The Empirical Irony of the Conflict Between Antidiscrimination and Religious Freedom

I like markets. I think that on the whole commerce tends to make us better people, that trade is one of the best mechanisms of cooperation in a pluralistic society, and that participation in the market will generally increase our material well-being. Hence, insuring that everyone has the ability to participate in the market is important. Generally, the best way to insure such participation is to create institutions that keep markets competitive and remove barriers to entry. Contract and the search for new customers will do the rest.

I am not, however, a principled libertarian or anarcho-capitalist or the like. At times history, habits, and other institutions will result in a market from which some people are systematically excluded. I don’t think that this is an inevitable result of markets, and I think that contract and competition do a better job of insuring access than most folks (perhaps especially law professors) recognize. Still, no human institution or set of practices is perfect, and this is definitely true of commerce. When such systematic exclusion occurs, I think that antidiscrimination laws are justified to insure access. In a pluralistic society, however, I don’t think that the case for such laws is particularly strong if we justify them on grounds other than access. Living in a world in which others engage in acts that are an affront to one’s dignity or manifest unsavory thoughts strikes me as part and parcel of the liberal ideal, and I don’t think that such things should be made into legal wrongs, except in extreme cases like IIED torts.

Given my framework, I think that there is a deep irony in the current debates over religious exemptions and antidiscrimination laws covering homosexuality. First, I think that such antidiscrimination laws are justified where there are threats to the ability of gay citizens to participate fully and meaningfully in the market. The strength of that justification, however, is empirically contingent in my book. In places where there is widespread animosity towards homosexuality, the case for such laws is fairly strong. In places where animosity towards homosexuality is confined to a small subset of the population, the case for antidiscrimination laws is weaker.

I also think that antidiscrimination laws can burden religious exercise substantially. I actually don’t think that the wedding cake baker or the wedding photography facts are particularly hard cases. There are lots of people who believe that the celebration of gay marriage is wrong, sinful, and blasphemous. It is pretty understandable that they would regard participating in such a wedding as sinful. One may disagree with their moral or theological position (I do), but I don’t think that it is insincere, pretextual, or that the burden placed upon them is trivial. Hence, regardless of the doctrinal rout by which one gets there – RFRA, state constitutions, statutory carve outs, what have you – I think that exemptions in such cases make sense. Where granting such exemptions doesn’t meaningfully threaten access to the market, fining the baker or the photographer strikes me as needlessly punitive and vindictive.

However, I think that the case for religious exemptions from antidiscrimination laws is also empirically contingent. It is contingent in two ways. First, given the religious beliefs that command a following in society, are there a lot of belief systems that are going to label providing services to gay customers or employing gay workers as impermissibly sinful? Second, are there a lot of believers in these creeds? I think that there is a lot of mindless animosity towards homosexuality and some of that mindless animosity drives religious beliefs. There is less of this, however, than many secular liberals assume. I don’t think, for example, that most conservative religious believers think that serving gay customers or having gay employees is sinful, even if they believe that homosexuality is sinful. Rather, I think that the desire for exemptions is largely about marriages, weddings, and perhaps family formation (IVF or adoption). And even there, I don’t think that there are very many people – including conservative religious believers – that would actually use such exemptions.

I may be wrong about both of those conclusions, and in some places I am pretty confident that I am wrong. And this leads to the irony. In places where anti-discrimination laws are most justified we are the least likely to get them through the political process. Those are also the places where granting broad religious exemptions is most likely going to undermine antidiscrimination laws if they are enacted. On the other hand, those places where there is the strongest support for antidiscrimination laws are also the places where there is the least need for such laws and where the case against granting religious exemptions is the weakest. Yet these are also the places where we are least likely to see religious exemptions from those laws.

All of this makes me pretty depressed. The incentives, it seems to me, is for the politics to become the most toxic and destructive for both sides depending on the region. In crude terms, I think that in blue states conservative religious objectors will likely be dealt with harshly and punitively. In red states, I think that there is a real danger that in some places homosexuals will lack the ability to fully and meaningfully participate in the market.

There are, however, two things that give me hope. The first and greatest source of hope is commerce itself. I think that interactions and incentives in the market are likely to cool animosity and open opportunities. The fact that most people don’t care a great deal about these debates and would rather get on with making a living is deeply heartening. The other source of optimism for me is Utah, where the state recently expanded antidiscrimination protection for LGBT folks, while carving out surprisingly narrow exemptions for religion. Utah is not as encouraging as the market itself, however, because the law punted on most of the hardest issues. Still it suggests that the rhetorical and legal tailspin that seems most likely to me in ideologically homogenous spaces isn’t inevitable.

The (Anticipated) Depth of Progressive Skepticism Toward Religious Freedom

Nate writes: “I think, however, it is also possible that once it becomes clear that priorities on gay marriage and antidiscrimination laws are not threatened that progressive hostility to religious freedom will wane. I don’t know if this is the case, but it seems possible that really there is nothing deeper going on here than gay marriage and antidiscrimination laws.”

