Let authority of ‘hidden law’ rule in Arizona

Published: March 3 2014 | 11:26 am - Updated: 1 April 2014 | 9:05 am in

Future historians likely will be flummoxed by the moment we’re living in. In what amounts to less than a blink of an eye in the history of Western civilization, homosexuality has gone from a diagnosed mental disorder to something to be celebrated — or else.

Indeed, the rush to mandatory celebration is so intense, refusal is now considered tantamount to a crime. And, in some rare instances, an actual crime if the right bureaucrat concludes that you have uttered “hate speech.”

Or, if you refuse to bake a gay couple a cake for their wedding. That was the horror story that sparked much of this foofaraw.

Arizona’s proposed SB 1062 would have amended the state’s 15-year-old Religious Freedom Restoration Act in a few minor ways so as to cover businesses the way it already covers government.

It would have allowed small businesses to decline work that violated their consciences, unless the government could show a compelling reason why such refusal was unreasonable or unjust.

Now, lest you get the wrong impression, I am no opponent of same-sex marriage.

The country, never mind the institution of marriage, has far bigger problems than gays settling down, filing joint tax returns and arguing about whose turn it is to do the dishes. By my lights it’s progress that gay activists and left-wingers are celebrating the institution of marriage as essential.

But I find the idea that government can force people to violate their conscience without a compelling reason repugnant. I agree with my (openly gay and black) friend, columnist Deroy Murdock. He thinks private businesses should be allowed to serve whomever they want.

In 2000, Jonathan Rauch, a (gay) brilliant intellectual and champion of same-sex marriage, wrote a wonderful essay on “hidden law,” which he defined as “the norms, conventions, implicit bargains and folk wisdoms that organize social expectations, regulate everyday behavior and manage interpersonal conflicts.”

Basically, hidden law is the unwritten legal and ethic code of society. Abortion, assisted suicide and other hot-button issues once were settled by people doing right as they saw it without seeking permission from the government.

“Hidden law is exceptionally resilient,” Rauch observed, “until it is dragged into politics and pummeled by legalistic reformers.” That crowd believes all good things must be protected by law and all bad things must be outlawed.

As society has grown more diverse (a good thing) and social trust has eroded (a bad thing), the authority of hidden law has atrophied. Once, it was understood that a kid’s unlicensed lemonade stand, while technically “illegal,” was just fine. Now, kids are increasingly asked, “Do you have a permit for this?”

Gay activists won the battle for hidden law a long time ago. If they recognized that, the sane response would be, “You don’t want my business because I’m gay? Go to hell,” followed by a vicious review on Yelp. The baker would pay a steep price and we’d all be spared a lot of stupid talk about yellow stars.

 

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