You're Viewing the Archives
Return to IVN's Frontpage

Do Businesses Have a Private Right to Discriminate?

by Shawn M. Griffiths, published
On Thursday, Republican Indiana Governor Mike Pence signed the "Religious Freedom Restoration Act," giving business owners the legal protection to deny service to someone if providing the service conflicts with their religious beliefs. The law is now the subject of heated controversy nationwide.

Opponents of the bill call it legal discrimination targeted at the LGBT community, while supporters say it prevents the government from forcing people to violate their conscience.

"[I]n a secular society, though a person may have the right to practice his or her religion freely, they do not have the right to force those beliefs on others," IVN Independent Author James Spurgeon writes. "Everyone is supposed to be treated equally under the law."

Continue reading: "'Religious Freedom Laws': The Jim Crow Laws of the 21st Century"

However, Governor Pence argues that the law is not about discrimination or forcing one's beliefs on others. According to NPR, he said if he thought the law intentionally discriminated against any group in any way, he "would have vetoed it."

"The legislation, approved by Indiana's GOP-controlled House and Senate, prevents state and local governments from 'substantially burdening' a person's exercise of religion unless a compelling governmental interest can be proved," NPR reports.

Pence said in a statement:

"The Constitution of the United States and the Indiana Constitution both provide strong recognition of the freedom of religion but today, many people of faith feel their religious liberty is under attack by government action."

However, the real question that needs to be asked is, do businesses have a private right to discriminate?

It is a hard question to ask because advocates of "religious freedom" laws don't want to phrase the issue in these terms. And while critics want to put emphasis on the word "discriminate," they avoid discussing the rights of business owners.

It is also a question that does not have a simple answer.

This issue is not just about a wedding photographer who doesn't want to take pictures at the wedding ceremony of a same-sex couple. It is not just about religious rights. It is about distinguishing the private rights of business owners from the compelling interest the state has to protect people from public discrimination.

It is not uncommon to see a sign in a restaurant that reads, "We reserve the right to deny service to anyone." Opponents of Indiana's "Religious Freedom Restoration Act" and similar laws are not raising objection to these signs, because there is a certain level of discrimination that society accepts.

If someone walks into a business or restaurant and does not have appropriate attire on based on the dress code of the business, many people will agree that the business has the right to refuse service in this instance. Yet, is this not a form of discrimination?

There are two questions we must ask:

1. How do we define discrimination?

2. How do we determine what is and isn't an acceptable form of discrimination?

Businesses are being sued across the nation for refusing to cater to same-sex weddings, but is the belief that same-sex marriage is wrong alone a form of discrimination? Is the state compelled to force these businesses to provide their services or does the burden fall on the same-sex couple to simply take their business somewhere else?

Should this situation be treated the same as a business owner who puts a sign in his or her window that reads, "No gays allowed."?

The problem is that the current debate over these "religious freedom" laws is treating these scenarios like they are the same because we are not having a substantive discussion on what is at the heart of this issue. How do we protect the private rights of businesses while protecting the public right not to be discriminated against?

It is a complicated issue and it needs to be treated like a complicated issue.

About the Author