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Wednesday, June 18, 2008

The Alt-Neu clash of anti-discrimination and free exercise

Update: See bottom of post for additional notes.

Over at the Volokh Conspiracy, Dale Carpenter has an excellent post on the new tactic some opponents of same-sex marriage are taking: claiming that SSM will impair the free exercise rights of individuals and faith groups.  Carpenter seems right in noting that the fact of same-sex marriage is doing little work in motivating most claims of infringement of free exercise. For the most part, even if SSM were not recognized, many of the persons or entities would still be claiming their free exercise rights have been threatened. Thus,  the mere fact of SSM's newfound recognition in various  places serves as an opportunity/springboard for repeating earlier claims of conflict between anti-discrimination laws and free exercise.

Like Carpenter, I'm strongly in favor of SSM and rights against discrimination on the basis of sexual orientation more generally. And at the same time I am broadly sympathetic to robust free exercise claims. So the conflict is not an easy one to resolve, especially as religious institutions participate in broader swaths of civil society through the establishment of schools, hospitals, adoption agencies, etc.

Carpenter abjures from trying to find a broad principle or strategy to help resolve these conflicts when they arise.  I'm somewhat leery of ad hoc casuistry and thus tempted to find a (normative if not constitutional) distinction or set of distinctions that would create some predictability and sense here. My view is that, in almost all cases, sexual orientation is about as morally irrelevant as the race of a person. Thus virtually any situation where race-based discrimination should be prohibited should be grounds for application of the same norm against discrimination based on sexual orientation.  Some applications and grounds for holding this view appear after the jump.

The examples below are culled from Carpenter's post. If I'm right that sexual orientation is as morally irrelevant a basis to discriminate upon as race is, then the person or entity claiming infringement of religious freedom should lose in all these following situations. However, in some situations not described below in the cases, I think it's wrong for the state's anti-discrimination norms to intrude (which is different from saying that it's morally permissible to discriminate based on race or sexual orientation). Thus, if someone  refused to date a white person or take a gay person into their home as a room-mate, then that should be permissible since we have good reasons for restricting the reach of the state's power.*

What seems to be doing the work in this area is that we want public places (both governmental and thick active markets) to be free of discrimination, but we are willing to endure some discrimination in the name of preserving small zones of personal freedom that don't intrude (substantially) into the spaces of civil society. Faith groups willing to comply with that anti-discrimination norm can compete with others and create larger empires of influence (universities, hospitals, adoption agencies).  Those that aren't willing to comply with that are permitted to flourish, but they must maintain their views within churches and homes alone. To the extent this line is attractive, it suggests that limiting the reach of permissible discrimination in the marketplace is one way of keeping avenues of opportunity available to all; indeed, it also intimates that the norm of anti-discrimination is instrumentally valuable rather than just something to be maximized or pursued simply for its own sake.

But there is at least one problematic conflict that Gallagher alludes to her in piece in NRO, and this is an example of a conflict that does arise with SSM that doesn't arise with antidiscrimination more generally (and it's something Dale should probably discuss): whether churches will lose (or should lose) their tax exempt status for refusing to perform same-sex marriages. If my analogy of gay=black is taken at full force, then there's not really much reason to treat churches that refuse to marry gays differently than we do churches that retain fundamentally racist norms: either we strip their tax-exempt status or we allow the racist churches to keep theirs (contra Bob Jones).

[2d Update: Actually, upon Rob's prodding and reflection, I'm not sure I was right to suggest that anti-discrimination norms should trump a refusal to perform SSM in the Church. Unlike in Bob Jones, which involved application of anti-discrimination norms to a university -- and therefore as what Rob calls "paraministry,"  and what I called earlier the empire of influence  -- the refusal to perform SSM occurs as an aspect of the core private space and function that should remain relatively inviolate from the state's intrusion. So I think this is consistent with my earlier view about having some space free from state intrusion.]

