Balkinization: Anti-discrimination law in Baseline Hell

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]