Doug Laycock is nothing if not reasonable. But sometimes reasonable is not right. The most important area of disagreement he addresses, and the one most central to this discussion, concerns the appropriate breadth of the religious exemption that would give individuals and organizations a legally-recognized right to discriminate against gays and lesbians.
At the outset, I must concede that Doug is correct that I misread the breadth of his proposal. Or, more accurately, in my discussion of this issue I focused on Rick Garnett’s version of the exemption rather than on Doug’s. In an April 20 letter to the Speaker of the House of the Connecticut legislature, Rick and three other law professors called upon the Connecticut legislature, in the wake of the Connecticut Supreme Court’s decision holding the denial of same-sex marriage unconstitutional, to enact a law that would exempt any “individual” from any law of the state, “including but not limited to laws regarding employment discrimination, housing, public accommodations,” etc. “for refusing to provide services, accommodations, advantages, facilities, goods, or privileges,” whenever recognizing the legitimacy of a same-sex marriage would “violate their sincerely held religious beliefs.” It was primarily to this proposal that I was responding in my May 5 post.
If I was, as Doug suggests, “not my usual careful self” in writing that post, it was not because I was blithely attacking “straw men,” but because I failed to distinguish between Doug’s position and Rick’s. Doug’s position purports to be much narrower and more reasonable than Rick’s, because Doug would grant a religious exemption only in those circumstances in which the individual “feels personally culpable for his contribution to the marriage.” The examples he offers were wedding planners, marital counselors, and adoption agencies. Doug sees this as an important limiting principle on the possible breadth of the exemption. Moreover, Doug would further limit the exemption to only those situations where alternate service providers are “reasonably available.”
Let me turn, then, to Doug’s narrower are more reasonable proposal for a religious exemption. I should make clear that I do not oppose religious exemptions as a matter of principle. To the contrary, I support religious exemptions, for example, from the draft, from laws prohibiting the religious use of certain substances (such as peyote), and from certain prison regulations that would seriously impair the religious liberty of inmates.
As I noted in my earlier post, however, I am much more troubled by religious exemptions that would have a direct impact on the rights of other individuals, rather than on the state. Even in that situation, though, there are some circumstances in which I would support a religious exemptions even though it would restrict the rights of individuals. For example, I fully support the provision of H.R. 2234 that guarantees that “nothing in this Act shall interfere with or regulate the religious practice of any religious body,” including the authority of any “religious body . . . to choose whether or not to solemnize or officiate a civil union.” Although Doug and Rick dismiss this as a minor concession, the guarantee that religious bodies are free to discriminate in their “religious practices” against same-sex couples is hardly minor.
But when we move from “religious bodies” and “religious practices” to individuals, the issue becomes much more complex. Doug insists that his version of the religious exemption for individuals is narrow and more reasonable because it applies only to those individuals who feel “personally culpable” for their “contribution to the marriage.” But, despite his examples, I haven’t the faintest idea what this means or how it would provide a meaningful limiting principle in practice.
If a wedding planner has a right not to work for a same-sex couple, then what about a hotel that doesn’t want to host the wedding or allow the couple to celebrate their honeymoon there? What about restaurants that don’t want same-sex couples to celebrate their anniversaries by dining there? What about restaurants that don’t generally want to serve same-sex couples because they don’t want to be implicated in the sinfulness of the civil union? What about store owners who doesn’t want to sell food or house repair materials to same-sex couples because that would make them feel “personally culpable” for their “contribution to the marriage”?
I could go on indefinitely, but you get the point. Doug means well with his proposed exemption, but it is the first step on an endless slippery slope. It offers no principled rule that could sensibly limit the scope of the exemption. When all is said and done, it leads right back into an open invitation to every tomdickandharry to discriminate against gays and lesbians. Sometimes reasonable just doesn’t work.
Moreover, as I noted in my initial post, inquiries into an individual’s subjective religious beliefs are notoriously difficult and awkward. At least with a religious body, there is a clear sense of the tenets of the religion and usually a clear track record of experience. With individuals, however, the inquiry is much more speculative. Is the motivation to refuse service truly religious, or is it moral, or is it just the result ignorant prejudice? Are courts really going to decide this question on a case-by-case basis? I don’t think so.
I found it ironic that Doug suggests that if we just let people discriminate against gays and lesbians for religious reasons, this will all work itself out over time in the market. That is, those who oppose same-sex unions now for religious reasons will eventually come to the view that their economic self-interest is not to discriminate. Of course, this is the same argument made in the 1960s against anti-discrimination laws generally. “We don’t need a law, because people will maximize their economic self-interest and stop discriminating.”
I have two objections to this line of reasoning. First, it may not be true. In many instances, there will be a market for those who discriminate. Second, it may be true. If Doug is right that people will abandon their discriminatory practices, what does that tell us about the power and legitimacy of their claimed religious objections? Is a religious objection something one abandons when it conflicts with one’s economic interest? If so, it hardly seems so profound that we need to protect it.
Finally, Doug argues that his proposal is reasonable because religious objectors would not be able to assert the exemption if the same-sex couple couldn’t reasonably find someone else to deal with them. The tie, in other words, goes to the gay. And, of course, in the vast majority of situations this would be the case. Except in unusual circumstances, if you can’t go to one restaurant, you can go to another. If you can’t use one adoption agency, you can use another. And so on.
But there are two overriding objections to this line of reasoning. First, it invites discrimination regardless of whether the discrimination is actually grounded in religion. Second, it smacks of the old defense of separate-but-equal. So what if you can’t drink out of the white water fountain as long as you can drink out of the black water fountain? So what if you can’t be buried in the white cemetery as long as you can be buried in the black cemetery? So what if you can’t eat at the white lunch counter as long as you can eat at the black lunch counter?
The combination of the inherent ambiguity of Doug’s limiting principle, the extraordinary difficulty of determining religious motivation and the individual level, the unintended invitation of the proposal to all sorts of discrimination in the guise of religious objection, and the severe dignitary harm inflicted by “No Jews, Blacks, Dogs or Gays Allowed,” renders Doug’s well-meaning proposal unreasonable. Sometimes reasonable just doesn’t work.