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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Anti-discrimination law in Baseline Hell
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Monday, July 20, 2020
Anti-discrimination law in Baseline Hell
Guest Blogger For the symposium on Andrew Koppelman, Gay Rights vs Religious Liberty? The Unnecessary Conflict (Oxford University Press, 2020). Rick Hills
Andy Koppelman has
written a thoughtful, fair-minded, and probably correct defense of moderation
in the drafting of anti-discrimination laws.
His specific proposal, laid out in clearest detail in the final chapter,
is to provide an exemption from anti-discrimination laws that would allow
vendors with religious objections to assisting with same-sex wedding
celebrations to decline to assist them just so long as they announced their
objection publicly, in advance of any specific solicitation by a potential
patron for help with a particular wedding (pages 138-140). This specific proposal is the culmination of a
larger argument in favor of protecting religious dissent regarding LGBT
equality. As Andy notes near the end of his book, “[t]he basic aim should be to
accommodate religion in ways that do not inflict harm on discrete and
identifiable third parties” (page 141), “thereby…creat[ing] safe space for everyone,”
conservative Christian vendors and LGBT customers alike (page 140). Such safe
space protects “[d]iversity of opinion about matters that matter a lot,” even
when “people … regard one another’s views as repulsive, grave moral errors,”
allowing us to “live peacefully together in mutual contempt” (page 145).
I think I agree with
all of his specific prescriptions for religious exemptions, just as a matter of
practical common-sense. His rationale for
these prescriptions, however, suffers from one important and perhaps fatal
weakness: It is rooted in a concept of “safe
space” defined in terms of “harm” that lands Andy’s argument squarely in what I
call Baseline Hell. As I have noted
elsewhere, Baseline Hell
occurs whenever social norms about property are so contested that any change in
the status quo can be painted alternatively as either an exercise or an invasion
of private rights. In Baseline Hell, no
one can easily say whether one’s opponent is playing offense or defense,
because the lines defining each person’s side of the playing field are in
dispute.
Baseline hell exists in many contexts -- for instance, in
the doctrine of regulatory
takings and zoning,
in anti-commandeering/state
autonomy doctrine,
in the conflict between
religious free exercise and anti-establishment rights, and in campaign finance law.
Anti-discrimination law, however, presents an especially vexing example
of baseline hell, because two sets of laws -- the common-law property rights of
business owners and the rival anti-discrimination rights of patrons and
employees – each come invested with some signs of being “property.” How, then,
to tell whether or not an exception to one or the other set of laws counts as a
“harm”?
1.
Why Andy’s concept of “harm” lacks any convincing baseline
Despite valiant efforts, Andy makes little headway on this “baseline
question.” He
asserts, for instance, that patrons who are insulted by wedding vendors’
refusal to serve them “cannot count as harm the moral distress of having your most
cherished views denounced, or of contemplating ways of life antithetical to
your own,” because “[a] core value of free speech is that it will and must
induce such distress” (page127). This argument about the harmlessness of “moral
distress,” however, depends on some prior definition of baselines that Andy
barely explains and never defends. Persons
who inflict moral distress by trespassing on one’s property are not, after all,
protected by any “core value of free speech.” Whatever my right to inflict “moral
distress” by picketing Andy’s house while standing on a public street, I have no
such right to picket Andy while standing on his front porch. Moral distress
inflicted by the latter encroachment, therefore, counts as a “harm,” by Andy’s
own account, even if the trespass is unaccompanied by any other material
inconvenience.
The question of whether
or not moral distress is “harmful,” therefore, turns on whether or not LGBT
couples have some sort of an entitlement – call it an “anti-discrimination easement,”
if you will -- to patronize wedding vendors free from discrimination based on
their sexual orientation. If they do,
then, contrary to Andy’s confident assertion, they have just as much right to
be free from the moral distress of having their “cherished ideals denounced”
while shopping for wedding cakes as they have to enjoy a quiet evening in their
own living room, free from other people’s standing on their front lawn and
shouting vexing blather through a window.
Andy admits as much when he acknowledges that it is an injury to be surprised
by a vendor’s refusal to serve at the moment of purchase. Such surprise, after all, is really just a
species of moral distress. What makes this species of moral distress actionable
is not the surprise but the location, in a public accommodation where customers
have a presumptive right to be served without embarrassing confrontations
unrelated to the commercial transaction.
(Being surprised by an offensive roadside billboard would surely not
count as an injury in Andy’s world). Having conceded so much, he cannot easily
draw a sharp line between that moment inside
the store when the baker tells the couple that he does not assist with same-sex
weddings and the moment outside the
store when the couple reads a sign or webpage declaring in general that no
same-sex weddings will be served. Why
should the line defining “harm” not be drawn instead at the more intuitively
obvious distinction between commercially active public accommodations and more
conventionally “private” property?
