Gary Johnson’s Religious Freedom Position Needs Some Critical Analysis

Over at the Washington Examiner, Tim Carney, managed a few minutes to chat with Libertarian Party presidential candidate Gov. Gary Johnson while at this week’s Democratic National Convention. The chat focused on two issues of importance to more socially conservative libertarians—religious freedom rights and abortion.

On religious freedom, Johnson is staying true to his position against allowing religious-based exemptions to discrimination laws, which has earned him the ire of not a few libertarians. In Carney’s conversation with him, what feels very clear is that Johnson feels strongly about his position, but hasn’t really analyzed the complexity of the issue nearly enough:

Do you think New Mexico was right to fine the photographer for not photographing the gay wedding?

“Look. Here’s the issue. You’ve narrowly defined this. But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we’re gonna open up a can of worms when it come stop discrimination of all forms, starting with Muslims … who knows. You’re narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of.”

Can the current federal [Religious Freedom Restoration Act] be applied to protect things like the wedding photographer and the Little Sisters of the Poor?

“The problem is I don’t think you can cut out a little chunk there. I think what you’re going to end up doing is open up a plethora of discrimination that you never believed could exist. And it’ll start with Muslims.”

A host of responses to this rather simplistic take on what is a complicated issue:

• Formulating laws and regulations based on the “precautionary principle” is bad in general, but it’s particularly bad when discussing the limits of liberty. To the extent that the law restricts a liberty, like freedom of religious expression and freedom of association, it needs to be tied to widespread harms that actually occur, not on a fear of what might happen. Johnson is essentially making the same kind of argument that drug warriors make. We can’t legalize marijuana because it might lead users to harder drugs. Or people will get behind the wheel stoned and cause accidents. These arguments have not been based on factual analysis but on a fear of what might happen. Undoubtedly there is animosity against Muslim citizens and they may face additional discrimination and rejection in the current environment. But Johnson has failed to provide evidence that the slippery slope he suggests here will actually happen, will be widespread, and will require government intervention to fix. The public accommodation laws of the Civil Rights Act are actually rather narrowly defined based on the types of widespread and coordinated discrimination minorities were actually facing at the time.
• The Religious Freedom Restoration Act (RFRA) is simply not blanket permission to discriminate on the basis of one’s beliefs. This seems to elude Johnson. The RFRA is a method of defense against government accusations of legal or civil violations by claiming that one’s religious practices run counter to the law. The government then must make a case that the law furthers a valid government interest and that forcing people to comply with the law is the least intrusive way they can further that interest. So the government needs to argue it has a legitimate need to make people comply with the law, despite religious beliefs. In the Little Sisters of the Poor case, which was about whether a religious organization could be forced to cover the costs of contraception for female workers, the Supreme Court kicked the case down to lower courts to see if there was a way for the government to meet its goal of having women’s health needs covered while not forcing a Catholic organization to violate its own religious beliefs by getting directly involved in it. While the RFRA wasn’t actually invoked in the court’s decision to bounce it back, you can see the kernels of what it means here. If the state is going to suppress somebody’s right to religious expression, it better make sure there’s no other way to get what it wants. In the Little Sisters case, it seems very clear that there are other ways.
• We do already have nuances to these laws in areas like compelled speech and for some religious considerations. The reason that a baker can be forced to make a wedding cake for a gay couple is because the courts don’t consider baking inherently a form of expression. Bakers are not showing support or approval of a gay marriage simply by making a wedding cake, according to existing legal precedents. But when an actual message is applied, then people are allowed to say no, they don’t agree with that statement, and refuse to do business with them. A baker cannot be forced to frost a cake with a message that is either pro- or anti-gay marriage, and a printer can’t be required to produce T-shirts or books with messages he or she finds offensive for religious (or other) reasons. The Civil Rights Act of 1964 itself offers some exemptions from federal discrimination rules for religious organizations.

All in all, Johnson’s position on religious freedom ends up coming across as though it’s based on a fear that it’s going to lead to outcomes that he finds detestable and not an analysis on principles that guide his thoughts.