What just happened in Indiana?
If you haven’t heard what happened in Indiana this past week, here is a brief recap: a “religious freedom” bill that allows businesses to refuse service to customers for “religious” reasons was signed into law by Indiana governor Mike Pence. The short version: businesses will soon be free to refuse to serve gay customers (or customers suspected of being gay) if they feel that doing so somehow stands against their religious beliefs. There’s more to it than that, but let’s start there since the boycott we are going to talk about is centered around this one issue.
Theoretically, the law could also allow Christians to refuse to serve Jews, (in case that sounds familiar, you aren’t wrong), Jews to serve Muslims, and so on. Interracial couples, Muslims, atheists, and single mothers and others could find themselves turned away by racist, xenophobic or otherwise bigoted business owners, and without much recourse. How? Simple: While “discrimination” would still be mostly illegal, a business owner acting in accordance with his or her “deeply held beliefs” would be able to invoke religious freedom as a reason not to be required to serve that customer.
What about protected classes? Doesn’t federal law trump state law? Great question. But if it can be argued that said “deeply held beliefs,” not “discrimination,” were the basis for someone being denied service somewhere (examples: at a bakery, restaurant, or hotel), civil rights protections may not technically apply. And in a pretty ironic twist, the IRFRA turns the tables on the traditional discrimination narrative by essentially aiming to grant a layer of civil rights protection to the person denying the service rather than to the person being denied it. In this new legal narrative, the presumably religious business owner or operator would thus play the part of the oppressed, and the customer (or the federal government) would play the part of the oppressor demanding that he or she violate deeply held beliefs. Refusing to serve a customer would therefore fall into a religious freedom statute, rather than “discrimination.” Neat hat trick. (More on that in a minute.)
The IRFRA isn’t the first of its kind to hit the books in the US in recent years. In fact, it all began with the 1993 Religious Freedom Restoration Act, which aimed to help native Americans preserve and protect their ceremonial sites in the face of increasing government encroachment on their lands. A noble endeavor to be sure, but it eventually became the basis for far less noble attempts, most of which are aimed at “protecting” evangelical-leaning businesses from being forced to serve gay customers, or to grant them exemptions from participation in health insurance plans that involve contraception and abortion-related services.
How Indiana’s law is different from the original RFRA:
For starters, Indiana’s law is different from the original RFRA in that instead of protecting sacred sites from government overreach, it focuses on shielding businesses from prosecution or liability should they choose to refuse service to certain categories of customers they deem unfit to serve, for “deeply held” religious reasons. In the context of both a) the marriage equality debate (gay marriage is now legal in Indiana, so a portion of the electorate feels compelled to push back against that with some kind of anti-gay legislation), and b) the increasingly contentious battle by evangelical conservatives to “opt out” of healthcare plans that cover basic reproductive health services needed by many women today (none of which was an issue until someone decided that women’s access to normal reproductive healthcare services could be used as a wedge issue to help thwart “Obamacare”), Indiana’s “religious freedom” law can rightfully be seen through a completely different prism: while some of its language may emulate that of the original RFRA, its intent thrusts it in a completely different kind of legal and cultural orbit. (The hypocrisy on display in some of the most high profile cases relating to this can be so flagrant that it will make your head spin.)
Note: If my cursory overview doesn’t satisfy your need for precision and depth, here is a thorough analysis of the law written by an actual lawyer. It goes deep and it is a surprisingly great read. (Hat tip to Bobby Rettew.)
As a footnote, the recent wave of anti-gay legislation across the US should raise some serious red flags for most emotionally well-adjusted people, as should the increasingly violent and egregious rhetoric (even from elected officials) which helps drive support for discrimination specifically aimed at gay couples and LGBT people. You may not know that in Ohio, for instance, public and charter school teachers, as well school personnel, can be fired at will, solely because of their sexual orientation. Tennessee has seen attempts by some to push bizarre legislation that would require teachers to “out” students suspected of being gay to their parents. And if you really want to feel a shiver go down your spine, check out this ballot initiative introduced into the California legislative schedule just a few weeks ago. Yes, you read that right, it actually calls for the wholesale murder of gay citizens, and alternatively, fines, jail time and expulsion from the state). Equally troublesome is the shift towards broadly rebranding birth control pills (which are not just used for birth control, by the way) into “slut pills,” and the increasingly intrusive requirements forcing women to submit to unnecessary “examinations” and procedures meant to deter them from seeking certain types of medical services.
