How to argue the case for Religious Freedom Restoration Acts

Last Thursday, March 26, Governor Mike Pence of Indiana signed into law the Religious Freedom Restoration Act (RFRA), the intent of which is to offer commercial vendors a safe harbor if an activity that is requested of them violates their religious beliefs.  The usual suspects have jumped on this event, notwithstanding that RFRAs go all the way back to the Clinton administration in 1993.

So how should the argument on religious freedom in business be crafted?  Forget the First Amendment, or, rather, let it be the nutmeg on the eggnog. 

What is the eggnog itself?  The 13th Amendment!  No involuntary servitude.  That is what is going on here.  Public accommodation must be observed.  But there is an easy dividing line.  Public accommodation refers to standard products.  A room for a night in a hotel is a standard product.  First come, first served.  No questions asked.  Same with a bag of M&M’s.  You walk in the store.  You pick out a bag of M&M’s.  You put it on the checkout counter.  And you get your candy, whatever your color, whatever your preferences.  And this applies even if you are…a Republican!

That is the dividing line here – requiring the labor of the vendor to be provided involuntarily.  It doesn’t make any difference if the customer is willing to pay.  Slaves were compensated with food and housing. 

It is the involuntary nature of the labor that is the point at issue.  If you walk into a bakery and want to buy one of the cakes on the display rack – assuming they are for sale – then go to it!  But you cannot require the baker to make a special cake for you.  Same for photographing, although there, there is no standard product.

Make the case.  And base it on the 13th Amendment where it belongs.

And keep us all out of re-education camps.

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