State Rep. Mike Johnson, R-Bossier City, having catalyzed a kerfuffle about marriage-related legislation, now portrays his bill as being so narrowly tailored that an observer would wonder whether it’s even worth considering.
But Johnson’s portrayal of House Bill 707 as an almost anodyne exercise is not entirely accurate. The bill may have some real bite after all. And that’s a good thing.
Writing at The Hayride website, Johnson portrays HB707 as “a very simple proposal … that seeks to do just one important thing: prevent adverse treatment by the State of any person or entity on the basis of the views they may hold with regard to marriage.” Furthermore — and this is crucial — he writes: “This new law will have no application to private business owners and their decisions about how and to whom they want to provide their goods and services.”
If that last part were accurate, then the bill would be of little note. First Amendment jurisprudence remains blessedly strong enough that no state could get away with denying a contract or business license to somebody merely and expressly because of that person’s views on same-sex marriage. With or without HB707, the mere expression of an opinion is amply protected from infringement by the U.S. Constitution.
If Johnson’s bill does only what he claimed above, it would make that protection for opinions more explicit, thus perhaps forestalling an expensive court challenge to vindicate that right. It also would achieve its purpose, as he described to me in a phone interview, of ensuring that “bureaucrats remain neutral while the legal process plays out.” In those senses, it would be a small but useful tool against tyranny.
Yet the law’s actual language is a tad stronger. The bill’s proposed R.S. 13:5245(A) reads thusly: “Notwithstanding any other law to the contrary, this state shall not take any adverse action against a person, wholly or partially, on the basis that such person acts in accordance with a religious belief or moral conviction about the institution of marriage.”
Re-read that. This isn’t just about protecting an opinion. It’s about protecting someone who “acts” in furtherance of that opinion. Despite Johnson’s stated intentions, HB707 could indeed protect (from state penalty) a business owner’s actions with regard to “how and to whom they want to provide their goods and services.”
So, yes, this might protect the florist, baker, photographer or singer who won’t provide their artistic talent to a same-sex wedding. These artists could still be harmed by private boycotts or social ostracism and maybe (but not definitely) by private suits; but at least state government, with its vast powers, could not punish them for adhering to their faith.
Good. As I and many others — conservative and liberal, homosexual and straight alike — have argued elsewhere, this prohibition against state penalties should be celebrated. A baker who makes cakes for a homosexual’s birthday parties but not his same-sex wedding obviously is not discriminating against a class of people but merely avoiding participation in a particular ceremony. Likewise, a traditionalist Catholic cantor who sings “Ave Maria” professionally at weddings should be perfectly free not to sing such a clearly religious song at a ceremony specifically prohibited by her faith.
Business owners and executives frequently make these sorts of decisions. Apple CEO Tim Cook has bitterly criticized Indiana’s new religious-freedom law — yet his company denies an otherwise-available app to a faith movement called the Manhattan Declaration because the Declaration includes a paean to traditional marriage. Why should Apple have that right to deny service to traditionalists but a traditionalist photographer lack the right to deny service for a homosexual ceremony?
This is not Jim Crow redux. A specific ceremony is not an immutable characteristic, and songs or photos are neither public conveyances nor provisions of basic sustenance.
Anybody who would ill-treat homosexuals per se would be unwelcome in my house. And anybody who denies them, as a class, a true public accommodation should be candidates for legal sanction. But that’s not what this is about. This is about our nation’s first freedom, the liberty of faith.
Because Rep. Johnson’s bill is not anodyne but instead takes a small, further step to protect such liberty, it decisively merits passage.
New Orleans native Quin Hillyer is a contributing editor for National Review. You can follow him on Twitter, @QuinHillyer. His email address is email@example.com, and he blogs at blogs.theadvocate.com/ quin-essential.