Andy valiantly invokes
the idea of “harm” throughout his book only to be foiled by the suppositious
character of the baselines that he uses to define “harm.” Take, for example, his statement that Burwell v. Hobby Lobby
goes too far in protecting religious liberty, because it protects “a right to
hurt people who do not share one’s religious views” (page 83). Hobby Lobby’s
construing the Religious
Freedom Restoration Act to take away contraception
coverage was “harmful,” according to Andy, because the baseline defining
employees’ welfare is the Affordable
Care Act’s mandate for “preventative health and screenings,”
not “a libertarian baseline for harm” rooted in employers’ common-law
entitlements to their revenue (pages 88-89).
Asserting that ACA
defines the relevant baseline for measuring “harm,” however, begs the very
question that Andy seeks to answer: Does ACA or RFRA define the disputants’
entitlements? Maybe the common law does
not define the relevant baselines – but why does not RFRA, as construed by Hobby Lobby, define the “neutral”
baseline treatment to which employers are entitled? We would not say that employers “harmed” employees
by refusing to donate money from their personal funds to pay for
contraception. Why does not RFRA transform
employers’ religious scruples about employment benefits policy into such
personal property? If we are trying to figure out who is depriving whom of
“property,” then it is just as plausible to say that the employees “harming”
Hobby Lobby by trespassing on the company’s RFRA-defined entitlement to
withhold company revenue as to say that Hobby Lobby is “harming” the employees
by embezzling their ACA-defined entitlement to insurance.
The concept of “harm,”
in short, invites circular arguments about which law, ACÁ or RFRA, should take
priority over the other. The problem of
circularity is magnified when one is not merely interpreting existing laws but
instead enacting new ones. We cannot
answer the question of whether Andy’s accommodation is “harmful” to LGBT
patrons until we have a sense of whether those patrons are rightfully entitled
to shop among public accommodations without being vexed by the owners’ expressions
of religiosity. That sense turns on
intuitions about property that are defined by the very statutory proposals that
we are debating.
It is not a big
surprise that the idea of “harm” is parasitic off of the very laws that the
idea is enlisted to define or defend. Since J.S. Mill’s invocation of the concept
of “harm” to define “liberty” in Chapter
4 of On Liberty,
it has been a commonplace of political theory to observe that the concept of
“harm” is an empty placeholder for a theory, not such a theory itself. As
Simon Lee bluntly declared (at page 25 of his 1986
book on law and morality), “[m]erely incanting
‘harm-to-others’ is not sufficient to provide a recipe for when the law should
enforce morality. At best, it provides a starting-point. At worst, it begs all
the important questions.”
Liberal societies have
complex norms about when and where one person is entitled to force their views
on another, thereby causing moral distress.
We have expectations of raucous speech on street corners and op-ed pages
but expectations of peace and quiet in our living rooms and clubs. The problem with Andy’s proposal is that we
have not yet developed any plain sense of what our expectations of free speech
and civic equality ought to be while shopping in small shops owned by
religiously zealous businesspeople.
That’s why this particular venue presents us with an infernally eternal and
futile debate about “harm” in Baseline Hell.”
2. Why not evaluate the moral content of
heterosexism rather than play baseline games?
There is another way to
resolve these disputes about religious accommodations. One might actually evaluate the moral content
of heterosexism. Andy’s version of
liberalism forecloses this sort of inquiry, because it “holds the purpose of
government [is] not … the promotion of religious, moral, or martial virtue….”
(page 14). There are other versions of
liberalism, however, that are less skeptical about assessments of
“moral…virtue.” Democratic republics,
after all, depend on the idea that citizens have equal moral status. Religious beliefs that attack such equality
undermine the republic. They can be
tolerated but only very grudgingly accommodated.
If
one asked this question of civic morality, then one might come up with a richer
account of how racism differs from heterosexism than Andy’s account. Andy distinguishes racism from heterosexism
only by racism’s greater ubiquity (page 65, 120) and violence (pages 122-23),
at least in 1964, when Title II of the 1964 Civil Rights Act was enacted. Neither of these efforts at distinguishing racist
from heterosexist shopowners seems very powerful today: It is hard to believe, for instance, that
overt racism by small businesses is more ubiquitous today (as opposed to 1964) than
overt heterosexism.
While offering these unconvincing
accounts of how racists differ from heterosexists, Andy oddly ignores the unique
ways in which white supremacy undermines civic equality. White supremacy is an ideology devised to
justify exploitation of a subject-race.
