The federal Restoration of Freedom Act was an unfortunate response to a Supreme Court decision. Back when there was more wisdom in the practice of law, meaning back when the profession had more humility, there developed a sage doctrine: Courts should resist ordering “specific performance” when a personal service contract is breached. The idea is that when a provider, especially one of small scale, breaks an express or implied agreement to provide a service to a consumer, it is not sensible for a judge to direct that the agreement be carried out as written.
The doctrine leapt to mind during this week of manufactured controversy over the state of Indiana’s near-verbatim replication of the federal Religious Freedom Restoration Act (RFRA). The “no specific performance” doctrine recognizes that, while our law is capable of many things, it cannot force people to get along. To try to do so, especially with people embroiled in a bitter disagreement, would more likely lead to additional strife, not calm resolution. What’s more, there are other, better ways to make a wronged party whole. In most instances, for example, a court can order money damages. That leads us to another quaint bit of prudence: