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.

Religious Freedom vs Freedom to Discriminate: The Case of Mississippi's "Religious Freedom Restoration Act"

In February, the Kansas House of Representatives passed a bill aimed at protecting the "right" of its citizens to discriminate against gays and lesbians on religious grounds. In the wake of cries of segregation, the Kansas State Senate killed it.

A few weeks later, the Arizona governor vetoed a similar bill that had passed both branches of the Arizona legislature.

Earlier this month, both branches of the Mississippi legislature passed its own version of the bill, which the governor promptly signed into law. The law goes into effect in July. Unlike the earlier bills, the Mississippi bill received little media attention--despite actually becoming a law (unlike its predecessors).

Perhaps this is because the Mississippi law is a bit different from the Kansas and Arizona bills.

Philosophical Public Service Announcement: Michele Bachmann's Argument Against Same-Sex Marriage is Bad

One public service that professional philosophers can (and probably should) provide is to carefully explain why certain popular arguments on matters of public interest aren't any good.

Doing this is important because some bad arguments are delivered sincerely by politicians and pundits in the public sphere; and these arguments, despite their unsoundness, play a role in shaping or solidifying people's convictions. And even though anyone who isn't already a true believer can smell something fishy, in some cases it can be hard for the ordinary person to pin down and clearly explain what's gone wrong.

Occasionally I feel the need to present such arguments to my students. A few weeks ago, when discussing same-sex marriage in one of my classes, we were looking at an argument for same sex marriage that relied on the following premise:

Restricting marriage to heterosexual couples amounts to legal discrimination, and thus stands in need of a substantive justification--a compelling state interest, beyond majority preferences or sectarian religious beliefs, that could warrant the state in waiving the presumption of equality under the law.

This premise strikes me as clearly true--and it seemed that pretty much everyone in the class agreed. Those who were opposed to same-sex marriage didn't deny that current practices are discriminatory. What they denied is that the discrimination is unjustified. They thought there were good reasons to exclude same-sex couples from the legal institution of marriage, but were prepared to concede that gays and lesbians were being legally denied something that the heterosexual majority enjoyed.

But I knew full well that there's an argument often repeated in the public sphere which challenges this--an argument which purports to show, not that the discrimination is justified, but that no discrimination is going on at all. So I threw it out there. Here's how the argument goes:

A law that restricts marriage rights to heterosexual couples is not discriminatory at all, because everyone in society has the same rights with respect to marriage that everyone else in society has, namely to marry someone of the opposite sex. No one is excluded from marriage. It's just that everyone in society faces exactly the same constraint on who they can marry. It must be someone of the opposite sex. So: no discrimination, and hence no need to justify the discrimination by appealing to some consideration that could warrant differential treatment.

So what did my students say when I laid out this argument? Very little. I saw some eyes roll. One student said, "I refuse to dignify that argument with a response." They generally sensed it was a bad argument, but they weren't quite able to spell out where the argument goes wrong.

"But if you don't think the argument is convincing," I said to the student who refused to dignify the argument with a response, "you need to be able to explain why. Because this is a major public dispute right now. And not only are there people out there who are sincerely making this argument, but there are people whose prior convictions are being strengthened by it. Put simply, the argument sounds reasonable to them."

Of course, one person who delivers just this argument is GOP presidential candidate Michele Bachmann. Here's a video in which, among other things, she articulates precisely this argument in response to a high school student questioning her opposition to same-sex marriage:



So why is Bachmann's argument bad? (There's actually more than one bad argument in this clip, but I want to focus on the one about same-sex marriage.) The teenagers in the clip were persistent and courageous, but they didn't articulate the fatal flaw in Bachmann's argument with the kind of clarity that would expose it for what it is (maybe even to Bachmann herself).

