Few recent battles have seized the nation’s moral compass quite as emotionally as the one going on in Indiana right now, pitting defenders of religious liberty against opponents of discrimination based on sexual orientation. But Apple’s chief executive Tim Cook brings the moral confusion surrounding the battle to a head this morning with his op‐ed in the Washington Post. Lumping together both legitimate and illegitimate “religious freedom restoration acts,” he writes, “they go against the very principles our nation was founded on.”
Really? Let’s see if that claim stands up. We find those principles in the nation’s founding document, the Declaration of Independence. And Cook himself invokes them: freedom and equality. Rightly understood, they hold that we’re all born free, with equal rights to remain free. That means—to cut to the chase—that we may associate with anyone who wishes to associate with us; but we are equally free to decline to associate with others, for any reason, good or bad, or no reason at all. That right to discriminate is the very essence of freedom. That’s why people came to this country, to escape forced associations—religious, economic, political, or otherwise.
Cook turns those principles on their head. He says religious freedom bills “rationalize injustice” by, for example, allowing a baker to decline to bake a cake for a same‐sex wedding. He would compel the baker to accept that request, by force of law. That’s the very opposite of the freedom of association—the right to be left alone—that the nation was founded on.
Just to be clear, I’m as offended as Cook is by that kind of discrimination. But I’m even more offended by the belief that we can force people to conform to our values when they’re asking simply to be left alone to enjoy their right to pursue their values. And precisely there is the source of Cook’s confusion, his conflation of rights and values, two very different moral notions. True liberalism recognizes that distinction. It’s the epistemic foundation of a free society, absent which not only intolerance reigns—ironically, what Cook charges even as he practices it—but intolerance coupled with the force of law.
There are many related issues, of course—too many for a mere post. (See here, here, and here.) These religious freedom restoration acts arose, for example, only because of an erroneous 1990 Supreme Court decision. More deeply, our anti‐discrimination law, inconsistent as it is with freedom of association, arose understandably from the ashes of slavery and Jim Crow; and its spill‐over to private discrimination was probably necessary to break the back of institutional racism in the South. More immediately, the discrimination permitted here, as Cook says, is “bad for business” and therefore will likely arise only in rare cases. But the principle at issue is crucial. If we lose that, as this battle suggests we’re doing, it will fall ever more to government to determine what values will and will not be tolerated, and that will be the end of liberty—including the liberty to offend, which a free society must tolerate.