Tip: passing laws based on religious dogma, and whose purpose is to impose elements of religious doctrine on a population is not compatible with the concept of “Freedom of Religion.” It is, in fact, the exact opposite of it. If that wasn’t already clear before, sit back and let that sink in for a minute.
So anyway, this is where we are now:
Let’s get back to the main topic of this post. Click here for a quick recap from CNN to get caught up on the basics. And here is an overview of the protests following the signing of the bill into law. The blowback caused by this law is just getting started but it is already painting the entire state of Indiana in a very distinctive light, which this spoof tourism ad clearly lays out for you:
It’s actually painful to watch, because I know a lot of great folks in Indiana, and they really don’t deserve this. Same with other states considering similar laws (some of which are even more irresponsible than Indiana’s). Good thing that some of these states have reasonable governors in office. (Hey, credit where credit is due.)
Here’s a thought: I myself live in South Carolina, a very conservative state, a state which could very well pass sweeping anti-gay legislation, and I would be powerless to stop it. So it is important to realize that sometimes, residents of a state can become hostages to the whims of that state’s majority. To hold them responsible for decisions made by people with whom they vehemently disagree but cannot control or influence may end up causing far more harm than good. We are going to come back to that, but first, this:
Let’s be honest about what we are really dealing with in Indiana (and other states contemplating similar types of faith-based discriminatory legislation):
While everyone has a right to their personal opinions and beliefs (no matter how out there they may be, how extreme or weird, even how bigoted and hateful), everyone also has a right to be allowed to enter a business that is open to the public and be allowed to exchange legal tender for the same goods and services as everyone else.
When you obtain a business license, especially a retail license, that license comes with rules and responsibilities. Specific to this conversation: no one should ever be turned away from a place of business because of race, religion, nationality or sexual orientation, perceived or otherwise. This belief is anchored in (and supported by) an entire canon of US law, starting with the First Amendment’s freedom of (and from) religion clause and the language used by Justice Black’s 1947 decision in Everson v. Board of Education, all the way to Title II of the Civil Rights Act of 1964. (Yes, that Civil Rights Act, which was supposed to put an end to crap like this:)
Because yes, we already had this debate, and it blows my mind that some people want to pretend that we have not, or that it is “different” this time because “lifestyle choices” are different from skin color. Well, no. It isn’t different. For starters, religion is the lifestyle choice here, not sexual orientation. Second, interracial marriage is also a lifestyle choice, but that too used to be banned for “moral” and “religious” reasons. So no. Stop. Those kinds of arguments don’t hold water. We went through this already, half a century ago, and it makes it all the more shameful that Indiana voted to roll its laws backwards anyway. (Not to mention other states trying to do the exact same thing.)
And you know, it doesn’t matter if you’re a racist or a bigot, or if your religious beliefs “don’t agree” with the beliefs of infidels or non-believers or whatever. That isn’t the issue. What happens inside your head is none of anyone’s business, just like what happens in other people’s bedrooms is none of yours. You have the right to believe whatever you want. But when a person walks into your place of business, that person isn’t black or gay or Muslim or a “sinner” anymore, that person is just a customer. Period. You do not have the right to use your business license as a weapon against a category of people you don’t like, or whose life choices you don’t approve of. Refusing to serve culturally vulnerable classes of people is just not acceptable behavior in a free and civilized society. It already wasn’t acceptable back in 1963, and it sure as hell isn’t acceptable this side of 2015.
A quick observation about keeping faith-based arguments credible:
If you really consider yourself to be a devout Christian, start acting like one: welcome everyone without prejudice.
Matthew 7:12 – “In everything, therefore, treat people the same way you want them to treat you, for this is the Law.”
Luke 6:31 – “Treat others the same way you want them to treat you.”
Religious arguments tend to be a lot more credible when they are consistent with the most basic tenets of said religion. If your religious argument contradicts or stands in direct opposition to your stated faith, I’m sorry but you might have some explaining to do.
Okay, but can you really boycott an entire state? And more importantly… should you?
As my friend Cori Page astutely pointed out on her Facebook wall over the weekend, the problem in this instance is that we aren’t dealing with just boycotting individual businesses that behave badly. We are actually looking at a situation where a significant chunk of the US population is threatening (very seriously) to boycott the entire state. All of it. Already announcing actions against the state as a result of this law are Salesforce and Angie’s List, which aim to show the kind of massive impact hate-driven legislation can have on a state’s economy. The NCAA is also considering taking action, with other major US companies not far behind.
