Protecting Religious Freedom Without Invidious Discrimination
A variety of states are contemplating statutes that would affirmatively allow various kinds of discrimination by private actors against gay couples. The asserted concern is that same-sex marriage violates deep and sincere religious beliefs of many people, and that, in the absence of a specific immunity carved out in law, private individuals may be required to provide services that, to the provider, feel tantamount to an endorsement of such a marital state.
Assuming, for the sake of argument, that such efforts are sincere (they may or may not be, but I think that’s the right assumption to start with), the problem of course is that an explicit carve-out in law allowing discrimination on the basis of sexual orientation is prima facie invidious discrimination. It’s worth pointing out that the Supreme Court has already struck down laws manifesting such discrimination for failing the rational basis level of scrutiny – the lowest level of scrutiny. I’m skeptical of their reasoning, which appears to me more to suggest a heightened level of scrutiny is being applied, comparable to sex or race-related cases, but so it’s not terribly material why exactly the Court feels such laws are illegitimate; they clearly do.
And, whether or not you endorse the entire edifice of equal protection jurisprudence, it’s a bit of a hard lift, I think, to argue that there is nothing wrong with singling out a class of people as being ok to discriminate against. It would be a much easier lift to provide religious protections without identifying a uniquely “unprotected” class.
So, for example, if the issue is being coerced to provide services for marriage ceremonies that violate one’s religious beliefs, why not write a law specifying that notwithstanding any anti-discrimination statutes, nobody can be required to provide services for a wedding ceremony which violates their religious beliefs? Would that allow florists to discriminate against gay weddings? Yes. It would also allow florists to refuse to provide flowers for a Catholic who was getting re-married after a divorce, or for a Jew marrying a non-Jew, or for an Indian wedding that involved pagan idolatry, or for a polyamorous ceremony taking place on a cruise ship. If providing flowers for a wedding amounts to endorsement, then I can see very good reasons for religious believers of various stripes to object to one or more of the weddings described. (Or maybe not – maybe there is only one group anyone cares about actually discriminating against; notwithstanding what may or may not happen, the law at least would be neutral.) If the issue is protecting florists from feeling they are endorsing weddings that they believe are wrong, then the statute should address that issue generally, and need make no specific reference to gay couples.
Some of these laws are being written even more broadly, in that they cover not just services for a wedding ceremony but any services to gay couples. So, a hotel owner might, under such statutes, be able to refuse a room to two men who are married, even though he would not refuse a room to a man and a woman who are married, or (possibly) even a man and woman who were unmarried. Ditto for restauranteurs, etc. Here, again, it’s unclear why gay couples should be singled out uniquely for being the object of discrimination.
If the issue is that the guest professes something that is religiously objectionable to the proprietor, and promotes it publicly by participating in a ceremony such as marriage (or simply by letting people know he is gay), then presumably there are other such professions that might be made that are equally deserving of protection. For example, I know many people who find proselytism religiously objectionable. Why shouldn’t a proprietor be allow to discriminate against individuals who engage in such activity? What is the difference between endorsing the legitimacy of a gay union and endorsing the legitimacy of Islam, or Mormonism, or even mainstream Christianity? If merely providing a room to a married gay couple counts as endorsing their marriage, then surely providing rooms to a Mormon mission counts as endorsing that mission. Right? A properly worded statute not invidiously aimed at stigmatizing gay couples by singling them out would need to allow for general discrimination against any individual whose declared conduct or identity poses a religious objection to the proprietor or service-provider.
This is roughly what Arizona did. Actually, Arizona went considerably further, making an asserted “substantive burden” on an individual’s religious freedom a legitimate defense against individual violations of any state law, regardless of whether it is generally and neutrally applicable. If I understand the law correctly, not only would it legalize a wide variety of types of private discrimination, not limited to my examples above, but would do much more. It would legalize polygamy and marriage with underage girls (both sanctioned by so-called fundamentalist Mormon groups). It would permit public school teachers to explicitly proselytize to their students (I’m quite certain you could find fringe Protestant groups or individuals who hold that such witnessing is mandatory at all times). I’m not sure, but I think if you founded a Church of Nude Defecation, and declared that God told you the Arizona state legislature was your temple, the state of Arizona could not expel you for practicing your faith in the place that God had designated.
Even if the law isn’t quite as nuts as that, it’s pretty nuts. Most people don’t actually want to repeal the process of balancing different interests by making one principle an absolute trump card. They just want to adjust the balance slightly when they don’t like a particular result. Which is completely fine – continual readjustment is exactly what that balancing act requires.
And this is a balancing act. The principle of non-discrimination is plainly in conflict with the principle that people should be free to deal with whomever they damn well please, and not with anybody else. Both principles are weighty and valuable. If the law required you to provide flowers for your ex-wife’s wedding to the guy who used to be your best friend, you would obviously suffer an injury. Well, somebody morally appalled by gay marriage who is coerced, by the law, into providing flowers for a gay wedding (or else exit the florist business) has also suffered a real injury. But so has somebody who is disgusted by black people eating alongside white people when he is prohibited by law from running his restaurant according to the rules of racial purity to which he ascribes. The question is whether there is any remedy for that injury that doesn’t cause a much greater injury to others.
There is nothing wrong with adjusting the balance of equality-versus-freedom. Of course, as the Arizona law suggests, doing so may get you a lot more than you bargained for. But adjusting the balance only to permit discrimination against married gay couples transparently singles out those couples as uniquely unprotected. It’s practically a textbook example of invidious discrimination in law. If you want to adjust the balance, you have to adjust the balance generally. You don’t just make an exception for people you don’t like.