Friday, March 27, 2015

Does Religious Freedom Entail the Freedom to Discriminate?

Should the conservative Christian baker be allowed to refuse to bake a cake for a same-sex wedding? Should the government pass new laws explicitly aimed at preserving her freedom to discriminate in this way?

As someone who believes in equality under the law, I will argue all day that the state is obligated to make civil marriage and the legal benefits that go with it available to same-sex couples (although I won't make that case here).

Because of this, I don't believe that agents of the state, acting as agents of the state, have a right to discriminate against same-sex couples even if their religion tells them to. They have a right to quit their job if the job duties conflict with their religious beliefs. But it seems to be a violation of church-state separation for the government to discriminate against same-sex couples based on sectarian religious beliefs. And if the state has no right to discriminate against same-sex couples, then neither do its agents when they act on behalf of the state.

But the conservative Christian baker is not an agent of the state. She's a private individual, free to be guided by sectarian religious convictions that can't and shouldn't dictate state practices. So, should she be free to discriminate? Should the state enact laws explicitly securing her that right?

As a Christian who believes in a sacred obligation to love our neighbors as ourselves, I will argue all day that deliberate discrimination against same-sex couples represents a serious failure to live up to the demands of the Christian love ethic (although I won't make that case here).

Because of this, I will argue that the Christian baker is confused about what her own faith requires. I will argue that were she true to the deepest meaning of Christian ethics, she would not discriminate against her same-sex neighbors in the way that she feels compelled to do. I will argue that, in the name of Christian conscience, she is living out teachings born of bigotry rather than the spirit of love, and so in the name of Christian conscience is doing the opposite of what Christ demands.

As a Christian, I think her decision to discriminate is deeply immoral. I think Jesus would weep. But the question isn't whether Jesus' love ethic permits her--a purported follower of Jesus--to do this. The question is whether the state should permit her to do it. More significantly, the question is whether the state should enact laws specifically designed to protect her freedom to do it.

As someone who believes the state should protect religious freedom and our right to act on religious conscience, I think the state has a duty--constrained only by other duties of comparable weight--to protect the freedom of individuals, acting as private citizens, to refuse to participate in activities that their religion tells them is wrong.

This is the place where laws like Indiana's new "Religious Freedom Restoration Act" get what ethical traction they have. These laws really are about the freedom to discriminate. We should be clear about that. But they are about freedom to discriminate in cases where such discrimination is mandated by one's religious convictions (however dubious they might be), and where one is not acting as an agent of the state.

It seems to me clear that a liberal democracy should protect the freedom to act on individual conscience--at least in the absence of some compelling state interest that justifies restricting it. If we are going to criticize these new "religious freedom" laws, we need to do so in a way that takes freedom of religious conscience seriously. And we can't base our criticisms on why the state and its agents shouldn't discriminate based on religious beliefs, or on why the religions at issue don't really call for such discrimination (even if these are legitimate arguments in their own right).

Instead, criticisms of such laws need to focus primarily on how protection of religious conscience is constrained by the broader duties of the state--and, I think, on the difference between business life and personal life, and the greater regulatory oversight that the state might legitimately have with respect to the former.

Let me begin with this second issue, because it lays the groundwork for thinking about the first.

If Mary, a conservative Christian and also a homemaker who bakes and decorates cakes as a hobby, is approached by her gay neighbors and asked to bake their wedding cake, there is no question in my mind that she should retain the right to refuse. Her right to do so is not under threat. As a private citizen, she shouldn't be compelled to act against her conscience--even if she can and should be challenged to rethink the substance of that conscience.

Yes, Mary, you have a right to say no based on your "Christian beliefs." No, Mary, I don't think Christ approves. Yes. Mary, I think you should be ashamed of yourself for refusing. If your neighbors shun you based on their conscience, good for them. But the choice is yours.

But now suppose that Mary has opened a bakery business. That business is part of the public sphere. The market system is a social strategy for maximizing the productivity of labor by allowing for the kind of specialization that increases competence but also makes people interdependent. To really do well at certain jobs, people need to specialize. But as soon as they specialize, they give up their independence. If you're a blacksmith, you can't eat the products of your labors. You become dependent on those who specialize in growing the food, just as they become dependent on you in various ways. When people agree to give up independence for the advantages that this sort of interdependence makes possible, a market system offers one particularly efficient way to exchange goods so that everyone has access to what they need.