Its only goal is to insure the permanent subordination of one group of
people to another. The white
supremacist, therefore, proceeds on the assumption that non-whites can never
become a moral equal of whites through persuasion. Allowing despised minorities
to “convert” to whiteness would indeed defeat the purpose of the racist enterprise,
which is to maintain a permanent underclass of semi-enslaved people.
Racism is, therefore,
about as plain an attack on civic equality as one could possibly imagine,
different in kind from most other “weird” belief systems to which Andy compares
heterosexism and racism. One might reasonably
argue that such a denial of civic equality poses a distinctive threat that
should be extirpated rather than accommodated, because it undermines the civic morality
on which liberal democracies depend – the morality of democratic equality. We
can live with the “mutual contempt” (using Andy’s term) that rival sects feel
for each other, because that contempt is tempered by the democracy of
discussion – i.e., the idea that
ultimately each sect strives to convert the others to its own point of view. The
believer’s very act of proselytizing is implicit recognition of the
non-believer’s moral equality: Why else expend so much effort to change their
minds? As a practical matter, this
mutual proselytizing moderates the viciousness of the attacks. We can imagine a group called “Jews for
Jesus,” because Christianity has as one of its goals the persuasion of non-believers
to become Christians, thereby becoming the moral equals of other Christians. We cannot fathom “Blacks for White Supremacy,”
because white supremacy is not interested in converting Black citizens to “whiteness”:
Any such conversion would remove the contempt that is the whole point of the
ideology.
Racism’s fundamental
denial of civic equality makes it fundamentally different from just another
“gravely wrong” point of view (to use Andy’s phrase). Andy analogizes racism to “weird,” false, and
harmful theories like anti-vaxxer ideas (page 118), but this analogy profoundly
understates the unique character of the threat to civic equality posed by
racism. Anti-vaxxers, like flat-earthers or other believers in weird and false
theories, seek to convert non-believers to the “proper” point of view (e.g.,
that the earth is flat, that vaccines are dangerous), not to create an
underclass of servants and despised people.
They might be foolish and their ideas, harmful, but they do not attack
the moral equality that undergirds a liberal republic.
So
are heterosexists more like flat-earthers and antivaxxers? Or more like racists? I would say more the former than the latter. To the extent that heterosexism is just an
admonition that everyone abstain from same-sex intercourse, it does not deny
civic equality in the same way that racism does. The heterosexist who condemns
same-sex intercourse can hate the sin but respect the moral equality of the
sinner. The very existence of nonsensical
and harmful psychological practices like “conversion therapy” is ironically a testament
to the heterosexists’ view that LGBT people are the heterosexists’ moral
equals.
From the point of view
of civic equality, therefore, the reasons to provide modest accommodations for
heterosexists (however weak or strong those reasons might be) are simply
inapplicable to racists. It is not
fundamentally illegitimate in a democracy to believe silly things. It is
fundamentally illegitimate to deny the moral equality of one’s fellow citizens.
“Demonizing” such denials (to use Andy’s phrase) is not a bad thing: It is a necessary thing, if liberal
democracies are to have any moral foundation at all.
Of
course, you might reject my brief effort to distinguish heterosexism from
racism. One might decide that both sorts of beliefs should never be
accommodated, because both undermine democratic equality in equal measure. The important point is that my way of framing
the problem asks the right sort of question, because it allows us to escape the
endless circularity of arguments about “harm” in baseline hell.
Because he refuses to
talk about the civic morality of rival beliefs, Andy cannot ask these sorts of
questions about the relative threats posed to democratic morality of different
ideas. Rather than squarely confronting
the moral content of religious traditionalists’ heterosexism, Andy dodges about
with familiar rhetoric about tolerating ideas just so long as they do not
“harm” others. This typically liberal reluctance to talk in a straightforward
way about right and wrong, good and bad, places enormous weight on the
baselines that define “harm.” Like his
intellectual predecessors ranging from J.S. Mill to John Rawls, however, Andy
never defines these baselines with the clarity and conviction needed for them
to bear such weight. The result is an
argument that suffers from anti-perfectionist liberalism’s obsession with being
neutral regarding comprehensive theories of the good. As I noted in my
review of Andy’s first book twenty-two years ago, I share Andy’s
reluctance to enlist the state in defining moral norms. Some degree of state
neutrality on goodness and badness is a good thing. But there are limits to every beneficial
practice, including neutrality. When
“harm” talk runs dry, it might be wise to relax those anti-perfectionist
constraints and cut to the chase: Is
tolerating a particular belief good or bad for our collective life?
Andy’s is a fine
argument nonetheless, radiating civic good will and brisk common sense. It would be all the more powerful, however,
if Andy could dump the legacy of Mill and Rawls and instead forthrightly judge
the moral content of the viewpoints on the basis of which he would allow
businesses to affect citizens’ rights.
Posted 9:30 AM by Guest Blogger [link]
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