Last night, Apple CEO Tim Cook published an op-ed for The Washington Post, titled “Pro-discrimination ‘religious freedom’ laws are dangerous” (his scare quotes, not mine.) It’s already been shared tens of thousands of times and is a trending article on Facebook.
The article is undoubtedly rousing and emotional, but it’s sadly lacking in real substance.
Before responding to it, let me say that I’m a big fan of Apple, and that I’ve been generally impressed with Cook’s leadership, how he’s continued Apple’s success after Steve Jobs. Cook was placed in a difficult situation yet continues to flourish.
Having said that, Cook’s new article does not match his otherwise shrewd thinking. It’s confused and misguided, the regrettable result of a gifted tech executive trying to play political philosopher. Just as I would never presume to pontificate on nanotechnology or consumer electronic sales, it’s probably not a good idea for (most) tech CEOs to veer outside their expertise.
Cook begins his article by warning of a “dangerous” trend, washing over the country:
“A wave of legislation, introduced in more than two dozen states, would allow people to discriminate against their neighbors.”
Right off the bat, Cook misses a key distinction. Discrimination is not inherently bad. We may not realize it, but everyone in this country discriminates against our neighbors, and happily so. In fact, every law on the books is designed to discriminate.
The word “discriminate” simply means “to recognize or perceive differences,” which is what we do every day. For example, we discriminate against men when we prohibit them from women’s locker rooms (though that may be changing), against speeders when we say they have to drive under 20 m.p.h. in a neighborhood, and against young adults when we don’t give them a “senior’s discount” at restaurants. Discrimination simply means treating different things differently, and there’s nothing wrong with that.
What we don’t accept is unjust discrimination, which is discriminating (i.e., treating differently) two things that are, in the relevant sense, equal. Unjust discrimination, for instance, would involve allowing some women into the women’s locker room and not others, some ordinary drivers to speed but not others, or some senior citizens to get the “senior’s discount,” but not others, all else being equal.
(Or, to use a more relevant example, Apple discriminates by only offering their products to people who have money. But since rich people are different than poor people in the relevant sense, namely the financial one, the discrimination is not unjust.)
So from the beginning, Cook misses a basic and necessary distinction between discrimination in general (which we all accept and practice) and unjust discrimination.
He ironically fails to discriminate discrimination.
The question at hand is not whether religious liberty laws allow discrimination—all laws do—but whether they allow unjust discrimination.
(In fairness, Cook isn’t alone in missing this critical distinction. In his statement concerning the controversy at hand, Butler University president James Danko claimed to “reaffirm our longstanding commitment to reject discrimination and create an environment that is open to everyone.” If Butler truly rejected discrimination, there would be no application process.)
“Some [legislation], such as the bill enacted in Indiana last week that drew a national outcry and one passed in Arkansas, say individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law.”
First, Cook seems unaware that state religious liberty laws, including the Indiana version, are not something new. The Indiana law is based on the Religious Freedom Restoration Act (RFRA), a 1993 federal law that has served Americans well for more than twenty years. The law passed with 97 votes in the Senate (out of 100) and was unanimously accepted by the House. It was then signed into law by then-President Bill Clinton.
(Also, in 1998 then state-Senator Barack Obama voted for a nearly-identical RFRA bill. It passed the Illinois Senate 56-0 and became law on July 1, 1998.)
Indiana governor Mike Pence, who signed the Indiana version of the RFRA, affirmed, “For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.”
If Cook thinks it will, if he thinks RFRA-based laws are egregiously unjust, then he must equally condemn the beliefs of pretty much every Congress member of the mid-to-late ’90s (many still in office), the then-President, and more than a dozen other states, stretching back more than two decades. I doubt Cook is willing to go that far, but if he’s consistent, he would have to.
Second, Cook brings us a good question: is the purpose of religious liberty laws really to allow individuals to arbitrarily “refuse service to a customer”? If we allow religious liberty laws, such as the federal RFRA or Indiana’s version, won’t that allow people do whatever they want in the name of religion? Won’t that give people permission to unjustly discriminate against others simply because “my religion says so”?
The answer, thankfully, is no.
Religious liberty is not an absolute right, a key fact Cook ignores. As Ryan Anderson explains:
“There will be times when the government can show it has a compelling reason for burdening religious expression—to ensure public safety, for instance.
But Religious Freedom Restoration Acts set a high bar for the government to meet in order to restrict religious freedom. The way we’ve learned to live in a pluralistic society, with diverse religious and moral opinions, is to have a balancing test like the one the Religious Freedom Restoration Act provides.”
A robust conception of religious liberty provides every person the freedom to seek the truth, form beliefs, and live according to the dictates of his or her conscience—whether at home, in worship or at work. This includes Cook, Apple, other businesses, and every individual in this great country.
The purpose of the RFRA is not arbitrary discrimination but to protect the religious liberty rights enshrined in the Constitution. The RFRA, and laws based on it, provide a commonsense way to balance this liberty with compelling government interests, protecting citizens from violating their consciences unless those interests can’t be satisfied through any less-restrictive means than constraining religious liberty.