That said, my tentative sense is that tax-exempt status is something that should probably be revisited more broadly.  In this scenario, there doesn't seem to be a good basis for allowing the effective subsidy associated with tax-exempt status to go to organizations that flout the anti-discrimination norm. Taking the status away leaves churches alone to decide how they want to operate, but requires them to pay their taxes like everyone else. I'm not so troubled by that, but I'd also think that removing tax-exempt status for a whole cluster of third-sector organizations is appropriate, at least in part to blunt the charge that the state is granting important privileges to faith-based organizations based on viewpoints congenial to supporters of the anti-discrimination norms. [I've lightly edited this paragraph.]

*Adoption services: Catholic Charities of Boston refused to place children with same-sex couples as required by Massachusetts law. The group withdrew from the adoption business in 2006.

*Housing: In New York City, Yeshiva University's Albert Einstein College of Medicine, a school under Orthodox Jewish auspices, banned same-sex couples from its married dormitory. In 2001, the state's highest court ruled Yeshiva violated New York City's ban on sexual orientation discrimination and the school now lets same-sex couples live in the dorm.

*Medical services: On religious grounds, a Christian gynecologist in California refused to give his patient in vitro fertilization treatment because she is in a lesbian relationship. (He referred the patient to a partner in his practice group, who agreed to provide the treatment.) The woman sued and the case is pending before the California Supreme Court, which is expected to rule in favor of the lesbian.

*Civil servants: A clerk in Vermont refused to perform a civil union ceremony. In 2001, in a decision that side-stepped the religious liberties issue, the Vermont Supreme Court ruled that he did not need to perform the ceremony because there were other civil servants who would. However, the court did indicate that religious beliefs do not allow employees to discriminate against same-sex couples.

*Wedding services: A same sex couple in Albuquerque asked a photographer to shoot their commitment ceremony. The photographer declined, saying her Christian beliefs prevented her from sanctioning same-sex unions. The couple sued, and the New Mexico Human Rights Commission found the photographer guilty of discrimination and ordered her to pay the couple's legal fees. The photographer is appealing.

*Wedding facilities: Ocean Grove Camp Meeting Association of New Jersey, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for their civil union ceremony. The couple filed a complaint with the state civil rights commission. The commission ruled that the property was open for public use and therefore the Methodist group could not discriminate against gay couples using it. The case is ongoing.

I should add parenthetically that I was both surprised and a bit disappointed by the position taken by the American Jewish Congress' general counsel in yesterday's LA Times. That said, I think it's a mistake to read that op-ed as evidence of that person's (or his organization's) straightforward opposition to SSM. Rather, contra Dale, I think that the op-ed can be read as simply highlighting some of the predictable conflicts and residual costs associated with SSM.

In any event, kudos to Dale for writing such a thoughtful post. It's been a while since I've taken the time to mull some of these conflicts so I'm grateful for the provocation. I'll be curious to hear how others on this blog who are sympathetic to free exercise claims approach these issues normatively.

Update: Rob Vischer at Mirror of Justice takes me to task. He first argues that civil society access should not require adherence to antidiscrimination norms. He then challenges my willingness to strip tax-exempt status from organizations not willing to abide by antidiscrimination norms, and my willingness to strip tax-exempt status more broadly.  I realize that liberalism succeeds or fails in part based on recognition of a public/private boundary. The question then is where does this boundary lie. And this issue ultimately informs the resolution of both points Rob makes.

In the first point, Rob asks:

I agree with Dan that access is important, but the universal enforcement of anti-discrimination norms outside "churches and homes alone" seems more concerned with the intrinsic value of the anti-discrimination message than with the instrumental value of access.  E.g., if 98% of colleges and universities admit students and hire faculty without regard to sexual orientation, why should our concern with "access" force a particular religiously affiliated college to stop discriminating on the basis of sexual orientation (or race, for that matter)?  If there are 5 adoption agencies placing kids with same-sex couples, why should Catholic Charities be compelled to do so?  Does access have to be universal in order to be meaningful?

It would seem odd if the answer to this question turned on empirics alone: for I can simply reverse the scenario and ask Rob, if civil society reflected a deeply Orthodox Jewish or pious Catholic approach, and there were only 2% of the colleges and universities that abided by antidiscrimination norm, would that be a sufficient preserve of access?

