Indiania: Why Freedom of Association Is So VERY Important.

GLAAD? Human Rights Campaign? George Takei? That debacle in Indiana is exactly how you drive moderates away from you. At the very least, it’s certainly not how you convince them that you’re fighting the good fight for truth, justice, tolerance, and equality.

(Ok, maybe not George Takei. The man is legitimately entertaining, regardless of your politics. But I digress.)

As the dust settles from the roaring, raging witch hunt in Indiana, people everywhere are feeling…. kind of uncomfortable.
The quietly determined push/pull struggle between pro and anti gay marriage activists took an awkward bent when a fairly innocuous and commonplace law (more on that later) was passed by the state of Indiana, and the community which has historically been the most fervent advocate of “tolerance” jumped right down the collective throat of the Hoosier state, screaming all the way.

Politicians, celebrities, and business moguls had to take numbers to see who could loudly denounce Indiana first. Civic leaders were scolded and ridiculed nationwide, citizens were accused of universal bigotry, and any Indiana-based industry was boycotted almost immediately, strictly for crimes of geography.
Oh, and let’s not forget how an ambush reporter and an awkwardly-worded response catapulted an unprecedented level of speculation onto the viability of having a wedding catered by a pizza parlor. Which, apparently, IS a thing. Who knew?

BUT, we’re getting ahead of ourselves.

What IS “Freedom of Association?”

Freedom of Association is pretty much what it sounds like: The freedom to associate with whomever you choose.

Functionally, it means that no one can or should force you to be part of something you disagree with. (Even during the days of the Draft, allowances were made for Conscientious Objectors; people who wanted no part in violence.) It is the knowledge that you are free to express and act on your beliefs with legal and social safety.

Why is this important? Simply put, because Freedom of Association is an intrinsic element of Free Expression. You know, the First Amendment? That right which lets you express yourself without being victimized by the government or your neighbors? That thing?

Pretty important.

And while it may not be EXPLICITLY stated as a guaranteed right in our Constitution or our Amendments, like it is in South Africa’s, political philosophers across the world agree that it’s an implicit element of the Freedom of Speech; an indivisible component.
Oh, and so does the Supreme Court, which has ruled that the Freedom of Association, while arguably not explicit, is unarguably implicit in our Bill of Rights.

Now, the first thing that both thoughtful liberals and conservatives will ask is:

“But haven’t we already placed limits on the Freedom of Association with the Civil Rights Movement?”

Short answer? Sort of.

The Civil Rights Movement of the 1950s and 60s limited the Freedom of Association… to a degree.
While purist libertarians (mournfully) and radical liberals (gleefully) agree that those few steps somehow give carte blanche permission to obliterate the Freedom of Association altogether, it is important to remember that those limits were established for specific solutions to specific problems usually with a government interest… or affirming rights that were already stated as belonging to all people. Half of those rulings and laws were essentially an asterisk next to the preexisting rights and protections saying “When we said all people, we MEANT all people.”

In other words, it does not justify a call for private restriction on people who refuse to, NOT deny a service to a person, but rather, participate in an activity they do not support for religious reasons, a freedom that Civil Rights was not attempting to infringe on. Just because we started chipping away at a right, for reasons saintly or sinful, doesn’t mean we should keep doing it, and that first chip is not a blank check to be grudgingly or gleefully handed to the government to rampantly dictate how we conduct our private lives and businesses.

In short: Stop comparing the campaign for “Marriage Equality” to the Civil Rights Movement, because they are two very different things, with very different legal ramifications, and very different sociological environments.
In that article, liberal/progressive libertarian writer Julian Sanchez argues that not only are they two different things, but that using the Civil Rights movement to justify abolishing Freedom of Association is unconstitutional at best, and exploitative at worst.

So what’s an RFRA?

The original RFRA was a bill put forward by Chuck Schumer (D-NY), passed almost unanimously by Republicans and Democrats alike, and signed into law by President Bill Clinton in 1993. It prohibits the government from “substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability” except in cases where a “compelling governmental interest” can be demonstrated. It was ruled to be unconstitutional to apply it at a state level, and so states are free to adopt or ignore their own RFRA’s as they see fit. Essentially, it’s a reiteration of the First Amendment

And it’s a REALLY good thing, not just for “White, Christian, Anglo-Saxons,” but for EVERYONE.

