This past week saw lots of visibility for Indiana, the Hoosier State. Not only was Indianapolis the host site for the NCAA Basketball Tournament’s “Final Four,” but it was also the center of the most recent game in the continuing legislative tournament between two excellent teams: Tradition, and Progress. This week’s game involved the saga of Indiana’s ‘Religious Freedom Restoration Act’ (RFRA).
For those who may not have been following the state of political play, within the course of one week the Indiana legislature passed a version of a widespread RFRA – one of 20 states to do so – that recognized a business owner’s right to free exercise of religion; and then they passed a modification asserting that the law does not allow a business to discriminate against lesbian / gay / bisexual / transgender (LGBT) customers. Arkansas considered a like law this past week as well, with its legislature similarly modifying their proposed law to prevent LGBT discrimination. One of the other states with an RFRA law is South Carolina.
The creative tension between individual rights of business owners and that of potential customers is one that all South Carolinians who remember the 1960’s know well. Many businesses back then, particularly restaurants and the “hospitality business” (including hotels and motels), had prominent signs stating that “We reserve the right to refuse service to anyone.” Tradition favored property rights; my business (the argument went) is private property, and I can allow or not allow access to my private property to whomever I see fit. Progress favored civic inclusion. One of the consequences of being licensed to do business is the legal obligation not to discriminate arbitrarily based on the owner’s prejudices – and in the 1960’s, those were mostly racial prejudices.
In 2015 the argument is framed somewhat differently. Now Tradition avers that if the discrimination is not arbitrary but is based on religious principles – being openly gay is an affront to my religion and I won’t condone it in any way – then I do have the right to refuse service to such people. And Progress argues the same way as it did in the 1960’s: what is or is not arbitrary should not be left to the business owner to decide – after all, thankfully there is a vast array of religious beliefs about all aspects of life – but should be moderated by society, and society has a vested interest in broadening prohibitions against discrimination.
The timing of Indiana’s RFRA law was on the heels of an unpopular judicial expansion of marriage rights, and this tie-in helped to explain why it was passed now – and why there was an immediate “push back” by so many not only on the political left but also from big businesses including Apple and Walmart. Discrimination, the businesses argued, is bad for business – including LGBT discrimination. South Carolina’s RFRA law, in contrast, was enacted in 1999, well before the issue of LGBT discrimination became mainstream. But it is mainstream now.
Tradition is a good thing. Religious freedom is enshrined in the Constitution, as well it should be. But as is the case for many rights, my right to exercise my religion expands up to the point where it infringes on your rights as a citizen, and no further. The question, as always, is where is that point. Progress is a good thing, too, and the location of that point moves with the passage of time. In legislation as in all aspects of our public life, we need to ask ourselves, “Where are we now? Where do we want to be in the future?” Those are not easy questions, but they are necessary ones – including a careful look at our own 16-year-old South Carolina Religious Freedom law. Once again, it is time for South Carolina to review where we stand.