Libertarians and Religious Freedom

Christian conservatives aren’t the only defenders of religious free-association laws, according to the Wall Street Journal’s William McGurn, in his column Indiana’s Libertarian Moment (it’s behind a firewall so google “Indiana’s Libertarian Moment” McGurn notes that:

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.

In addition:

Mr. Epstein is not the only libertarian to speak out. … 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.”

McGurn concludes:

For…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.

Many LGBT people have libertarian inclinations, but the activists who dominate LGBT political lobbies tend to identify as part of the broad progressive-left movement. And activist progressives dominate LGBT media and comment boards, where they can act as enforcers of ideological conformism.

More. On libertarians and the electorate, David Boaz takes on Paul Krugman.

30 Comments for “Libertarians and Religious Freedom”

  1. posted by Doug on

    Many Libertarians are against ALL public accommodation laws. Do you really want to go there, Stephen?

    • posted by Houndentenor on

      Haven’t you been paying attention? Of course he does and so do a lot of libertarian-conservatives. They never liked the Civil Rights Act. Rand Paul said exactly that not all that long ago, and I hear it (not directly but clearly enough) from conservatives regularly.

    • posted by Jorge on

      Okay, but since when does anyone actually listen to what libertarians think?

  2. posted by Wilberforce on

    The mental and verbal contortions regularly practiced by Libertarians are a bore.
    Rand Paul’s launch speech is an example, in which he talked about taking the government back from special interests, as a candidate of the Republican Party, the main clearing house for special interests.
    It is laughable.

    • posted by Houndentenor on

      As recently as this week Paul is continuing to lie about receiving two degrees from Baylor University when in fact he has none. Perhaps if he’d spent more time studying and less time doing sacrilegious NoZe Brothers stunts he’d have finished at least one of those degrees.

  3. posted by Jim Michaud on

    Oh really Stephen! This post is pure Lori bait. I wouldn’t worry about SSM opponents’ livelihoods. They’re raking it in with every manufactroversy. I’m sure they’re also drumming up some people to pose as “former supporters of SSM until the those evil gaystapo just ruined the sweet little Christians’ lives.”

    • posted by Lori Heine on

      “This post is pure Lori bait.”

      Or it would be, if Lori believed that Rand Paul–king of all panderers to the social conservative theocracy–was much of a libertarian. He is a libertarian-ish social conservative, which is a very weird bird indeed. Such creatures were virtually unheard-of until the advent of the Tea Party, but they’ve since become quite common.

      Try actually learning something about libertarianism–including the notion (foreign to you, I’m sure) that we disagree with each other about everything beyond the necessity for non-aggression between citizens. Indeed, if you poll ten libertarians about most subjects, including gay marriage or public accommodations, you’d get ten different replies.

      I’m not sure Rand Paul believes in non-aggression between citizens. There’s no telling how he thinks he can please social conservatives if such is the case.

      The commentary threads on this site give me a wonderful sense of deja vu. It’s just like being back in the seventh grade. One of the cool kids says something absolutely mindless, and everybody falls in line to agree.

      To understand the libertarian perspective, you’d need to be enough of an adult to form an independent opinion. Oh, wait…

      • posted by Houndentenor on

        By your own admission, every libertarian perspective is a different one. So what is there to understand in the aggregate? Given your own admission, what is the point to referring to libertarians collectively as if they share anything in common other than a label which tells me almost nothing about anything.

      • posted by Ricport on

        Lori, didn’t you know that this really isn’t the INDEPENDENT Gay Forum, but rather yet another opportunity to sing hallelujah to the DNC? Although for some of the repeat posters here, I suspect they use coming on this site to argue the same way most other gay men go to XTube.

        Not playing step and fetchit for the DNC masters would require independent (yep, there’s that word again) thought… Something which seems to elude many on here.