Businesses are thus part of a complex set of social agreements that people have entered into for the sake of mutual benefit--a kind of social contract. And this means that when you enter the public sphere by opening a business, you are constrained by the social agreements that define that public sphere. In a free market, those constraints aren't arduous, but they aren't nonexistent, either.

One basic premise of such a business system is that people who choose to specialize give something up (the independence of the homesteader) and make a distinct contribution to the general welfare (through a specialized job) with the expectation that they will thereby become part of a system of interdependence in which their diverse needs can be met through purchases in the market. I contribute what I am good at, get paid for it, and can use that money to buy the things I want and need from those who are contributing what they are good at.

But what happens if I do this, and then find out that one of the things I need is unavailable to me--because others who have entered into this system of interdependence refuse to give it to me, or make it available only under certain arduous conditions? I have the money, but they won't sell to me (although they happily sell to others)--because of something to do with their private religious beliefs.

While it is clear that Mary should be free to refuse service to anyone in her role as a private citizen who bakes cakes for fun, it is far less clear that in her role as a member of this system of interdependence, she can refuse to serve anyone at any time for any reason. There might well be reasons that could justify her refusal--but her refusal is the sort of thing that stands in need of justification, given what might be called the social contract of the marketplace.

The question, then, is what is sufficient to justify her refusal. More precisely, is religious conscience sufficient to justify it?

Here's the problem. Suppose members of a minority group have given up the independence of the homesteader for the advantages of being part of the interdependent market system. They can, if you will, lay claim to the rights that come with participating in the social contract of the marketplace. But suppose their ability to exercise these rights--to access the advantages that come with participation in this system--would be significantly jeopardized were the majority free to discriminate based on their religious conscience. I'm envisioning here a religion whose values endorse a pattern of discriminatory behavior.

In that case, the business owner's presumptive right to act on religious conscience comes into conflict with the minority group's rights arising out of the social contract of the marketplace. And so the state, as an agent of the people collectively, may have a justification for precluding the discriminatory practices. The minority group's rights to equitable access to the goods of the market clash with the individual's claim on being free to act on a conscience that tells them to discriminate.

Do sexual minorities face this kind of situation? Would they be likely to face it in at least some communities were the Religious Freedom Restoration Act to be enforced? If so, the Religious Freedom Restoration Act would amount to the state taking a decisive stand against the right to equitable access to the goods of the marketplace in favor of the right to discriminate based on religious conscience. The state would be declaring that certain beneficiaries of a collective social agreement are allowed to behave in ways that deprive others of the promised benefits of that social agreement. And that, I think, would be a violation of the state's overall duties relative to its proper role in society.

This is the framework within which I think we need to think about policies like the Religious Freedom Restoration Act. What does the act allow in terms of discriminatory behavior? Is there a danger, based on what it allows, that forms of discrimination will become sufficiently common to risk depriving some people of equitable access to the goods of the market--goods they have a presumptive right to expect based on their good faith participation in the system?

I think we could all agree (couldn't we?) that IF the answer to this last question is yes, then laws like the RFRA are unjust. If so, then we should focus our energies on deciding whether the answer is yes.

12 comments:

  1. One basic premise of such a business system is that people who choose to specialize give something up (the independence of the homesteader) and make a distinct contribution to the general welfare (through a specialized job) with the expectation that they will thereby become part of a system of interdependence in which their diverse needs can be met through purchases in the market.

    Is there any evidence that people who open businesses actually adopt this premise? Conceivably, Mary could be independent and run a business. She is not giving up independence and she does not expect the market to meet her needs. But even if we grant this premise, our expectations are frequently dashed. Your business may not contribute to the general welfare and your needs may not be met through the market.

    But what happens if I do this, and then find out that one of the things I need is unavailable to me--because others who have entered into this system of interdependence refuse to give it to me, or make it available only under certain arduous conditions? I have the money, but they won't sell to me (although they happily sell to others)--because of something to do with their private religious beliefs.

    You've made a poor decision and are reaping the consequences.

    While it is clear that Mary should be free to refuse service to anyone in her role as a private citizen who bakes cakes for fun, it is far less clear that in her role as a member of this system of interdependence, she can refuse to serve anyone at any time for any reason.

    It seems abundantly clear to me that businesses make such choices all the time. They choose to do business with one party and refuse to do business with another party for a myriad of reasons.