The law was enacted to specifically help protect not just mainstream Christianity, but EVERY religion, and since it’s enactment, it has helped people from virtually every faith and creed: Muslim firefighters wishing to grow harmless, but non-regulation beards, Sikh federal employees being able to keep their ceremonial knife-pendants with them in government buildings, and a variety of protections for different Native American religious practices.“Thanks, RFRA.”

It’s proven to be such a good idea, that over 20 different states have enacted their own, state-level versions of the Federal RFRA, and thirteen more have similar proposals in the works.For over the past two decades, Federal and state RFRA’s have been supported and used by both the ADF and ACLU (who HATE each other), and lauded by politicians on both sides of the aisle with relatively little complaint.

So… why do people hate Indiana’s RFRA?

They (people like Chuck Schumer, who insists that his federal version was “totally different”) will tell you it’s because that, unlike other versions, Indiana’s RFRA is the ONLY one that applies to private suits and business, and since the state purportedly does not have specific anti-sexuality discrimination laws on the books, it allows for the wholesale discrimination of homosexual patrons in private business.

The problem is, none of that is true. First of all, both other state RFRA’s AND the Federal RFRA have been applied to private suits and cases, even a circuit court in California ruled that the federal RFRA could apply to private or business cases.
Oh yeah, and, of course, the Supreme Court’s decision in the Hobby Lobby case last year said pretty much the same thing.

As for wholesale discrimination… That doesn’t really work out either. While Indiana might not have specific, anti-discrimination laws based on sexuality, the language of their law would still allow businesses, regardless of religion, to be prosecuted for it. The RFRA is not an automatic “get out of jail free, because Jesus” card, and claiming it’s protection is no guarantee of winning your case.  It’s just an option the defense can try to use and a layer of protection from frivolous infringement on religious practice.

However, none of that information could stop the unmitigated witch hunt in Indiana to right all those nonexistent wrongs.“She disagrees with our very specific set of political philosophies! BURN THE WITCH!”

I call it a witch hunt because I honestly cannot think of a better comparison to make regarding the massive storm of relentless emotion and McCarthy-style tactics kick-started for so little reason or proven cause.

And it worked.

The leaders of Indiana have lined up like contrite schoolboys, promising to change things so people will stop hating them and that hateful, bigoted pizzeria you’ve probably heard so much about? The massive media scandal that snowballed from an off-hand interview has forced a family restaurant to close their business due to death threats and they have no idea when they’ll be able to reopen.

What’s the problem with what happened in Indiana?

The problems are numerous, but it ultimately boils down to three:
The misinformation, the shameless bullying, and the self-destructive hypocrisy.

You have a law that was never about discrimination or cake suddenly framed as being exclusively about both and nothing else. Because Hollywood said it was true, people everywhere bought it, even though the Indiana RFRA was not, is not, and was never going to be any kind of assault on the LGBT community. You have a pizza place touted as the smoking gun of Indiana discrimination, when, in fact, they specifically said they would happily serve anyone of any persuasion. However, responding that, if asked, they probably would not cater a same-sex wedding, has instead creating a media caricature of “prejudice pizza people” running to the media to proclaim their bigotry. you feel the hate?

You have the outrageous response to their fairly innocuous comment that didn’t put the brakes on until someone threatened to firebomb their place of business. Twitter and Facebook exploded with people viciously harassing and verbally abusing every single Indiana-bred scapegoat that was presented to them, shamelessly using terrible language to browbeat people who disagreed into quiet silence.

You have the movement that’s suddenly weirdly OK with these kind of mob-rule tactics to intimidate people into hiding their true natures and beliefs. (Familiar?) Celebrities and CEOs were stumbling over themselves to see who can be the first to bravely boycott the fiscal giant of Indiana, while conveniently ignoring the rest of the 20+ states with the same laws…

… and still happily doing business with gay unfriendly nations like the People’s Republic of China. Apple CEO Tim Cook even announced his pious boycott of Indiana while simultaneously opening Apple stores in the VIOLENTLY homophobic (but wealthy) nation of Saudi Arabia.