        You are basically right – Rand Paul is about as much of a libertarian as Michelle Bachmann is a member of the HRC. It’s only dimwit Dems and their lazy media lackeys who continue to perpetuate this falsehood, because why would you want to actually spend effort to do even the most cursory research?

        And I find your “Freedom of Conscience Law” idea intriguing, although I think the devil would obviously be in the details. But as long as we continue to be boxed in by the two failed political parties who cling to their outdated orthodoxy with the mindless tenacity of an old junkyard dog, we’re all doomed to more of the same dreck spewing forth from DC, and, sadly, on this site.

        • posted by Aubrey Haltom on

          I think Rand Paul has had a hand in the perception of his being a libertarian. He’s tried to use that perception whenever he speaks at a college, whenever he wants to distinguish himself from the other Republicans, etc.

          And perhaps the relationship with his father also plays into this perception.

          And if you haven’t noticed – the main blogger for this site is not a Democrat. There are comments from Dems here. Also from those who self-identify as libertarian. From some who lean/vote Republican.

          I have visited this site enough through the years to know that several of the Dems actually engage Stephen re: the topics addressed. As do the libertarian(s) and Republicans.

          You, on the other hand, seem to merely come here to be critical and/or snide.

          I can’t think of any time that you actually addressed the ideas given (the religion-neutral freedom of conscience’ idea was from Tom – an out and out Dem. I’ve never seen you argue the merits or weaknesses of his ideas. Only gripe about the Dems and “outdated orthodoxy”.)

          It would be a welcome respite to see you write about what you want to see happen. To respond to Stephen’s post – rather than merely throw mud around.

          • posted by Lori Heine on

            Aubrey, I am a Democrat.

            Sorry, I know that’s not convenient.

            I don’t check a giant scoreboard to see who holds which ideology before making any remark–either pro or con–concerning it.

            That’s another girl-clique-from-junior-high sort of practice, and doesn’t sound terribly constructive.

            And as to Houndentenor’s objection, which I anticipated in the comment to which he prefers, libertarians (real ones) are united in an opposition to the use of aggression by citizens against one another. I suppose I could further add that we believe in self-ownership, rather than in the possibility that one person might determine that he/she owns another.

            That does leave a lot of room for disagreement. It’s why both progressives and conservatives get irritated at libertarians, because they can’t get an Apostle’s Creed-like rundown of our faith on every political issue. We don’t believe that the state should control nearly everything under the sun, therefore we don’t politicize every issue under the sun. Politics are about citizens’ attempts to influence the workings of the state.

            My quarrel with Rand Paul is not that he disagrees with me about some issues, but that he cannot please the social conservative crowd without dragging the state into citizens’ private lives. Unless he’s merely dallying with them and lying to them, if he seriously hopes to keep their support, that’s what he will have to do.

            Presidents generally don’t stop running for the office until they’ve won a second term. Which means that if Rand Paul is utterly committed to the social conservative vote, he must do all he can to pander to them all the way through a first term–if he gets one.

            Ricport, it’s great to see you here. This is, indeed, a libertarian/conservative site. What a concept that there should actually be a few of us here.

            I came from the left, but I’m getting thoroughly tired of it. Dealing with people who refuse to even try to reason has a lot to do with why. The similarities between “progressives” and social conservatives is eerie. And if both must be dealt with to any degree, unmistakable.

          • posted by Kosh III on

            “the main blogger for this site is not a Democrat. There are comments from Dems here. Also from those who self-identify as libertarian. From some who lean/vote Republican.”

            And at least one Green Party member–me.

          • posted by Houndentenor on

            One of my friends commented on the collective freakout on his (not my) facebook feed over Rand Paul this week. To quote my friend: Rand Paul’s problem seems to be that he’s not libertarian enough for libertarians and too libertarian for everyone else. Said friend is nothing if not succinct.

          • posted by Houndentenor on

            Dear Lori,

            The problem is not that we don’t know what libertarians are against. That’s perfectly obvious. The problem is that we don’t know what libertarians are for, or more specifically how a libertarian society would function and most of us suspect it would not.

