Religious exemptions for antigay discrimination?

Andrew Koppelman

The general rule, in employment decisions, is that of employment at will. An employer normally has the privilege of refusing to hire, or of firing, employees for any reason or no reason. He need not justify these actions to any official. Antidiscrimination laws, such as the Civil Rights Act of 1964, are exceptions to this general rule. So long as an employer does not engage in the enumerated types of discrimination, she has the privilege of being as arbitrary as she likes in her hiring. I can, for example, absolutely refuse to hire anyone whose eyebrows are not at least three inches long.

It is important to understand the reasons for the rule of employment at will, so that we can understand what we are doing when we depart from that rule. One traditional justification is rights-based: people have a right, it is sometimes said, to do what they like with their private property. The bankruptcy of this justification became clear during the debate over the Civil Rights Act of 1964, which then-presidential candidate Barry Goldwater opposed on libertarian grounds. The Civil Rights Act is not an invasion of our precious liberties. On the contrary, it diminishes the amount of oppression in the world. The idea of private property is not as sacrosanct as it once was, because the uses of that property can have public effects that are legitimate objects of legislative concern. Even Goldwater eventually abandoned the libertarian argument and supported antidiscrimination protection for gay people.

The more persuasive justification for the rule of employment at will is efficiency-based. It would be a terrible burden on the economy for government officials to have to approve every firing, much more every refusal to hire, that takes place in the private sector. Moreover, because most employers have no monopoly on the jobs they offer, there is little reason to think that most types of arbitrary refusal to hire are likely to have much effect on anyone’s opportunities. Although I may refuse to hire anyone whose eyebrows are less than three inches long, other employers will compete for the services of the short-eyebrowed, and so will bid their wages up to pretty much the same level that they would have been if I had been willing to hire them. And the market will also punish me for my foolishly discriminatory hiring practices, since competent short-eyebrowed workers will go to work for my competitors. My tendency to discriminate means that I am turning away better workers and hiring worse ones. The overall tendency is for people like me to be driven out of the market.

Considerations of this sort led Richard Epstein to argue that the Civil Rights Act ought to be repealed, because it interfered with freedom of contract for no good reason. In a free market, he argued, we can expect that blacks’ wages (for instance) will be as high as they can be. Epstein did not persuade many people. The point most commonly made by his critics was that he had left culture out of his model. Some groups are subject to pervasive discrimination. At least when the Civil Rights Act was enacted, his critics argued, racism was sufficiently pervasive to withstand the egalitarian tendencies of a well-functioning free market. Antidiscrimination law can have a powerful effect on economic opportunity. We know that black wages, for instance, went up dramatically after the act was passed. In 1964, the median income of nonwhite males was 57% of median white male income. By 1985, that ratio had risen to 66%. The proportion of black men working as professionals or managers relative to whites rose from 32% to 64%. The most dramatic progress came in the first ten years after the Act.

Epstein does not succeed in showing that antidiscrimination law should not exist, but he does show why the burden is on those who want antidiscrimination law to be extended to new classes, and what it is that they need to show. Anyone who wants to extend antidiscrimination protection to a new class needs to show that the class is subject to discrimination that is so pervasive that markets will not solve the problem.

A plausible claim of this kind can be made for lesbians and gay men. The intensity with which gay people have been despised in American culture is well documented, and good scholarship has now dispelled Antonin Scalia’s ignorant claim that all gays “have high disposable income.” Whatever the merits of the argument, many legislatures have been persuaded that antigay discrimination is pervasive enough, and has a sufficiently severe effect on the economic opportunities of gay people, to warrant protection. As noted earlier, discrimination against gay people is prohibited in twenty-two states, the District of Columbia, and many municipalities. Not all of these have religious exemptions, and the exemptions that exist vary widely in their scope. If these statutes are enforced, then in those jurisdictions, overt discrimination against gays will become like discrimination against the long-eyebrowed: if it happens once in a while, it will not make any economic difference. The preconditions for Epstein’s economic defense of a right to discriminate are not always present—that is why his general argument against antidiscrimination law is wrong—but they will be present here.

There is every reason to think that religious exemptions will not often be sought. Antigay discrimination is now sufficiently stigmatized that a business that openly discriminates is likely to pay an economic price for doing so. When religious exemptions are available, they are an affirmative defense against the enforcement of the law. The defendant charged with discrimination carries the burden of pleading, the burden of producing evidence showing that the exemption is applicable, and the burden of persuasion. An antidiscrimination law with a religious exemption is nothing at all like a regime with no such law. The difficulties should not be exaggerated; conspicuously religious discriminators are so likely to prevail in their defenses that they are unlikely to be sued in the first place. But there are unlikely to be huge numbers of them, at least in most parts of most jurisdictions that protect gay people from discrimination.

The great attraction of regulation-plus-exemptions is that it lowers the stakes and makes possible a legislative compromise that does not threaten the deepest interests on either side. The burden of complying with antidiscrimination rules has become one of the premier concerns of conservative Christians, who tend to understand their opposition to gay rights to be defensive in nature. They have been collecting horror stories which, they argue, show that gay rights are a threat to religious liberty. Reasonable gay rights proponents should take these concerns seriously and seek to accommodate them where this is possible—not just because it is politically sensible (though it is), but because it is the right thing to do.

(For those who would like the citations for the claims made above, I’ve developed these claims in an article, available here.)