To my mind, that's what the West was like in most places prior to the 20th century (politically) and the 17th Century (philosophically). So these are real questions, and I think I'd rather side with an antidiscrimination norm in the public square coupled with a state that left people alone in their churches and homes. I recognize that it's an imposition to draw these lines against faiths that see themselves as kehillot, or communities with various forms of institutions, and don't view themselves as existing simply in the minds of its adherents.

But maybe the answer should turn on empirics too: perhaps if there's a sufficient mix of views in the public square and the marketplace then there's no instrumental reason (in the sense of furthering access) to insist on the anti-discrimination norm. The question I'd ask Rob and those sympathetic with his view is: how do we design institutions so that they can prevent the mix from being too dominated by one religious worldview especially in relatively homogeneous societies?

As to Rob's second question, I really think this is just about which baseline we are operating with. As I wrote him, I think invoking Justice Powell in Bob Jones does no more than confirm that it's basically an endowment effect (the religious organizations currently have the entitlement of not having to pay taxes) that informs/distorts the perspective here. Requiring organizations to pay taxes certainly doesn't strike me, contra Powell, as "an indispensable means of limiting the influence of government orthodoxy on important areas of community life."  Rather, it's a way of recognizing the various pro-social benefits most of these institutions do for society. Requiring them all to pay taxes puts them all on the same footing with each other in the competition for supporters and adherents. Requiring some to pay taxes because they are violating antidiscrimination norms puts them on the same footing as all the private individuals who harbor racist or anti-gay beliefs too. That doesn't strike me as the end of a liberal order. [But, for reasons I hope I clarified above in my update, the situation of refusal to perform SSM in the Church shouldn't be a basis for stripping tax-exempt status.]

*One distinguished classmate from law school, now teaching at one of the finest law schools in the South, once argued that there are good reasons for extending anti-discrimination norms even into the market for love such that personal ads should be cleansed of racial preferences; I haven't bought the argument ... yet.

Posted by Administrators on June 18, 2008 at 02:24 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Dan Markel | Permalink


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Mr. Carpenter’s comments are simply wrong in the main.

He claims "What Gallagher and many others in the anti-gay marriage movement are really objecting to is the extension of antidiscrimination law to gay people -- at least insofar as this extension conflicts with someone's claim that their religious scruples require them to discriminate against homosexuals"

This is simply not the case. Multiple religious groups can and do hire homosexuals in multiple capacities. From Church organist to school teacher & even Priest or Deacon.

Mr. Carpenter conveniently overlooks the problem that same-sex “marriage” produces. In multiple other instances the Religious Body can claim that this individual is engaged in private sinful behavior (like us all) and not causing a public scandal.

Once marriage enters the picture you have both #1. The Scandal against the sexual ethic in general, (a) he/she is obviously out & proud &

#2 The Scandal against the consistent teaching of the Church about what marriage is & is not.

Church’s before same-sex “marriage” have been willing to overlook individuals homosexual behavior & inclinations because they did not directly challenge a foundational tenet of the society & Faith.

Same sex “marriage” does that in a way that is open, dramatic, and impossible to ignore while challenging a Christian sacrament and foundation moral institution.

Posted by: Fitz | Jun 20, 2008 12:39:40 PM

I think that what may provide a "thicker" boundary between public and private, and when "rights" have been infringed is a heavier requirement in terms of showing damage - do away with emotional or theoretical damages in contexts of demanded rights versus individual conscience. This could be combined with "mitigation of damages" requirement.

In the case of the doctor who refused to perform in-virto fertilization, but referred the case to a colleague, how has the woman been damaged, other than emotionally? Using a phrase from another context, is justice delayed (loosely using the term justice, as reluctant as I am to apply it to in-vitro pregnancy attempts), justice denied?

As to the mitigation thoughts, if someone (for instance) is refused an abortion by one doctor, and is immediately able to go to another doctor and receive one, but instead goes to her lawyer and sues, then she should not be able to recover anything from the first doctor.

