Thinking Through “Religious Liberty,” The State, And Anti-Discrimination law

Over at Salon, Matt Bruenig went on a much-deserved scorched earth campaign against the new bill from the Kansas State House, which would’ve effectively legalized widespread anti-gay discrimination in the state’s economy. (And given the Kansas State Senate just nixed it, I guess the campaign worked.) Defenders and pseudo-defenders of the bill rest their argument on versions of Rand Paul’s objection to the Civil Rights act: that who businesses do or don’t serve is a private matter between them and their customers, and government getting involved is a constriction of liberty.

Bruenig’s rebuttal is straightforward: contract and property rights and so forth don’t just emerge out of the aether. They’re written in law — which is to say, they’re a contingent social construct — and they’re enforced by police power — which is to say, the state’s monopoly on legitimate force. As a result, there’s mostly no such thing as “private” economic interactions. The relationship is actually three-way: between businesses, customers, and the state as mediator and enforcer. If a group of black people or an after party from a gay wedding sits down at your counter and you want them to leave, they aren’t just magically expelled by the cosmos. You call the cops and have them come down and force them out.

The upshot is that there’s no objective baseline from which increases or decreases in “liberty” can be measured. The very fact that there are rights of property and association and contract in play at all means coercion has already been engaged in. It’s social constructs all the way down. Before you can decide what these rights and laws are and how they will operate, you have already have a set of moral values in place describing what sort of social order you’d like to have.

Bruenig is obviously correct on all these points. However, I’m not sure they actually score much other than a rhetorical victory. (Granted, rhetorical victories can be important.) Even if we all agree these are just subjectively determined rules by which people can mobilize state violence in their favor, it remains the case that we do need objective rules for that. And they need to be rules that majorities in a pluralistic and highly diverse democracy, with lots of people with lots of different value systems and world views, can all live with. This is basically the “traffic light” theory of property rights — that property rights are good, not because they reflect some inherent moral truth, but because they facilitate human cooperation. Like traffic laws, property laws don’t have to be designed any particular way. So how we design them is a collective social effort based around what we think is the most just and flourishing social order. Anti-discrimination law is just one more aspect of that shared charter determining what the “traffic laws” of property and contract and so forth are.

This is the first clue as to why the conservative freakout over “religious liberty” is so disingenuous. What’s changed recently was not the content of anti-discrimination law’s protections — most everyone on both sides of the aisle (except Rand Paul, I guess) has been fine with those protections for decades — but the addition of sexual orientation to the list of protected characteristics, followed by the partial arrival of legal equality for gay marriages. In other words, if liberty is under threat here, it’s not from changing attitudes about homosexuality. It’s from a set of anti-discrimination laws that were improperly designed all along.

Once this is clarified, it seems to me, the conservative champion of “religious liberty” has three options:

1) Argue that sexual orientation shouldn’t be a protected category.

That’s basically what the Kansas bill would’ve done. The lawmakers tried to hedge by writing the bill as if it only got businesses out of endorsing or participating in gay weddings. But the language was so expansive it would’ve effectively kicked gay Americans out of the protection of anti-discrimination law entirely.

Furthermore, as I said, moral values come before property rights and contract law. So you can’t argue that the law should allow discrimination against gay people without also implying that discrimination against gay people is morally legitimate. (Or that you find that discrimination morally preferable to not allowing people who enjoy class, racial, or heteronormative privilege to leverage state power in defense of their privilege.) The two things are inextricably linked.

So in a certain sense, conservatives are right that they’re under threat from a surrounding society whose mores are changing around them. They just have no standing to complain, because they’re fine with the way our society also changed around people who believed black people are inferior and shouldn’t be allowed to participate in society in the same way as whites.

Conservatives try to get around this point by claiming they don’t want to be able to discriminate against a characteristic (being gay), just a behavior they morally object to (a gay wedding). This is coherent, after a fashion. But let’s clarify where that logic goes. It would also justify discrimination on religious grounds (“I don’t object to Jews, just to selling them products that would be used in a seder”) and in some cases on racial grounds (“I don’t object to black people, just to them marrying white people”). Are conservatives willing to allow those forms of discrimination as well?

2) Argue that moral objections to homosexuality are more legitimate than believing black people are inferior.

This seems to be the default position a lot of centrists and conservatives are sliding into. There are enormous and obvious First Amendment problems with it, as you’re effectively calling on government and the courts to decide what counts as a religion and what does not, or what does and does not count as an infringement of conscience. Judges will have to start explaining why Amish objections to paying social security taxes aren’t deserving of respect, but the Little Sisters Of The Poor’s objection to the birth control mandate is. Or why a southern evangelical’s belief that interracial marriage is against God’s law may be dismissed, but a traditionalist Catholic’s belief that homosexual unions displease the Almighty is of sufficient pedigree to command our deference.

Any principled conservative — hell, any principled American — ought to immediately balk at this scheme on purely constitutional grounds, not to mention the way it would further our unpleasant national habit of treating the Supreme Court like a bevy of philosopher-kings.

3) Tweak the scope of anti-discrimination law and jurisprudence.

Like I said, the law doesn’t have to be any particular way. And I think it’s at least conceptually possible that anti-discrimination law could be tweaked in ways that would answer at least some of the “religious liberty” concerns without running afoul of our recognition that systemic privilege and anti-gay discrimination are moral problems that call for systemic solutions.

For instance, in the case of the New Mexico photographer who refused to shoot a gay wedding, the only reason there was a case was because the courts determined the photographer’s business qualified as a “public accommodation” — the category of businesses subject to anti-discrimination law. I think there’s a reasonable argument to be made that a freelance photographer who’s basically a one-person shop (and any other businesses similarly structured) should not be considered a “public accommodation.” Laws could easily be altered to make the definition a bit less expansive, and in a way the clarifies matters for the courts. But, per the problems with option 2, it would need to be a rollback for all protected categories: religion, race, gender, disability, the works.

But are you willing to allow, say, a self-employed plumber to deny service to a couple just because they’re gay? Or interracial? Or traditionalist Catholic? I’m not. And if you’re not either, do you really think the law can convincingly differentiate a traditional “service” job from something more “artisan” like photography or baking? Do you think it should try?

So I’m deeply skeptical even of option 3, though it does it strikes me as a non-crazy idea offered in good faith.

But here’s the thing: if all we have to do to settle this problem in a way that’s acceptable to all sides is tweak the legislative definition of “public accommodation,” then what we have here is an incredibly banal conflict. It has nothing to do with “religious liberty” or the supposed rise of some pugilistic secularist tribe that intends to crush all divergent world views before it. All we have is an unintended hiccup, easily solved, resulting from a benign aspect of our anti-discrimination law that — up until two or three years ago — no one (other than Rand Paul) had the slightest problem with.

If something so modest will address conservatives’ concerns, then there is no “religious liberty” crisis and never has been. In which case, all the handwringing we’ve been subjected to was merely the product of conservatism’s collective ego and monumental self-pity.

On the other hand, if that option 3 won’t address their concerns, then conservatives’ intentions are far, far more radical than they’re willing to admit in public. Other than the conservatives in Kansas, that is.

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