Drawing a City

This past week, Indiana enacted a religious freedom law much like the one that remains under consideration here in Georgia. Despite Governor Mike Pence’s assurances that the bill has nothing to do with discrimination, there was a swift—and very negativereaction on the part of some in the business community.

Leading the charge was SalesForce.com CEO Marc Benioff, whose Twitter feed, according to the Washington Post  “has been an all-out campaign against the new law, with threats to ‘dramatically reduce’ the company’s investment in the state, calls for other tech CEOs and tech industry leaders to vocally oppose the measure, applause for those tech leaders who have come out against it, and ultimately, a decision to cancel all Salesforce programs that would require the company’s employees or customers to travel to Indiana.”

Others have followed suit: Apple CEO Tim Cook, NCAA President Mark Emmert Angie’s List CEO Bill Oesterle, and Yelp CEO Jeremy Stoppelman, among others, have also issued statements of concern, punctuated by varying levels of passion or, some might say, hysteria.

I get that—apart from those closely-held companies, like Chick-Fil-A and Hobby Lobby, whose owners are deeply religious and treat their work as a calling—business as business has no great immediate concern with or interest in religious liberty. Indeed, religion often presents itself in the business world as somewhat of an inconvenience. Employees don’t want to work on their Sabbath or on a religious holiday. They sometimes believe they have a religious duty to dress in a particular way, which may or may not square with the dress code. Or perhaps they have religiously-inspired scruples about performing certain sorts of services, as when a pharmacist doesn’t want to fill a prescription for an abortifacient. To be sure, I would argue that if business owners took a wider view, they might have a greater appreciation for employees who were conscientious and worked hard because, for example, they themselves regarded their work as a calling, or because they belonged to a religious community that held them accountable for their character. But that’s not the point of this essay.

My question here is why so many business leaders reacted so negatively to a law that doesn’t depart significantly from the 1993 federal law that won overwhelming bipartisan support and that already was on the books (either by a positive act of legislation or by judicial interpretation) in twenty-nine other states.

Some business leaders are, I think, simply averse to conflict. When a sympathetic, well-funded, and vocal constituency makes a stink about an issue, when a piece of legislation is “controversial,” they shy away from it as being “bad for business.” They may not be particularly well-informed about the details of the issue, but they do know that there is controversy and conflict, and that’s unlikely to boost their bottom line (unless, I suppose, they’re in the news business).

That certainly explains some of the business opposition to the Indiana bill and its counterparts around the country. Gay rights groups have been vociferous in mischaracterizing the religious liberty legislation as offering a license to discriminate, and their efforts have been aided and abetted by a press that too readily puts “religious liberty” in scare quotes and lazily adopts the “right to discriminate” shorthand in describing the bill. It’s not my purpose here to speculate about the motives of either gay rights groups or reporters in taking this tack. Suffice it to say that they have, and that too many people—among them CEOs who are paid to know better about a good many things—have simply fallen for this ploy.

Other business leaders—I put Marc Benioff and Tim Cook in this category because they have chosen virtual megaphones to trumpet their opposition to this legislation—act less on the basis of reasons connected to their bottom line and more because they are committed to the cause of gay rights and same-sex marriage. I’m the last person to say that they’re not entitled to their opinions and entitled to use any legal means to promote them.

But I’m also entitled to call them out. Let me begin with Tim Cook, who authored (or at least put his name to) an op-ed in the Washington Post. I’ll leave aside the fact that he repeats the entirely predictable mischaracterization of the Indiana bill. He then ties it to what he says are “nearly 100 bills designed to enshrine discrimination in state law.” But the only example he offers is a Texas bill that would, as he puts it, “strip the salaries and pensions of clerks who issue licenses to same-sex couples.” It is indeed a striking piece of legislation that would be unlikely, I think, to survive a legal challenge. But I would be surprised if the bill proposed by a Republican backbencher even came to a vote in the state legislature. So, yes, there are people out there who are seeking legislative means to oppose same-sex marriage, though I think it is illiberal to describe such efforts as “dangerous,” as Cook does. He wants to make it easier for us to get to that adjective by assimilating this brand of religious freedom to racial discrimination:

I remember what it was like to grow up in the South in the 1960s and 1970s. Discrimination isn’t something that’s easy to oppose. It doesn’t always stare you in the face. It moves in the shadows. And sometimes it shrouds itself within the very laws meant to protect us.

So there you have it: according to Cook, people who support religious liberty are kinda sorta like the people who supported Jim Crow. Some of them may be; I don’t know. But when you actually read the legislation, which tracks the 1993 federal legislation supported by an overwhelming bipartisan majority, it’s hard to believe that language endorsed by Senate minority leader-in-waiting Charles Shumer (in the 1993 federal law) and Barack Obama (when he voted for the Illinois RFRA in 1998) is the functional equivalent of Jim Crow.

Then there’s Marc Benioff, who has gone one giant leap beyond editorializing. He has proposed to pull his company’s business from Indiana because of the “anti-gay” (the scare quotes are quite appropriate here) legislation. Interestingly, however, he has not said the same thing about his company’s business in, say, Dubai, whose anti-gay (note there are no scare quotes, since the animus is very real) policies are notably harsh. According to the State Department’s 2013 report on human rights:

Both civil law and sharia criminalize consensual same-sex sexual activity. Under sharia individuals who engage in consensual same-sex sexual conduct are subject to the death penalty. Article 177 of Dubai’s penal code allows for up to a 10-year prison sentence for consensual sex. There were prosecutions for consensual same-sex activity during the year. At times the government subjected persons against their will to psychological treatment and counseling for consensual same-sex activity.

At the very least, then, he looks like a hypocrite, since his treatment of jurisdiction in regard to this issue is inconsistent. Perhaps he can explain what good reason there is for treating his fellow Americans more harshly than the citizens of Dubai. He might answer that he has more clout in Indiana than he does in Dubai. Some might call that picking one’s fights wisely. Others might regard it as being a bully.

In the end, businesses will do what they will do. Mostly that means following their bottom lines. If there is business to be done and money to be made, they will do it. At least that’s what they keep telling us. If it’s true, then I have confidence—if only our political leaders displayed some backbone—that threats of boycotts and so on, won’t be long-lasting, and that any vacuum left by a business leader who acts against his company’s interest will be filled by someone else who sees an opportunity. As for the ideologues in the corporate corner offices, I assume that if they act against their company’s economic interests, their shareholders will eventually punish them.

Ain’t capitalism grand?