          • posted by Aubrey Haltom on

            I was actually trying to reply to Ricport. Who, at least in all that I’ve read of his comments, just comes here to p*ss at all those ‘left-leaning Dems’ or whatever.

            I don’t recall any comments of Ricport’s that try to actually engage the issue at hand. He seems to be angry about some things. And while anger can be an excellent motivational factor, in-and-of-itself it doesn’t get much accomplished if there’s not some objective attached.

            I only mentioned the libertarian on board IGF because you have identified yourself as libertarian. I would gather that is as much a philosophical position, not necessarily a political party one.

            But that really wasn’t my concern. Ricport’s snide attitude re: Dems on this site (a claim Ricport makes repeatedly in the few comments I’ve seen from him/her) was really what I was addressing.

            I do remember you mentioning being a Democrat in previous comments. I appreciate the arc of your politics – trying to work out what works for you from any ‘point’ on the political spectrum.

            I’d also agree with Houndentenor – it’s difficult to get a grip on ‘libertarianism’, and what that would actually mean in a governing capacity.

            I have friends who define themselves as libertarian – some favor public accommodation laws, some argue against all/any non-discrim laws, all of them supported SCOTUS on Hobby Lobby and Citizens United.

            i.e., there are a variety of definitions under the ‘libertarian’ umbrella – just in my small circle of acquaintances/friends.

            If there is a general them to those libertarians in my life – it is a mistrust of ‘government’. With a corresponding belief that somehow the ‘free market’ will work things out. As if big corporations are a better option for everyone than big government.

            Again, that’s from my limited personal experience. But I find that non-sequitur (big corps preferred to big govt) to be a common thread amongst my libertarian friends (spread out across the country, all with different voting habits, etc…).

            Sorry for any confusion.

            And, btw – it would be much more preferable, in my opinion, if Stephen (and any one else who speaks out in favor of these ‘rfra’ laws) would just admit that they’d like to see all non-discrims dissolved.

            Because if Stephen (etc. al) only wants to allow discrimination against lgbt – no matter what reason used to get to that position – then the primary impetus is not religious freedom, but bigotry against a minority community.

            It would make a much more honest discussion if we could talk about the reason for non-discrims in the first place. Pros and cons.

            Why they were implemented – historically. The value and benefit to society. vs whatever governmental compulsion some people feel these non-discrims bring to their personal lives. Etc…

            Unfortunately, I find Stephen to be in much the same camp as Gov. Pence. Dishonest about the intent of these recent rfra laws. and disingenuous re: the non-discrim laws in general.

          • posted by ricport on

            Aubrey, I unfortunately have a demanding job and fortunately have a very rich social life which prevents me from responding the instant a post is made, unlike apparently many on here.

            “I don’t recall any comments of Ricport’s that try to actually engage the issue at hand.”

            Then you obviously didn’t bother to read where I actually and respectfully (something out of the ordinary for the LibDem Hallelujah chorus on this site) disagreed with Lori on the motives behind the Memories Pizza interview, and even on this thread where I (incorrectly attributed – apologies) commented on the intriguing nature of the proposed “Freedom of Conscience Law.”

            “It would be a welcome respite to see you write about what you want to see happen.”

            Fair enough. I don’t see this as a cut-and-dried issue, which is why (per usual) neither party is capable of putting forth an innovative solution. The Reps, who are sadly in the firm grasp of the Tealibangelicals, aren’t interested in compromise – you just have those smart ones who are just hoping it’ll go away, and those who are making their position a cause celebre. OTOH, you have the Dems, many of whom have had an ax to grind with religion in general for quite a long time, and who see this as a golden opportunity. What do both have in common? A complete incomprehension and disregard for nuance.

