographer incident from a few years back. That case was about allowing the religious freedom of bigots to choose their clients. This will open the door for much worse forms of bigotry.

I actually grew up in Indiana. I am ashamed of this whole thing. I hope that people realize that lots and lots of folks in Indiana do not agree with this.

Djinnx (profile) says:

What if I’m a gay cop in Indiana, do I have the right to refuse service to a shop known to reject gay patrons? What if I’m a gay ambulance driver, can I refuse to help the guy who publicly refused to serve me earlier that day in front of my crew? What if I’m a gay water works official? Gay firefighter?

These businesses operate on the national, public stage. Gay people are part of the national public identity of our country, a part of the very fabric of society. Why should these business owners have the right to force the LGBT community to work for them, via public service that benefits all Americans, utilize the safety of our police and emergency services, survive thanks to our public works – all of which involve the support of people whoa re not a part of their religion, race or sexual creed – and then reject, publicly, a subsample of our population?

I see a lot of comments saying “Well just don’t shop there”, but there are plenty of real-life reasons why a person might not have other options – too young, old, firmly rooted or poor to move, limited vehicle access… what if you’re driving through Indiana, your car breaks down, the only mechanic for a hundred miles decides you must be a queer with that haircut and refuses to fix your vehicle? His shop doesn’t exist in a vacuum, it exists because LGBT soldiers fight to protect it, LGBT road crew employees paved the roads that bring him custom, LGBT factory employees built the cards he repairs. These business owners exist thanks to America. They shouldn’t be allowed to reject a chunk of America under the assumption that “it will sort itself out”.

The way it sorted itself out was with riots, speeches, marches – the civil rights movement, which is obviously still ongoing, and I’m shocked to see so many people argue against civil rights. People who are not a part of your religion, race, and sexuality HELPED GET YOU WHERE YOU ARE. They are a part of the great nation that you subsist upon. They are your fellow Americans, and America does not discriminate.

Gordon says:


Imagine there is a bakery in a country where same-sex marriage is not legal.

Said bakery has no problems with serving LGBT customers.
However, a customer places an order for a cake with a message supporting the legalisation of same-sex marriage. The bakery decides that it does not want to make such a cake, and declines the order.

Should they be allowed to do that, or should they be forced by law to fulfil that order?

IF the latter, why?

Djinnx (profile) says:

Re: Question

Choosing not to make a cake because you don’t like it’s content, is not the same as choosing not to serve the customer because you think/know they are gay. A business has the right not to create a product it does not want to create. It does not have the right to decline service to a person, under the assumption that serving that person is the same as creating a product.

The Religious Freedom Law makes the assumption that providing the same service to an LGBT person that you would a straight person, is somehow supporting LGBT lifestyle. It is not. It is supporting business with humans.

Uriel-238 (profile) says:

Re: Question

This could actually happen, if, say, a referendum were to be put up for vote in Kentucky, to overturn the state-constitutional amendment that prohibits gay marriage and then legalize marriage licenses.

Suppose, then, that you work for a bakery that does cakes for large parties, including a ticket for the campaigning office for this particular referendum. They don’t know if they’re going to win, but they’ve ordered a victory cake just in case.

Let’s go on to suppose that you, while not particularly concerned about gay rights, you are a staunch GOP voter, and you personally think all Democrats are communist traitors to the good moral fiber of the nation. And those guys over at the campaigning office who want to commission this cake talk there DNC talk and right there in your store confer amongst themselves about what is next on their agenda to destroy America.

Let us say, also, that you own the bakery, and it has a right-to-refuse-service policy that you usually only reserve for people without shoes or shirts, or people who are inebriated and disorderly.

You could, in this case, refuse to serve these errand-runners for their unamerican associations. If you didn’t want to be upfront about it, you could even fault them for the woman in her summer tank-top and Birkenstock sandals, which are dubious at best as shoes.

And from the sense of freedom of expression, you should be allowed to do this on account that wrongful discrimination is a thought crime. It’s just one we are compelled to do even though it is bad for business, even in Kentucky. Openly discriminating against people is indicative that your customers, when they come to you are going to be subject to judgement and not getting served for what are unpredictable reasons. And it puts a pall on the area when you have signs on your window saying Christians only. No coloreds. No gays. No Abortionists. No goths or hippies.

And yet storekeeps and clerks are compelled. They look like complete jerks every time but they just can’t help themselves. Even when it’s not their store. Even when it is a crime for them to discriminate.

Human beings really like to shit on other human beings if they can decide that they’re not part of the tribe. Even in America. Even in what is supposed to be a plurality. They just look for reasons.

So yeah, ethically you should be able to do what you want, and as a result, get shunned by the community. However sometimes communities get so tightly homogenous that anyone who differentiates in the slightest is run out of town. And our anti-discrimination laws are to prevent that sort of thing.

Gordon says:

Re: Question

The reason I ask this is that Ashers Bakery in Nothern Ireland, where same-sex marriage is not currently legal, declined an order for a cake with “support gay marriage” and the Sesame Street characters Bert and Ernie.