Naturally, the question Cori asks is this (paraphrased and expanded):
What if you happen to operate a business in Indiana that is against this kind of law? What if as an Indiana-based business owner, you find that kind of discrimination abhorrent? What if you even fought against it but lost to a majority that saw things very differently from you? How do you and your business avoid becoming a victim of a state-wide boycott?
It’s a fair question, so let’s see if we can address it in a productive way today.
5 simple tips to avoid getting sucked up into a statewide boycott you had no part in causing in the first place:
Okay, so your state is about to get hit with a major boycott that you had absolutely no hand in causing in the first place. How do you protect your business from being smacked down by the mother of all punitive economic fallouts?
1. Speak up.
– Pre: Your state is considering legalizing discrimination? Fight it. In public. (And of course, do not support the campaigns of political candidates whose extreme ideology makes them likely to sell out their own state’s business community just to score self-serving political points on the national stage. Especially over absurd wedge issues like gay marriage and access to contraception or women’s reproductive rights. Be very careful who you vote for, especially now that ideology and political grandstanding are starting to get the better of competence and reason, particularly in certain extremist political circles.)
– Post: Your state just passed a law legalizing discrimination? Fight it. In public. Yes, that means participating in some form of public protest. Doing it in private isn’t exactly going to help customers know that you’re on the right side of the issue, now is it? Make a public stand or you will get batched right along with every other business that remained cautiously silent on the issue until the boycott actually started. Yes, it’s a risk, but everything is a risk. Doing and saying nothing might be a much bigger risk than making a stand.
2. State your position clearly and unequivocally.
You don’t feel that gays or Muslims should be treated the way the Jews were treated by Nazi business owners in the 1930s? You don’t feel that unwed mothers or atheists should be treated the way black people were treated by KKK-friendly business owners in the 1930s? Great. Issue a statement to that effect. Make your business position on the matter clear, like Apple’s Tim Cook did this past week:
3. Make yourself stand out (and apart) from the target of the boycott.
Make sure that you use your website, your storefront, even your local media outlets to share your position with your market. Marc Benioff did it for Salesforce, fast and loud, and he was widely applauded by it. Butler University President James Danko also issued a letter making the university’s reaction clear, as did Indiana University President Michael McRobbie. Take a page from that bit of PR genius and make it work for you.
4. Brand and label yourself in a way that will separate you from the target of the boycott.
Talk to your creative department (or contract designer) about creating a label or sign that identifies your storefronts (brick & mortar and digital) as the kind of business that welcomes everyone. Place this sign or label in a conspicuous place near every significant touchpoint, from the front door to the point of sale. This will help immediately identify you as the kind of business that should be exempt from the boycott.
Here are some examples:
You can be as creative as you want, or you can just borrow stickers, signs and other designs from businesses and communities that have already had to deal with the same sort of nonsense you are now wrestling with.
5. Form (or join) a coalition of like-minded businesses.
Speaking of joining forces with other like-minded businesses, chances are that you are not alone. Look for organizations dedicated to helping to organize and even certify businesses around a particular issue or initiative. Here are two notable examples:
There are more, so look for them. And if you aren’t happy with their impact (or lack thereof), you can always create your own.
Also look into the Corporate Equality Index, which provides its own valuable set of insights.
If you do these things, and do them fast and early, you may just have a shot at keeping your business alive in spite of that massive statewide boycott. Short of packing up and moving to a different state (or taking your chances with doing nothing), it’s pretty much your best shot.
Bonus Tip #1 – A simple tip to business owners who insist on refusing service to certain categories of people they don’t like, in spite of how shamefully despicable that practice is:
Let’s say that you stand entirely at the opposite end of the spectrum when it comes to equal treatment of people who may or may not walk into your place of business. Let’s say that you want to discriminate against them, that you feel a divine right to be able to tell a gay customer, or a Jewish customer, or a Muslim customer, or a dark-skinned customer that they are not welcome in your place of business.
Or, to be fair, let’s say that bigotry isn’t actually the driving factor behind your need to refuse service to certain categories of customers. For the sake of argument, let’s say that your religion simply doesn’t permit you to serve an infidel, or a woman or an outsider. Let’s say that it prohibits you from selling anything to anyone who doesn’t belong to your religious or ethnic community. Let’s just pretend that this is your sole argument, your reason, your rationale.