“These bills rationalize injustice by pretending to defend something many of us hold dear. They go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality.”
Notice in the first sentence how Cook just assumes that RFRA-based laws “rationalize injustice” without actually offering any support. Yet this is precisely what’s under debate: whether the RFRA laws are just or unjust forms of discrimination.
When someone assumes the conclusion of his argument as part of his argument, he falls into what philosophers call “begging the question.” It’s one of the most basic, elementary fallacies. Merely asserting or assuming something doesn’t make it true.
Cook also claims that RFRA-based laws “go against the very principles our nation was founded on.” This seems odd since the laws directly flow from the First Amendment—”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”—which, is, in fact, a principle that our nation was founded on.
This principle means we cannot enact laws that force a Native American to cut his hair short, or Christians to photograph “same-sex marriage” ceremonies, or Jewish deli owners to serve pork, or Muslim artists to paint pictures of Jesus, unless there are compelling government interests in any of those activities (and for these particular examples, there are not.)
“America’s business community recognized a long time ago that discrimination, in all its forms, is bad for business….From North Carolina to Nevada, these bills under consideration truly will hurt jobs, growth and the economic vibrancy of parts of the country where a 21st-century economy was once welcomed with open arms.”
This isn’t true. Most of us praise discrimination in some businesses. For example, some companies only use organic products—discriminating between natural and unnatural ingredients—and the decision leads to more business. Other businesses offer discounts to veterans, firemen, or senior citizens—discriminating between those customers and everyone else—in order to honor those groups (and boost their own public image.) Some investment companies only welcome people who have a certain net worth, discriminating against poorer people but using exclusivity to increase comapny appeal. Some companies, like Chick-fil-a, discriminate against weekend shoppers by closing on Sundays, yet still show enormous profits. All these examples show that discriminating isn’t always bad for business, as Cook surmises.
A second point is that what’s under consideration is whether discrimination based on religious liberty is acceptable under civil law, not whether it makes good business sense. Something could be good for business but bad for liberty (and vice versa.) Arguing that America’s business community does not discriminate (whether true or not) is simply irrelevant to whether religious liberty rights should be upheld.
In fact, even if Cook is right, and businesses that choose to discriminate suffer, then that shouldn’t bother Cook or his fellow business leaders. It would only cause those companies to fail faster, opening up the market for Apple and other “non-discriminatory” businesses to generate more profits. To use an example, if Cook is right, then florists who are willing to provide flowers for any event should be happy when other florists refuse to serve “same-sex wedding” ceremonies. That only means more business for them.
Finally, in what is perhaps the most confused part of Cook’s article, he states:
“I have great reverence for religious freedom. As a child, I was baptized in a Baptist church, and faith has always been an important part of my life. I was never taught, nor do I believe, that religion should be used as an excuse to discriminate.”
Notice how Cook conflates “religious freedom” with religion in general. He claims to have great reverence for religious freedom but it’s not clear he even understands what religious freedom entails, a worrisome fact since his entire op-ed concerns the topic.
In defense of his “reverence” for religious freedom, Cook states that he was raised in a church and that faith has been important to him. While perhaps true, these claims are irrelevant to the question of religious freedom. Many people who safeguard religious liberty are atheist or non-religious, and, on the other hand, many people who oppose religious liberty laws are quite religious by practice.
To put it simply, going to church is not the same as promoting religious liberty.
As Cook nears the end of his article, he pivots into a dubious comparison:
“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.”
Cook doesn’t highlight specific examples, but his insinuation is clear: people who support religious liberty are like racists who promoted Jim Crow laws. Again, if this were true, Cook would have to condemn all of Congress and then-president Bill Clinton as racists, since they signed into law essentially the same bill as that signed in Indiana. I doubt he would be comfortable doing this.
Notice also how throughout the op-ed, Cook provides no real reasons why religious liberty laws and Jim Crow laws are analogous. He simply tries to smear the former by associating it with the latter. This is a good rhetorical tactic, because it rouses our moral temper, but it’s an otherwise empty argument.
“Men and women have fought and died fighting to protect our country’s founding principles of freedom and equality. This isn’t a political issue. It isn’t a religious issue. This is about how we treat each other as human beings. Opposing discrimination takes courage. With the lives and dignity of so many people at stake, it’s time for all of us to be courageous.”
Indeed, men and women have died to protect our founding principles, and those principles include the First Amendment, which protects religious freedom.
And indeed, since this controversy is about religious liberty, it is, by definition, a political and religious issue.
Cook is right that we must all be courageous. But courage without reason is recklessness. The lives and dignity of so many people are on the line, which is why it’s time for all of us not just to be courageous, but to think clearly and reasonably.
Cook’s op-ed is, at its core, unreasonable. I don’t mean that pejoratively; I mean it literally. Cook provides no good reasons to reject religious liberty laws, and little evidence that he even understands the issue.
Americans (and Apple supporters) deserve better.
(For another take, read Ryan Anderson’s excellent article, “Apple CEO Tim Cook Is Wrong About Indiana Religious Freedom Law”.)