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The unacceptably high cost of religious freedom laws

Gov. Mike Pence of Indiana
Source: Governors office of Indiana
Gov. Mike Pence of Indiana

Today 37 states and Washington, D.C., offer marriage licenses to same-sex couples. Is it a coincidence that scores of bills have erupted in state legislatures in the name of "religious liberty," from those who oppose same-sex marriage?

Nope. While same-sex couples and lesbian, gay, bisexual and transgender (LGBT) families join center stage, rising choruses of "not so fast" are flaring up. Conservative activists and legislators are rushing to build statutory firewalls against LGBT acceptance and cooperation—particularly ones that deal risky and direct blows to American commerce.

After all, religious freedom advocates insist, even if gay couples choose to marry why should we force a business owner or even a solitary employee to serve them if this violates his faith?

For American businesses however, this begs the questions: What price really justifies discrimination? How do we advocate free enterprise by turning away whole classes of customers?

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All of these issues have just been put to the shock test, as Indiana Gov. Mike Pence signed his state's law that opens the door for individuals or companies to refuse actions that impose a "substantial burden" on their religious beliefs.

The blowback is fierce, and shows no signs of easing. This is shown by the swift response of business leaders and powerhouses like the NCAA (based in Indianapolis) preparing to host this year's Final Four tournament.

While chambers of commerce and technology companies have been among the most vocal critics, including Apple, Yelp and Salesforce, others are now speaking out. The CEO of Angie's List just declared their Indianapolis expansion canceled, and a host of other U.S. businesses are moving fast to ban future travel and business contacts with Indiana.

To be clear, religious liberty laws can touch both government actions as well as those in the private sector. While both are disturbing, for the moment my concern is with the American marketplace.

Ten years ago, when I wrote about the emerging LGBT economy in my book, "Business Inside Out," I described the signs of businesses past that hung in shops, hotels, restaurants and other public accommodations: "No Jews," "No Negroes," "No Irish," or "No Chinese or dogs."

Not one declared, "No Homosexuals." There was absolutely no need. It was then universally acknowledged that shopkeepers and business owners could ban LGBT customers and guests outright.

Religious objectors in the market are by no means new. In doctrinaire Puritan times, non-believers had little chance to open shop or expect civil treatment. Instead they took their "outsider" faith elsewhere or even formed new colonies. And in the 20th-century Jim Crow America, Biblical dictates guided legislatures and courtrooms to uphold segregation.

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To be fair, in our 21st century, religious freedom legislation is not identical to hated Jim Crow laws. However, these modern descendants do have the disturbing aroma of stigma and discrimination that masquerades as true faith.

Advocates for religious freedom bills say they don't urge discrimination against individual gay people, but rather are seeking religious exemption from recognizing same-sex couples and their families.

After all, any gay man or lesbian, some argue, can walk into a bakery and buy a cake, or simply pick up flowers at any florist. The shrillest objections are against two gay men or two lesbians spending their money as a couple.

The targets of the current crop of bills are same-sex couples wishing to be respected equally wherever they shop, plan their wedding, choose to live, seek medical care, and decide whether to have and raise their own children.

Experience shows that, given choices, gay consumers and couples will favor friendly retailers and services, while avoiding shops, services and vendors where hostility or rejection lurk. However, the ability to make a free purchasing choice is a far cry from being lawfully and forever blacklisted by a religious business owner or by a devout employee of a larger company.

First, whose religion under law are we safeguarding? Only Christian evangelicals instructed by church elders to shun LGBT families, and no others?

Should dogmatic Christians also shun adulterers as well as nonbelievers like Jews, Muslims and atheists? Should orthodox Jews tell Muslim families to take their trade elsewhere too? Should evangelical Christians deny service to Mormon customers perhaps? These cruel questions are punctuated by the sounds of shop doors slamming.

Second, in our competitive marketplace, can any business really afford to turn away legitimate customers? When gay couples shop for flowers and wedding cakes, they are not asking the business owner to bless their union nor to change their religious convictions at all. They are asking for equal service and courtesy. When one class of customer is turned away—any such company bears the burden of lost profit and lost reputation by many more.

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Third, what about the burdens, costs and risks for any employer, when one or a handful of employees are lawfully free to shun a married same-sex couple because of their professed faith? The employer is saddled unfairly with harmful barriers to free commerce that should trouble us all.

There is no question that churches, temples and mosques and the religious leaders who serve them are inviolate from any command to use their services or premises that are outside their faith.

Yet, in the public sphere; faith is neither a tool nor social club designed to create special exemptions, liberties or litigious boundaries when capitalistic acts are intended between consenting adults.

Bob Witeck is the president of Witeck Communications Inc. (www.witeck.com) in Washington, D.C. Since 1993, he has advised major corporations on their LGBT business, marketing and communications strategies.