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    1. I'd encourage you to do a bit of research into the concept of a social contract, since you don't appear to have a clear handle on it. A comment in a blog post is probably not the best place to attempt to explain the concept, but perhaps I will focus a post on it at a later date.

      The three things I'd quickly mention here are that (a) one's participation in a social contract is typically implicit rather than explicit, such that "actually adopting the premise" that one is entering into a social contract is not necessary in order to be part of one; (b) that people breach an implicit contract "all the time" (without legal consequence) does not entail that there does not exist a contract which generates moral expectations that may be violated; and (c) when I invoke the idea of a social contract here, I am invoking a conceptual framework for understanding the roots of certain obligations of justice, which may not be reflected in the actual laws of the state but which, rather, provide a basis for critiquing and assessing the moral adequacy of those laws.

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  2. There might well be reasons that could justify her refusal--but her refusal is the sort of thing that stands in need of justification, given what might be called the social contract of the marketplace.

    As noted above, you need to demonstrate that she entered a social contract. Moreover, she has the right to use her property as she sees fit, to say what she wants to say, to associate with whom she wants to associate, and to practice whatever religion she wants. The person who wants to violate all of these rights (and I may be forgetting others) is the one who needs to provide the justification. Freedom is the default position of a free society.

    The state would be declaring that certain beneficiaries of a collective social agreement are allowed to behave in ways that deprive others of the promised benefits of that social agreement. And that, I think, would be a violation of the state's overall duties relative to its proper role in society.

    You're assuming the business benefits from the marketplace when, in fact, it may fail. It could even be punished by the marketplace. You're also assuming that the marketplace makes promises. It doesn't. Producers and consumers can strike out. And, since nearly all of us buy and sell in some capacity, your line of reasoning suggests the government can justifiably violate our rights whenever it wants. This is a recipe for totalitarianism.

    Is there a danger, based on what it allows, that forms of discrimination will become sufficiently common to risk depriving some people of equitable access to the goods of the market--goods they have a presumptive right to expect based on their good faith participation in the system? I think we could all agree (couldn't we?) that IF the answer to this last question is yes, then laws like the RFRA are unjust.

    Not at all. Suppose I'm convinced that, due to this law, gay couples will never have a professionally made wedding cake. That is not even close to sufficient to violate the rights of the business I mentioned above. I think you need to show that the group in question will face serious physical harm or death to justify a non-discrimination law. Even then, it should be very specific (e.g., no discrimination in permanent housing and groceries, but discrimination is legal elsewhere). You seem far too willing to give up our freedoms.

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    1. The marketplace is not a phenomenon of nature like a tree or a river. It is a social construct created by human cooperation. Humans cooperate for mutual benefit. In the case of the market, the benefit is a set of opportunities. Not every opportunity pans out. If someone is systematically deprived of the opportunities that the market creates, or for some reason is set up to fail (such that the opportunities aren't real for them), then they aren't part of the social contract of the market. In that case, they accrue no obligations stemming from the social contract when they seek to take advantage of the opportunities that the market creates--but only because the social arrangement has ensured that these opportunities aren't real for them. If the opportunities are real, then failure does not eliminate the obligations that come from taking part in the cooperative social arrangement.

      This does not entail that the government can justifiably violate our rights whenever it wants. The invocation of totalitarianism here is a fallacious appeal to fear. In saying that equitable access to the marketplace and what it offers is a right that those who contribute to the market in good faith can lay claim to, what at best follows is that the state may justifiably regulate the market as necessary to secure those rights, not that the government can justifiably violate our rights whenever it wants. That kind of hyperbolic and unsound thinking will generate cheers from those who already agree with you are aren't inclined to think clearly, but will not get much traction on a philosophical blog.

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  3. Hi, Eric-

    Congratulations on an outstanding post. The "social contract of the marketplace" is a significant idea. The exemptions that have been handed to pharmacists to deny people service for individual religious convictions are particularly abhorrent in this perspective. In simple, terms, such restrictions as "no shirt no shoes no service" are OK, being very generally defensible in the wider social contract/context. But things like not serving a particular racial group, or sexual group, based on a parochial belief system... are not.

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  4. Hi Eric,

    Very interesting post. However there's something I don't quite see here: how would Christian beliefs entail a requirement to discriminate?

    May baking a cake for gay neighbours is not, as far as I can see, doing anything against Christian beliefs. She's just baking a cake. She's not participating in any activity prohibited by her faith - unless her faith prohibits interactions with people she disagrees with?