Posted by: Jonathan | Jun 20, 2008 8:35:37 AM

"It would seem odd if the answer to this question turned on empirics alone"

The whole question of the reach of anti-discrimination laws does turn on empirics alone: the majority will intrude on the freedoms of thought and association of the minority to the degree athey can empirically get away with. Hence the exceptions in civil rights statutes for Mrs. Brown's boarding house, businesses with fewer than X employees, etc. Those exceptions can't possibly have anything to do with principle or reason other than the principle that if the intrusion affects too many people too severely the intruders will find themselves out of office.

Posted by: Student | Jun 19, 2008 10:30:58 AM

You're not reading my post carefully: I specifically suggested that tax-exempt status for all organizations (including churches) should be revisited, which would simply shift the baseline of entitlement for all charitable organizations regardless of their convictions and beliefs regarding traditional sexual morality. That way there's no favoritism toward any religion demonstrated.

Your second point and the rant following it are needlessly incendiary and asinine and deserve no response.

Posted by: Dan Markel | Jun 18, 2008 11:14:46 PM

My tentative sense is that tax-exempt status is something that should probably be revisited more broadly, and in this scenario, there doesn't seem to be a good basis for allowing the effective subsidy associated with tax-exempt status to go to organizations that flout the anti-discrimination norm.

Translation: Government should effectively subsidize churches who abandon traditional sexual morality at the expense of churches who adhere to traditional values. So much for the "no establishment of religion" clause.

*One distinguished classmate from law school, now teaching at one of the finest law schools in the South, once argued that there are good reasons for extending anti-discrimination norms even into the market for love such that personal ads should be cleansed of racial preferences; I haven't bought the argument ... yet.

Why doesn't he just go the whole hog and argue that if a woman refuses to date a man because of his race, he has the right to rape her?

What we are discussing here is in effect the thought police trying to harass those who have traditional moral convictions. It apparently is no longer enough that gays be allowed to live their lives in peace, they want to impose their understanding of morality onto everyone else.

For leftists, "separation of church and state" apparently means that the state should have nearly unlimited powers to curtial the church, and the church should just shut up about it.

Posted by: Glaivester | Jun 18, 2008 10:49:26 PM

The tax-exemption question for discriminatory churches is a tough one; there are lots of articles about the question, but while many are thoughtful, few are satisfying. My tentative view, which I'll expand on when I guest in August (get your tickets now!), is that the answer depends on the rationale for the subsidy in the first place (ok, that's the easy part) and that the most appealing rationale is basically a Rawlsian one. That is, we exempt the "third sector" from tax on contractarian grounds, as a way of accommodating reasonable goals that cannot command majority support and that might fail without financial support. (This theory isn't original to me...I credit Miranda Fleischer for articulating this story in a draft I read recently.)

This in turn suggests that the scope of what must be supported by the exemption depends on what counts as "reasonable" in the Political Liberalism sense. So to cancel the exemption for churches that deny the sacrament or other religious services to people whose life choices they condemn, we need to make the case that the church's judgment is one that no reasonable person could accept. Personally, I can see the case that rejecting same-sex marriage is unreasonable in this way, but I'd be interested to know if there's a comprehensive effort to set out why.

Posted by: BDG | Jun 18, 2008 11:48:34 AM

No, nothing quite so inherently solidarity-oriented as that. I was surprised because I had thought the AJCongress had already staked out a position supportive of gay marriage (some browsing of the website didn't quickly reveal that to be true). I was disappointed because I thought that AJCongress considered the denial of gay-marriage to be motivated by and equivalent to the kind of bigotry they are committed to fighting. But the free exercise issue clearly poses a problem on the margins so I can see why the general counsel would raise the kinds of concerns raised too.

Posted by: Dan Markel | Jun 18, 2008 11:18:12 AM

should add parenthetically that I was both surprised and a bit disappointed by the position taken by the American Jewish Congress' general counsel in yesterday's LA Times.

Why is that, Prof. Markel? Must some victims of discrimination automatically be in support of all others? Or....?

Posted by: Jonathan | Jun 18, 2008 11:03:07 AM

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