I see things a bit differently. But at least part of the difference may be the result of definitional uncertainties. I’m not sure what Nate means to include within the compass of antidiscrimination laws. I’m more certain of the sorts of harms to personal dignity that antidiscrimination scholars do see at the heart of those laws. And I’m even more certain of what Nate rightly describes as the ambitions of Justice Kennedy, especially in the jurisprudence of dignity that has animated his opinions over the last 25 years or so (from substantive due process all the way to state sovereign immunity). As I put it in this essay (footnotes omitted):

The issue of symbolic or “dignitarian” harm is particularly problematic. If perceived affronts or injuries to one’s personal dignity constitute a “significant” or “material” harm to a third party, then it is difficult to see how many permissive religious accommodations could survive. Laws reflect morally and politically charged messages. Whether the subject is education, public health, drugs, sexuality, commerce, prisons, insurance, the environment, or the military, laws embody particular moral convictions and impose, even if tacitly, particular moral views on those subject to them. Religious accommodations are decisions by the government to permit limited dissent from these moral messages. In accommodating religious objectors, the state might be perceived not merely to authorize limited disagreement with the law, but to countenance disrespect for the moral views underlying it or even for the moral dignity of those who are its intended beneficiaries. But if the state comes to have powerful legal interests in remedying symbolic or dignitarian offenses, then that may well render many permissive religious accommodations illegal….

A leading antidiscrimination scholar has likewise noted that the prevention of harms to “dignity” and the stigmatization of discrimination are two of the three “canonical” functions of antidiscrimination laws generally. Religious accommodations, it is said, have the power to “stigmatize and demean” those who disagree with the religious claimant’s dissenting position on these matters, even when such objections are “not stated explicitly.” The feeling of being “judged” by those who raise religious objections to certain conduct, and the indignity of knowing that the state has countenanced that judgment by permitting a religious accommodation, may themselves be independent harms….

The government’s vindication of third-party dignitary harms has the potential to destroy religious accommodation. The core function of religious accommodations, again, is to authorize limited, but sometimes socially powerful and politically controversial, dissent from the law’s moral messages. There is an important difference between dissent from a law’s moral message and the denigration or vilification of the law’s intended beneficiaries. “Hate the sin, love the sinner,” is the Christian aphorism sometimes used to express this distinction, but it has proved elusive and generally unpersuasive (or worse) to those whose dignity is felt to be injured by claims for religious accommodations. A government that assumes the power to confer dignity on individuals may also subject itself to legal claims by individuals whose dignity has been harmed as the deprivation of an entitlement. And there is reason to worry that the legal conferral of dignity is expanding, as the Supreme Court increasingly justifies its constitutional jurisprudence based on ever-thickening concepts of human dignity. Lurking just beneath these dignitarian clashes are bottomless mysteries concerning the foundations of human identity—religion or sex? higher duty or worldly satisfaction?—that, one may anxiously hope, neither the Supreme Court nor any other government institution will ever assume the power to resolve.

Perhaps in the end the issue is not so much “progressive skepticism” toward religious freedom as “progressive aspirations” for antidiscrimination law–not the winning back of progressives to the cause of religious liberty (or even to its toleration), but the damage to religious liberty that the ever-expanding scope of antidiscrimination law portends.

Marlin, “Christian Persecutions in the Middle East”

This June, St. Augustine’s Press will release “Christian Persecutions in the Middle East: A 21st Century Tragedy” by George J. Marlin (Aid to the Church in Need-USA).  The publisher’s description follows:

Christian PersecutionsEven before ISIS launched its ultra-violent campaign targeting Iraqi Christians in the summer of 2014, Pope Francis proclaimed that the current wave of Christian persecution in the Middle East is worse than the suffering inflicted on believers in the centuries of the early Church. Since the Arab Spring and the start of the civil war in Syria in 2011, which have thrown the region into utter chaos, Muslim extremists have killed thousands of Christians every year, while destroying and desecrating countless churches. Christian communities in Syria, Iraq, and Egypt have been hardest hit.

In his new book, author and political commentator George J. Marlin, chairman of Aid to the Church in Need-USA – an agency under the guidance of the Pope that supports the persecuted and suffering Church around the world – describes the sharp rise in Christian persecution in the Middle East. After brief narratives on the rise of Christianity, Islam, and terrorism in the Middle East, Marlin documents country by country, acts of twenty-first century Christian persecution that is nearing a bloody climax that could produce the unthinkable: a Middle East without Christians and the destruction of an ancient patrimony that has been a vital link to the very birth of Christianity.

Kidd & Hankins, “Baptists in America”

This May, Oxford University Press will release “Baptists in America” by Thomas S. Kidd (Baylor University) and Barry Hankins (Baylor University).  The publisher’s description follows:

Baptists in AmericaThe Puritans called Baptists “the troublers of churches in all places” and hounded them out of Massachusetts Bay Colony. Four hundred years later, Baptists are the second-largest religious group in America, and their influence matches their numbers. They have built strong institutions, from megachurches to publishing houses to charities to mission organizations, and have firmly established themselves in the mainstream of American culture. Yet the historical legacy of outsider status lingers, and the inherently fractured nature of their faith makes Baptists ever wary of threats from within as well as without.

In Baptists in America, Thomas S. Kidd and Barry Hankins explore the long-running tensions between church, state, and culture that Baptists have shaped and navigated. Despite the moment of unity that their early persecution provided, their history has been marked by internal battles and schisms that were microcosms of national events, from the conflict over slavery that divided North from South to the conservative revolution of the 1970s and 80s. Baptists have made an indelible impact on American religious and cultural history, from their early insistence that America should have no established church to their place in the modern-day culture wars, where they frequently advocate greater religious involvement in politics. Yet the more mainstream they have become, the more they have been pressured to conform to the mainstream, a paradox that defines–and is essential to understanding–the Baptist experience in America.

Kidd and Hankins, both practicing Baptists, weave the threads of Baptist history alongside those of American history. Baptists in America is a remarkable story of how one religious denomination was transformed from persecuted minority into a leading actor on the national stage, with profound implications for American society and culture.