            I think a good starting baseline is that religious views must receive top priority and protection as much as possible. I don’t want to see churches who hate gays forced to hire them. Same goes for any religious organization/enterprise. That said, I think that if the offending baker wants to use religion as the basis for discrimination, then he/she should not only have to show a clear and overwhelming impact on their personal faith; they should be required to prove that they are applying their religious beliefs uniformly – in other words, if you’re selling cakes to known adulterers, liars and thieves, then don’t expect us to believe selling to those horrible gays is going to impact said faith.

            Again, try READING what I have written. And again, as this is the INDEPENDENT Gay Forum, I would expect there to be more than the usual chorus of 5-6 LibDems, who apparently have nothing better to do than sit at their computer, waiting for Stephen to post his next missive, so that they can get that ecstatic release of both arguing and spouting the usual Dem dreck. Trust me, if the table was turned and the suspects were Reps, I’d be saying the EXACT same thing.

  4. posted by JohnInCA on

    Too many sore winners?

    So six people that actually used their state’s non-discrimination laws in the last six years is enough to go apocalyptic? I need to ask my grandfather if people were this outraged over the CRA in the 60s. How *dare* the government tell places that serve the public to serve *all* of it!

    That said, I always find it disingenuous when these people pull out the “government shouldn’t force” card but somehow fail to address the elephant in the room (that the CRA does exactly what they’re protesting). For or against, it’s just dishonest to not even mention it.

    • posted by Houndentenor on

      “Sore winners” is just Stephen’s latest adoption of an anti-gay right-wing meme.

      1) We haven’t won yet.

      2) For decades we lost almost every battle on gay rights that was put to a public vote. And at every turn there was nothing but nastiness and gloating from the winners. From the people who put us through all that to complain that we are being “sore winners” is absurd but typical of the most superstitious and ignorant demographic in our country. With each passing day I grow less sympathetic for the bigots. They don’t think I should have any rights but think I should feel sorry for them for having to take money from gay customers? Really?

      • posted by Aubrey Haltom on

        I agree, Houndentenor. We haven’t even argued before SCOTUS and people are tagging us “sore losers”.

        And in my lifetime I’ve seen my ‘tribe’ hounded and criminalized, kicked out of communities and families, written out of state constitutions, and demonized by religious congregation after religious congregation. They’ve tried to prevent us from employment and deny us legal equality in our relationships. In 29 states we still have no right to employment, housing or service.

        But somehow – because a few couples wanted a few small businesses to play by the same rules that everyone else has to follow in their states – we are nazi thugs who are trying to demolish Christianity. Give me a f**king break.

        Those who favor the recent rfra laws are lionized by Stephen for ‘speaking their mind’. And somehow these anti-equality people should be allowed to voice their opinions – without any conflicting opinions from those who disagree.

        ‘Everyone should be allowed to voice their opinion, we should tolerate those who disagree with us’, Stephen would say.

        But that same tolerance doesn’t work when the voices are answering the pro-discrimination chorus. Those who argue for equality are supposed to remain silent in response to the anti-equality maelstrom.

        I’m not sure how Stephen gets to such a bizarre dichotomy of thought (in my mind) – but he keeps repeating it ad nauseum here on IGF…

        • posted by Houndentenor on

          The Evangelicals pushing for the right to be bigots are the same ones who advocate parents kicking their lbgt teenage kids out of the house to fend for themselves on the streets. They care about freedom? No, they just want to be bigots and be applauded for it. People are finally seeing through their tired lies and meaningless talking points.

  5. posted by Lori Heine on

    Were Rand Paul an actual libertarian, he would have a problem with the dishonest way most “religious liberty” legislation has been crafted. They use the word “liberty,” so liars and morons love it. That doesn’t mean that they pass the smell-test.

    Some objections raised in comments on this blog do merit serious consideration. What, for example, would it take to make a religious freedom law into a freedom-of-conscience law that was religion-neutral?

    Anyone actually paying attention to what libertarians are saying about this issue would realize that many are very critical of the notion that only fundamentalist Christians and conservative Catholics deserve religious freedom.

  6. posted by Mike in Houston on

    I know I’ve asked this question before, but having not yet gotten an answer… where does the carve out end?

    The newly proposed RFRA law in Louisiana is quite specific in allowing businesses to refuse service for same-sex weddings and to not provide benefits to legally married same-sex couples if it goes against the owners’ beliefs.

    But where is the bright line?

    Okay, Stephen — I get that you and others argue that baking a cake that is served at a same-sex wedding is somehow a sin and violation of someone’s rights “not to participate same-sex wedding”.

    But what about other forms of recognition for that same-sex couple — is it only events surrounding the initial marriage that they get the RFRA treatment? What about an anniversary party? Or a family photo? A cake for the birth or adoption of a same-sex couple’s child?

    It would seem to me that each of those examples would also fall into the “participating in sin” because of the tacit recognition of a couple’s status as married.

    And why is it a burden for religious businesses or institutions to publicly proclaim with a sign on the outside?

    • posted by Houndentenor on

      The purpose of the federal law was to allow native Americans to continue using peyote in their ceremonies. It was a bad law not because it allowed for freedom for a minority religion but because if peyote is so dangerous that the rest of us need the federal government keeping us from getting it, then it’s also bad for native Americans. it was a law to justify an ongoing and ill-conceived “war on drugs”. The latest round of state laws are equally ill advised. A law designed for what appears to be the sole purpose of allowing religious people to discriminate against a single minority group? What precedent is there for that? Imagine a law that allowed African Americans to discriminate against Latinos? Does that sound nuts? So do these news state laws to anyone thinking clearly. At least the people who would get rid of public accommodation nondiscrimination laws are consistent, although I think most people can quickly realize that they’d not like a return to the country we were before those laws existed.

  7. posted by Lori Heine on

    Actually, a very common libertarian belief is that civil rights legislation was necessary in the event of the Civil Rights Movement, because government was being used to oppress African-Americans in the first place. Anyone who makes any honest attempt to understand libertarians’ point of view on the matter would have checked into this and found it out.

    Are there libertarians who disagree, and blindly oppose all civil rights legislation no matter what? Of course there are. But it is a bald falsehood to claim that ALL libertarians are of that opinion.

    • posted by JohnInCA on

      I’m not going to try and argue what “all” libertarians do or don’t think. But frankly… that line about the CRA would be a lot more convincing if the CRA was ever limited to race.

      • posted by Lori Heine on

        While we’re on the subject of “lines,” again we get the BS on stilts that there is NO difference between most of the country in 2015 and Selma, Alabama in 1955. Absolutely amazing.

        The government is not spraying us with firehoses, turning vicious dogs on us or barring us from voting. Are there people who’d like it to? Of course there are. But they can’t. Which is why they’re reduced to throwing temper tantrums about wedding cakes and pizzerias.

        More statist left shtick. Nothing has changed. OPPRESSION is everywhere! To the battlements! Oh, and vote for us. And send money…

        If nothing has changed, and these people have been at their social justice crusade for fifty years, then they are totally incompetent. If, on the other hand, they ever deserved any public support in the first place, they need to take bows when they deserve them, and get the hell off the stage when they’re not needed.

        Now they’re only gunking up the works.

        • posted by JohnInCA on

          … that’s an impressive amount of extrapolation, Lori.

          I honestly have no idea how you jumped from my statement to any of what you responded to.

  8. posted by Tom Scharbach on

    And I find your “Freedom of Conscience Law” idea intriguing, although I think the devil would obviously be in the details.

    The devil is always in the details, Ricport.

    To put Lori’s comment in context, this is what I proposed: “The right of an individual to act or refuse to act in accordance with the his or her conscience, religious or non-religious in nature, shall not be substantially burdened by the government unless the government has a compelling interest in curtailing the specific action or refusal to act, and the infringement is the least-restrictive alternative to the state’s action.”