They are currently subject to legal action, on the grounds that declining said order amounts to discrimination.

To be clear, they do not operate a policy of refusing service to LGBT people, and will happily fulfil most orders. They do however decline orders with content they find unconscionable, such as nudity and profanity.

No-one ever took them to court before.

As an apparent response, some politicians in Northern Ireland are now pushing for a ‘conscience clause’. Not quite the same as over in the States, but I thought it timeous and somewhat relevant all the same.

Uriel-238 (profile) says:

Re: Re: Conscience clauses

So far, we’ve yet to see an adverse effect on society that comes from the integration of gays into the mainstream. We’ve found that their relationships are just as healthy as heterosexual ones, that gay couples can raise kids just as well as straight couples can (and definitely better than single parents can). The only problems that come are the same kinds that emerge during the transition phase of any effort to integrated a marginalized minority.

From the outside of the faith, biblically based efforts to keep gays marginalized is very closely comparable to the use of Mormon doctrine to marginalize dark-skinned people, or the use of Revivalist Randian Objectivism to marginalize the impoverished, or the use of rassenhygiene to justify institutionalized genocide.

From outside these faiths, it looks like the anti-gay clobber passages are specifically being cherry picked as justification to privilege one group over another. This contrasts harshly to the amount of attention that is paid to the beatifications which, if one is informed by the internet and media, aren’t even acknowledged as part of contemporary Christian doctrine, except maybe at Christmas and funerals.

Every single time that some clerk refuses a gay couple, every single time a service-person refuses to serve based on an issue of faith, any time a pharmacist refuses to fulfill a contraceptive prescription and then destroys the writ and is allowed to do so for religious reasons, that is going to reflect not just religions that allegedly justify them, but all Abrahamic faiths, and all religion in general.

BW (profile) says:

Re: Question

Because,unless they are willing to run a business that is unlicensed, uninsured, and does not accept public help, (i.e police protection, fire fighter’s protection, use of the public’s streets and sidewalks, etc.) and in all other ways refuses, eschews, and relinquishes all public assistance, then they are beholden to the public – ALL the public, not just the parts of the public they like.

If they refuse all public help, then they could claim with a straight face that they can do whatever they want. They’d still be morally wrong, but they’d be able to make an ethical argument. BUT once they benefit from the public’s money in any way, they are running a business, not solely to make money for themselves (although that may be THEIR only reason) but also (because they are licensed at public expense, inspected using public funds, insured by companies that are insured, underwritten, and monitored at public expense, etc. by the public, use public roads, have the right to call the public’s police department, etc.) to provide a public good.

dave blevins (profile) says:

Business's Rights

When we figure out how to jail a business (of any size) not just its workers or execs, then they might, just might, have some rights, not all, that individuals have.

For example, how do you punish a business when you find illegal drugs on its premises or it breaks some other law? Individuals are incarcerated, and property confiscated.

Laura Quilter (profile) says:

(A) No. (B) It already did.

First of all, in answer to your question: “Would It Have Been Better To Let The Indiana Religious Freedom Law Stand And Let The Internet And Free Market Work?” No.

A state is a large sovereign institution that affects the lives and liberties of all denizens. It has duties other than responding to market forces, namely, protecting civil liberties. Even if we were to assume that market forces would ultimately arc towards protecting civil liberties, why would those market forces perfectly influence the state’s actions? The “market” (whatever you imagine that to be — the people? the rich people?) so imperfectly influences governments that it’s more accurate to describe this as a form of market failure.

Second, although I don’t agree that we (citizens of a sovereign) ought to “let the market work” in response to civil liberties problems — isn’t changing the law in response to immediate consumer pressure, um, an example of “the market” working?

Anonymous Coward says:

If religions weren't descriminatory, they wouldn't be religions

so it is unrealistic to expect them to move on this issue.

However, SCOTUS says money is speech, and the state cannot endorse restrictions of civil rights. A tax free status for capital acquired from bigoted operations would be such an endorsement.

As such any business or person paying a tithe from revenues gained from a such a business, cannot have that tithe received by the church as a tax free contribution under section 501c of the federal code.

In other words, those businesses operating in a bigoted way, or the churches they contribute to would be committing tax fraud if they did not declare the contributions as taxable revenue.

Have a nice day.

Uriel-238 (profile) says:

Re: Discriminatory churches cannot be nonprofit...

…except during the 2008 and 2012 elections it was clarified by the IRS that they weren’t going to be enforcing that restriction on tax-exempt churches, and let them endorse political positions, which has been for the 20th century a non-profit no-no.

Furthermore, I should mention, there are 4.3 more buttloads of hoops that a non-Church non-profit has to go through to get and sustain 501c nonprofit status. Also churches that are insufficiently orthodox, e.g. Non-Abrahamic faiths get their own buttload-plus of hoops. So, wall-of-separation, my ass.

I suspect this is why parochial schools can fire teachers on the grounds that their contraception habit was discovered or that they didn’t follow 100% of the tighty-whitey offsite regulations to which they can require faculty adherence based on the institution’s right to religious expression.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...