What the Indiana protest boils down to is a movement of people who are quick to pounce on an easy, convenient target that required little risk to berate, and then mercilessly browbeat them for daring to imply that views counter to their own deserve the same rights and protections.

The live-and-let-live “If you don’t like gay marriage, then don’t get gay married” slogan has been amended with a much more menacing “…but we’ll be damned if we let you miss the wedding.”

Indiana’s Religious Freedom Restoration Act and the resulting vitriolic backlash has implications that go far beyond “marriage equality,” and even the most politically un-savvy people can sense it.

Infamous bloggers like Matt Walsh would be quick to say that this is just the unmasking of the true, malignant liberal intent, but most of the people supporting same-sex marriage have the best intentions, and several of my liberal and moderate friends are a little disturbed by what happened in Indiana.

While they really do want marriage equality, it wasn’t supposed to happen this way; trampling all over people who dare to think differently. The easy transition that the LGBT/Marriage Equality movement makes from oppressor to oppressed is not seen as a good thing, especially among moderates, nominal supporters, and especially libertarians, who were all for marriage equality, but not at the expense of basic rights.

The Irony

Some people are uncomfortably OK with hardline, authoritarian tactics as long as it supports their particular philosophy, but people who are not as completely committed to a cause are frankly quite frightened by it, and the behavior displayed by the same-sex marriage lobby in Indiana is doing more to make people question their methods than support them.

For all the shade that thrown towards bloggers like the aforementioned Matt Walsh, behavior like this is how you feed them; create more of them. When you confirm all of the fears that those people have been spreading, you do their work for them.


But the really ironic part is watching same-sex marriage advocates use the bullying tactics to skirt the rule of law and trample on the same rights of free association and expression that they once used as their primary argument. Why does this frighten liberals as well as conservatives? Because trying to destroy someone or something based on their personal views goes doesn’t sit well with some old-school progressives. They had to grow up on the receiving end of it, and, deep down, a lot of them still don’t think total turn-about is fair play.

More importantly, is the implication that comes from the potential of destroying the freedom of association. It would hurt everyone. You’ve heard the arguments:

“You wouldn’t forced a Jewish printer to make anti-semitic flyers.”
“You wouldn’t force Muslim butchers to serve pork.”
You wouldn’t force a gay hair-dresser to style hair for someone who opposed gay marriage.”

While they might seem overused to you, they are perfectly valid, and Stephen Crowder, in his admittedly dramatic video about asking Muslim bakeries to make gay wedding cakes, raises an important question: “What will liberals do when two things they support, like LGBT rights and multicultural preservation, clash?”

But that’s the beauty of supporting the Freedom of Association: It means they will never have to answer that question.

The expressive rights of both parties will be protected, and they won’t have to conform to a mob-rule or government-mandated standard that violates personal values.
Logically, Freedom of Association is just as much of a boon to liberals as it is conservatives.

In Closing: Freedom of Association is vital for people on both sides of the aisle.

The point, at the end of the day, is not about cake, or pizza, or even same-sex marriage. The point is the ABILITY to even DISCUSS those things without worrying about all of society and government descending upon us in a fiery rage. When you have to quickly murmur your basic support for a cause before you’re even allowed to discuss it, there’s a problem.

THAT GOES FOR CONSERVATIVES TOO. We need to WELCOME discussion and debate, not destroy it.

Peaceful non-participation for reasons moral, political, and spiritual, is a valued practice of both conservatives and liberals. “Freedom of Association” is our liberty to do that, whether we’re for a social cause or opposed to it, and it protects EVERYONE. When either side tries to get rid of it, it opens the door for bad things to happen.

I don’t know what frightens me more: The idea that people honestly don’t see how incidents like this one erode the freedoms of association, free speech, and religious expression… or the idea that people do, and that they’re OK with it.“For social justice!”

Don’t be so quick to get rid of the Freedom of Association, because you may need it someday… and the odds are you’re using it already.

Louis Petolicchio lives and writes in Central Pennsylvania. He has only been to Indiana once, and his time there was remarkably uneventful. Follow him on Twitter!


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