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Letting the Market Promote Pluralism

Freedom of conscience bills aren't "anti-gay segregation," but they're not a good idea either.

A college roommate would not order pizza from Domino’s. Why? Because the chain’s founder and then-owner donated money to pro-life groups and other socially conservative causes with which he disagreed. Back then, he ate Papa John’s. Today he probably wouldn’t because of its owner’s stance against Obamacare.

Should businesses similarly be able to withhold their money and services from causes with which the owners disagree? That’s one of many issues that was raised first by Obamacare’s contraception coverage mandate and then by a controversial Kansas bill that sought to protect businesses and organizations that did not want to recognize or participate in same-sex marriage ceremonies.

That bill has effectively been killed, but not before being labeled “anti-gay segregation” and seeing similar legislation floated in other states. I’m not sure such bills are a good idea, but a strong presumption in favor of religious freedom is not analogous to segregation.

The Religious Freedom Restoration Act of 1993 seems to have this much right. Freedom of conscience isn’t absolute. But the government can only override religious conscience to serve a compelling interest and then must pursue that interest using the least coercive means available.

So even if there is a compelling public interest in ensuring access to contraception, if contraception can be made affordable and readily available through means other than forcing the Little Sisters of the Poor to pay for contraception or contraceptive coverage, than those other less coercive means should be employed.

The same logic would seem to apply to participation in same-sex marriage services. If we can allow conscientious objectors to refuse to fight in wars, we can surely make some allowance for people to who don’t want to bake cakes, provide floral arrangements, or take photos at a particular wedding. A case could also be made that same-sex couples should prefer to send their business to vendors who share their values.

A sense of proportion matters here. It’s unlikely that we are talking about very many businesses, and even fewer large companies. In some parts of the country, at least, vendors who take this stand risk being picketed out of existence. A few news stories about a same-sex couple who was refused service in their town could easily attract a flood of free wedding cakes, floral arrangements, and photography offers from other more supportive businesses.

It is fanciful to imagine we will see a proliferation of straights-only lunch counters in 2014 in the absence of government coercion. Chick-fil-A may donate money to groups that oppose same-sex marriage, but they do not refuse service to gay customers. Most Christians will probably conclude they can bake cakes without defying Scripture or tradition on sexual morality.

The Chick-fil-A and “Duck Dynasty” affairs are just two examples of how public opinion can be rallied against franchises that are seen as unfriendly to gays. They also show the limits of a coercive strategy: they are the only more or less successful backlashes the gay rights movement has faced in the decade since opposition to same-sex marriage began to erode.

Should gay business owners be forced to provide services to Chick-fil-A, Phil Robertson or organizations that lobby against same-sex marriage? Should gay advertising executives be compelled to write ads in defense of the Defense of Marriage Act? Freedom of conscience applies here too. So does the market’s ability to punish irrational discrimination and a business’s willingness to turn away paying customers.

If a Muslim fundamentalist car dealer refused to sell automobiles to women on religious grounds, even if it was not against the law, he would almost certainly go out of business. (If he didn’t, then immigration laws might need to be revised rather than the First Amendment.)

This is where the Jim Crow analogy, used by Kirsten Powers and others, fails. People often argue for or against the civil-rights laws of the 1960s on the basis of abstract principles, pitting generic equality against generic freedom of association, but they were in fact a reaction to a very specific set of circumstances.

Jim Crow was a system of extensive discrimination, not isolated incidents. It relied on the state enforcement of laws requiring racial separation and the non-enforcement of laws banning private acts of violence when the victims were black. It denied blacks’ constitutional rights and was rooted in state government coercion and social customs so powerful they were largely impervious to market forces. The federal government had repeatedly attempted to remedy these problems through more modest measures.

It is theoretically possible that allowing a New Mexico photographer to refrain from taking pictures at a same-sex wedding ceremony—or more plausibly, allowing the Kansas legislature to enact the previously mentioned bill—would create conditions like this for gays. But it is not very likely.

For the government to officially privilege sexual identity above religious identity will create conflicts between gay rights laws and religious freedom protections that supporters of the former have consistently denied were possible. In a country with a limited federal government and a healthy respect for pluralism, such conflicts might be avoided—if gay activists and conservative Christians would both stop trying to stigmatize each other.

W. James Antle III is editor of the Daily Caller News Foundation and author of Devouring Freedom: Can Big Government Ever Be Stopped?