    Perhaps one could argue that by baking the cake Mary is participating in the wedding. But surely this is stretching the idea to an extreme. For example, the same would apply to those providing the ingredients of the cake. Would someone selling flour be allowed to request it's not used to bake a wedding cake for gays? This quickly becomes absurd.

    Perhaps you can clarify this.

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    1. JP,

      I'm sympathetic to the point you're making here, and actually made some remarks about it elsewhere this morning (addressing the concern that prohibiting bakers from discriminating with respect to whose wedding they provide a cake for may open the door to prohibiting pastors from discriminating with respect to which weddings they officiate). Here's part of what I said there (the rest of what I said largely summarizes the substance of this post):

      The business that provides pizza to the gay couple is directly contributing to the eating of pizza. They may be indirectly contributing to the celebrating of an event. The event being celebrated might be the closing of a business deal that magnifies the emiseration of poor laborers, or the joining of a gay couple or serial divorcées. But none of these activities that might be viewed as objectionable by some Christians require the pizza in order to be performed. In that sense, there is a fundamental difference between cases like these and the case of the Christian lawyer who brokers the business deal or the pastor who weds the couple. In such cases the action is directly facilitating the objectionable behavior in much the way that providing a pizza is directly facilitating pizza-eating.

      There may still be concerns about conscience in cases like the pizza one, but they are far more attenuated. When a strong claim of conscience--a concern about directly contributing to an objectionable activity--conflicts with a right to equitable access to the goods of the market (potentially threatened by discriminatory behavior motivated by the claim of conscience), the conscientious objector has a substantially stronger claim than when a weak claim of conscience is in play.

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    2. In other words, I think conscience claims can be more or less attenuated, depending on how directly or indirectly the individual is contributing to the activity which their conscience calls them not to participate in. The person who officiates the gay wedding is directly participating. The person who sells the flour used to bake the cake used to celebrate the wedding is participating in such a remote way that a conscientious objector claim is very hard to support. The person who bakes he cake falls somewhere in between. So it's a matter of degrees, with stronger and weaker claims of conscience. A weak claim of conscience might be sufficient to justify an activity when there are no competing rights at stake. But when others' rights are at stake, one may face a presumptive duty to behave in a given way that a weak claim of conscience is insufficient to override. The more pressing the presumptive duty, the stronger the claim of conscience has to be.

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  5. Hi Eric,

    Great post. I agree. I'm wondering though if you might write a post or give us your thoughts regarding this Atlantic article: http://www.theatlantic.com/politics/archive/2015/04/should-businesses-that-quietly-oppose-gay-marriage-be-destroyed/389489/

    It doesn't go directly to your post, but it is certainly related.

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    1. Darrell,

      It's a good article. I certainly agree that it's unloving to threaten to burn down a business that has declared a hypothetical intention to refuse to serve at a gay wedding reception (even if that declaration is mere venting, with no actual intention to carry it out). I would agree that it's worse than the hypothetical intention itself. I certainly agree that there is an important difference between a general unwillingness to serve a certain class of people and a principled refusal to do what one perceives (perhaps wrongly) materially contributes to activities one thinks are wrong. And I also agree that it's far better to make decisions about boycotting businesses and the like by looking at their actual records--whether they actually discriminate, whether they actually contribute business resources to fighting for discriminatory public policies, etc.,--than to base these decisions on hypotheticals ("What WOULD you do if, contra what will ever happen in reality, a gay couple asked you to cater pizza at their wedding?").

      That said, I am unconvinced that we don't need to worry about the effects of sweeping freedom to discriminate based on religious conscience, that such sweeping freedom will never threaten to exclude some people from access to the goods of the market. There are towns in Indiana (and elsewhere) that are small enough and homogeneous enough in their beliefs about same-sex relationships that one has reason to legitimately worry that unrestrained "religious" freedom would substantially burden LGBT people in those communities. And when that kind of conflict arises, I would oppose laws that consistently default in favor of the freedom to practice religiously-motivated discrimination.

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  6. Hi Eric,

    Thank you for those thoughts. Yes, I agree. I think part of the problem is what we think "freedom" means. What will one do with this "freedom"? I think many evangelicals are operating out of a false view of what it means to be "free" and how we are to use our "freedom".

    But thanks again for addressing the complexity of what lies underneath what is going on here and how we can think about these things.

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