Well, there is a way for you to have your way a) without acting like a complete asshole, b) without wrecking your state’s reputation in front of the entire world, and as if that weren’t enough, c) without also throwing your state’s economy into the crapper. Want to know what it is? I’ll tell you:
Instead of trying to peddle the absurd notion that recent state-level versions of the RFRA are equivalent in spirit, intent and scope to the original RFRA, the key to all of this has been quietly sitting in the Civil Rights Act’s Title II provision for 50 years: instead of applying for a retail license, turn your business into a private club. As a private club, you can select your members and opt to do business only with them. You can do this without hurting anyone, and without creating an atmosphere of pre-civil-rights prejudice and hatred.
There. Problem solved. You don’t have to pass any new laws, you don’t have to force your religious beliefs on other people or take away their freedoms to feed your own sad little ego trip, and you don’t even find yourself in the odd position of helping your home state join the likes of Somalia, Yemen, Iran and North Korea on international Human Rights watch lists. In other words, you can be a dick if you want to (or if your religion commands it). All you have to do to is do it in private, and nobody will care.
Bonus Tip #2: How to avoid crises of faith and conscience when your job requires you to do things you consider “sinful.”
My first boss used to tell this to his sales team every Monday: “Look, nobody is making you do this. You all choose to work here, to do what you do. If you don’t like taking off your clothes in front of strangers for money, don’t be a stripper. If you don’t like to pray, don’t be a preacher. If you have a problem with alcohol, don’t work in a bar. If you don’t like to sell, don’t be a salesman.”
He wasn’t wrong.
Some of the RFRA-inspired laws are also meant to allow for religious and conscience exemptions for, say, pharmacists who don’t want to be forced to sell condoms or birth control pills or day-after (Plan B) pills to patients. That too is part of the argument, at least according to some key proponents of the “my job is suddenly difficult for me to do as a believer, what with all that tyrannical secularism I never noticed until two minutes ago” movement.
Here’s a tip: before you choose a profession, make sure that you can actually perform the duties it requires of you without having to wrestle with impossible crises of faith. For example, if you feel that birth control pills and other types of medicines are evil, and you don’t want to find yourself in a position where you may be required to sell them to a patient, maybe being a pharmacist isn’t for you. Just like if you believe that alcohol consumption is sinful, you probably shouldn’t become a bartender. (Yes, a pharmacist seeking a religious exemption in regards to being forced to sell medication is about as odd as a bartender seeking a religious exemption in regards to being forced to serve vodka tonics. Did they not research what the job entails before deciding to make a career out of it?) So look, your career choices are your own. Don’t work for a company whose ethics you don’t agree with. Don’t work in a field whose morality offends yours. Don’t choose a career that you know for a fact will conflict with the tenets of your faith. And if you made a mistake picking a career track that isn’t right for you, (hey, it happens) don’t try to punish other people for it. Either sort yourself out and do your job like a professional, or move to a career better suited to your needs. (Being expected to do your job, a job you applied for all on your own, isn’t oppression.)
Your two step plan regarding that particular topic goes like this –
Step 1: Be responsible when choosing a career path.
Step 2: If you made a mistake, own it. Don’t be a dick about it.
Bonus Tip #3: How to tell if your religious liberties are actually being violated:
Since some people seem to have trouble understanding when their religious liberties are being violated, here is a handy quick-reference chart that should help clarify things a bit:
You should definitely check out this Human Rights report on proposed anti-LGBT legislation in the US. It’s pretty scary, and it should help dispel any notion that the sort of legislation passed in Indiana this past week is, as Governor Mike Pence curiously stated, “not about discrimination.” (An odd thing to say given who he invited to stand behind him on the day he signed the bill into law.)
Civil rights, basic human rights, making sure that the weakest and least represented among us aren’t oppressed or bullied or discriminated against… none of that should be marred by partisanship. Being a good neighbor is a pretty universal thing. Or at least it ought to be, no matter what your politics are. And if you’re a business, none of that should matter anyway. Serve your customers. Help them solve a problem and fill a need. Be professional and kind. It really isn’t that difficult.
And if your state becomes the target of a massive boycott, I hope that the above tips will help you weather the storm until your state legislature finally comes to its senses.
That’s it, we’re done. I hope that was helpful to everyone. (Because, yes, everyone is welcome here.)
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