    I suppose that there are many ways to put this (as you say, the devil is in the details), but the gist of it is embodied in this statement: “No person must be forced to act contrary to his conscience, nor prevented from acting according to his conscience, unless the government has a clear and compelling interest, founded in the common good, for doing so.”

    The proposal codifies the Sherbert test, and extends the test (now limited to individual religious conscience alone) to all individual conscience, religious in origin/formation or not.

    That is all that it does. Except for the extension of the Sherber test to include all exercise of personal conscience, the Sherbert triad (the “substantial burden” test, the “compelling interest” test, and the “least-restrictive alternative” test) remains in full force and effect.

    The proposal applies to all laws, as does the Sherbert test. I think that scope is mandated if we are serious about protecting personal conscience as opposed to picking sides in the political “hot-spots” of the day.

    Note that the test meets a three-pronged test:

    (1) It is religion-neutral, applying to all instances of personal conscience, religious in origin/formation or not;
    (2) It is issue-neutral, applying to all laws and government actions; and
    (3) It is class-neutral, applying to all citizens.

    That three-pronged test, it seems to me, is critical to protecting individual conscience. We should not, in my view, pick and choose between religious and non-religious conscience, protecting the one but not the other, or pick and choose on issues, protecting freedom of conscience on some issues but not others, or pick and choose among citizens, protecting some but not others. I believe that “equal means equal, no more, no less”, period.

    But as long as we continue to be boxed in by the two failed political parties who cling to their outdated orthodoxy with the mindless tenacity of an old junkyard dog, we’re all doomed to more of the same dreck ….

    A bill was introduced into the Wisconsin Assembly last session to amend Wisconsin’s constitution along the lines of the proposal. It was quickly beaten to death by participants on all sides, and never made it out of committee.

    I suspect that is likely to be the fate of any proposal to meaningfully protect individual conscience from government intrusion. Nonetheless, I think that the effort should be made to invoke a meaningful discussion of individual conscience and its relationship to laws of general application, and the sooner the better.

    I do not, making that statement, imply that the current spate of “religious freedom” laws, which are sham proposals born of political pandering for the most part, advance the discussion. Instead, the sham proposals hijack the idea of individual conscience and set us back.

    • posted by Mike in Houston on

      It would seem that most public accommodation laws — even those that include sexual orientation and gender identity — comply with the three-pronged test.

      Unfortunately, the crowd that is pushing these sham RFRA bills is also the same one that is arguing that the mere filling out a form that exempts them from the ACA reproductive requirements is entirely too much of a burden… because, Jesus.

      I’m not sure how we can get to the rational discussion portion of the program…

      • posted by Lori Heine on

        The social cons are getting tiresome because they aren’t really concerned with religious freedom per se. It’s hard for them to have freedom of conscience because they don’t have a conscience.

        This is all a shallow, cynical political game on their part. Yes, freedom of conscience is important. As a matter of fact, it’s too important to be jacked around with like they’re doing.

        On the political Right, only some libertarians (some, by no means all) are able to see through the façade. IGF is cranking out, at this point, nothing but standard propaganda for the soc cons.

        Every time they’re given some leeway, they use it to discriminate against a particular group–us. At what point it ever becomes obvious to anyone else on the Right that this is what is happening, I don’t know. The pizzeria fraud should have alerted them, because it was so phony and they had to be so willfully delusional to fall for it. If that doesn’t do the trick, I don’t know what will.

        Being a libertarian doesn’t mean selective liberty for some, but not for all. These people slap the word “liberty” on what they want to do, and people who should know better swallow it hook, line and sinker.

        I disagree with public accommodations laws that permit no leeway for small business or legitimate freedom of conscience (not targeted at only one group). But this is getting ridiculous.

        The best thing to do is call the soc con’s bluff. I think Tom S is on the right track about how that can be done. They are motivated by animus against gays–and apparently very little else. I’m tired of watching them hide behind Jesus.

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