And what's the fatal flaw? Put simply, the argument is premised on the assumption that everyone has the same sexual orientation. If everyone had a homosexual orientation, then a law restricting marriage to heterosexual couples would require that everyone marry someone they have no attraction to, cannot fall in love with, cannot sustain romantic feelings with, etc. Everyone in society would be equally denied access to a deeply valued social good, namely legal recognition and support for their intimate, romantic loving partnerships. No discrimination there--although we might wonder why the state would systematically deny everyone access to this social good. (I suppose if everyone had a homosexual orientation, the reason might have something to do with motivating reproduction in a world where no one is drawn to reproductive sex).

If everyone had a heterosexual orientation, then--once again--a law restricting marriage to heterosexual couples would be unproblematic. It would preclude everyone from doing something no one had any interest in doing in any event: namely, marrying someone they cannot be attracted to or cultivate romantic feelings for. It would be a kind of silly and pointless restriction, a bit like prohibiting people from eating unhealthy food they despise in contexts where courtesy doesn't demand it.

And, of course, if everyone had a bisexual orientation, then a law restricting marriage to heterosexual couples would put the same limitation on everyone (I've often joked that conservative Christians think everyone is bisexual--after all, they declare that "it's a choice"). We might wonder why this constraint should be imposed, but the constraint would not be discriminatory against any individuals (although it would still discriminate against couples who happened to be of the same sex, and thus would cause considerable pain when people had the bad luck of falling in love with someone of the same sex and then had to face the decision of whether to break up with someone they loved or go on with the relationship knowing they'll never have access to the social and legal goods of civil marriage).

But people don't all have the same sexual orientation. And so, legally limiting civil marriage to heterosexual couples means that heterosexuals are afforded access to a distinctive good (having their intimate romatic partnerships recognized and supported by the state) that is denied to those with a homosexual orientation. (Furthermore, the law creates a situation in which bisexuals are confronted with a potential life challenge--see above--that heterosexuals are immune from). 

Of course, Bachmann claims that a homosexual orientation is something that can be "healed" through so-called reparative therapy or ex-gay ministries. The evidence hardly supports this claim. At best, gays and lesbians can be habituated to more effectively suppress their natural attractions and, perhaps, learn strategies for functioning sexually with people they are not attracted to. But that isn't conversion to heterosexuality. They remain persons with a homosexual orientation who are, we might say, better able to outwardly mimic the sexual lives of persons with a heterosexual orientation (but who, in mimicking this, cannot experience the inner satisfaction and relational intimacy that is possible for heterosexuals).

But suppose Bachmann is right. Suppose reparative therapy actually can succeed in turning a non-heterosexual into a heterosexual. Would it then be the case that restricting marriage to heterosexual couples is not discriminatory? No. It would still be discriminatory. Why? Because, in order to enjoy the distinctive social goods offered by the legal institution of marriage, those who happen to have a homosexual orientation would be required to do something that heterosexuals would not be required to do: They'd need to successfully undergo conversion therapy.

Heterosexuals who fell in love could head straight to the appropriate municipal offices to apply for a marriage licence. If civil marriage were available to same-sex couples, then gays and lesbians could do the same thing. But as it is in most states, they can't. Instead, they're denied the benefit of legal recognition and support for their intimate relationships unless and until (assuming, as Bachmann does, that this is possible) they achieve a successful "conversion" (and spend the time and other resources needed to achieve this).

Imagine, if you will, that public funding for attending state universities were only available to people who spoke English with an American accent. And suppose that there are accent coaches out there who have a track record of success in teaching this ability to those willing to invest the time and resources. Does the latter fact make the policy non-discriminatory? Of course not. Discrimination in the conferral of social goods based on one's accent remains discrimination even if it is possible, with time and effort, for those who have the "wrong" accent to change it.

None of this implies that discrimination is unjustified (although I think it is). But it does imply that to argue that there is nothing discriminatory going on is just misguided. Bachmann's argument is bad. No one should be influenced by it one way or the other. And so its badness needs to be explained, again and again if necessary, so as to shut down any power it might have to erroneously shape public thinking. Consider this my small effort in that cause--and feel free to direct others to this post if you'd rather not explain the badness of the argument yourself.