Don’t Buy the Bull — Indiana’s RFRA is a License to Discriminate

Indiana Governor Mike PenceThe owners of Memories Pizza in Walkerton, Indiana said that, as a Christian-owned establishment, they would not supply pizza to a gay wedding reception. They would, however, serve a gay couple come in for a pizza. If you’re running a business, it’s usually not a good idea to publicly weigh in on hot topics; and they took heat for doing it! Personally, I think that’s a fair position for them to hold. There is, after all, a difference between discriminating against someone for who he or she is (e.g. not serving a customer because he is gay) and not supporting an event or action which you do not condone (e.g. providing pizza to a same-sex wedding reception). The owners, here, said they will do the latter; and there is a very clear argument that they hold that position due to their religious beliefs.

In Christian — particularly, Catholic — moral theology, a person sins when he knowingly and with volition provides material support for a sinful act. For example, if I were the driver of a get-away car knowingly transporting someone who robbed a bank to the airport so he can get out before getting caught, I am committing a sin because I am knowingly and with volition providing material support to the act of robbing a bank. My intention, in that case, is to help the bank robber escape being caught and getting away with his ill-got money. If, on the other hand, I was a cab driver and that bank robber hops in the back of my cab, asking me to drive him to that same airport without informing me he had just robbed a bank, I will be providing him material support; but I will not be doing so knowingly and with volition. I will not be committing a sin because my intent will merely be to drive him to the airport and earn my fare.

That same reasoning, of course, is applied to a same-sex wedding. Essential to the very nature of a wedding is that a couple enter into a union among approving witnesses. Witnesses, then, provide material support to the wedding in the act of witnessing. If a witness believes a same-sex union is illicit — and knowingly and with volition provide that material support to the union — then it could be said that the witness is committing a sinful act. The owners of Memories Pizza may believe that, by providing pizza to a same-sex wedding reception, they would be taking on the role of approving witnesses; or, at least, just approving. In that case, they would be right in not supplying the pizzas.

Now it could also be argued that the owners of Memories Pizza will not be acting as witnesses at all and that their intent will simply be to supply pizzas and make money; and that the union will take place with or without the pizzas anyway. In other words, they will be lending support to a party, providing no substantial material support at all to the union itself. That is besides the point. The question, where the State is involved, is whether the owners of Memories Pizza personally believe that, by supplying pizzas to the reception involves material support to what they believe is an illicit union. I believe it is fair that the State cannot compel them to do so.

But the distinction between a person’s desire not to provide material support to what he or she believes is an illicit act (entering a same-sex union) and not approving of who someone is (being gay) is not explicit in Indiana’s new Religious Freedom Restoration Act; and therein lies the problem!

While the owners of Memories Pizza implied that distinction themselves, it is not remotely believable that everyone in Indiana will make the same distinction. There are plenty of Hoosiers who believe that living out their own Christian faith (United Pentecostal Church, anyone?) requires them to proselytize and impose their own beliefs and morality on others whose beliefs and morality differ from their own. They will welcome the license to bar lgbt people from their respective establishments, citing their heartfelt religious belief that they’re required to communicate their opprobrium of who the lgbt person is. And the way this law was written implies they can.

Neither being gay nor even engaging in same-sex sexual activity essentially require a public witness, however; so serving pizza to a gay person does not lend material support to anything. The business’ owner, in this case, may believe he or she is acting from sincere religious conviction requirement to communicate; but it’s a conviction that imposes on directly on someone else, depriving him of her of his or her rights. The lgbt person, in this case, would be the injured party. After all, as the old maxim goes: “Your right to swing your arms ends just where the other man’s nose begins” (Oliver Wendell Holmes, Sr.).

Either the legal minds who drafted this law were so intellectually deficient they didn’t realize that distinction does not exist in this law or Governor Mike Pence is lying when he says the law was not intended to give license to discriminate. The latter possibility has the greater weight, given that neither the Governor nor the Republican-controlled legislature will support legislation explicitly protecting lgbt Hoosiers from discrimination. In either case, discrimination is actually what this law licenses and, as such, needs to be repealed.

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