Altman on Discrimination and Noncomplicity

Andrew Koppelman

The PEA (Philosophy, Politics, Academia) Soup blog, which hosts philosophy discussions, invited me to participate in a symposium on Scott Altman’s article, Discrimination, Noncomplicity, and Reasons That Mask Disdain (Ethics 136 (1):6-33 (2025).  Here’s my contribution:

Scott Altman argues that exemptions from antidiscrimination laws should be denied when they are sought by those who seek to avoid complicity in another’s immorality.  This would categorically bar the now-familiar claims of wedding vendors, such as bakers or photographers, who object to facilitating same-sex weddings.  He thus disagrees with writers such as myself who have argued (see my Gay Rights vs. Religious Liberty? The Unnecessary Conflict, Oxford University Press, 2020) that such claims ought to be legislatively accommodated if that can be accomplished without personally turning away those who seek services for such weddings.

Granting such exemptions, he argues, implicitly accepts and endorses the view that the customer’s immorality makes them unfit for commercial interaction.  Laws should rest on bases that everyone can accept, and that is not a justification that all citizens could accept.  “Reasons that demand humiliation and self-denigration do not treat others respectfully.” (16)  The vendor’s request for exemption “relies on neutral language that masks contempt, requiring the customer to participate in self-denigration by embracing the vendor’s disdain as reasonable.” (16)

Altman is right that the claims of these wedding vendors are predicated on an objectionable kind of disdain for one’s fellow citizens.  But in a diverse society such disdain is common.  Normally citizens cope with that by declining to associate with one another.  Antidiscrimination law is an exception to that right of nonassociation.  The law also sometimes has exceptions to that exception, as part of the general structure of liberal accommodation for diversity.  The exceptions can be invoked even when their motives are invidious.

More generally, lots of familiar laws allow us to injure others for disdainful reasons.  Suppose I bake the prettiest cakes in town, but I won’t sell them to Herman because I hate him and believe that he is accursed before God, a being of an inferior order, loathsome and foul.  My objection is weird and idiosyncratic.  There’s no law on the books anywhere, so far as I know, that bars such discrimination.  Generally, discrimination needs to be common before the legislature acts against it.  (See my Justice for Large Earlobes!  A comment on Richard Arneson’s ‘What is Wrongful Discrimination?’, 43 San Diego L. Rev. 809 (2006).)  Suppose that Herman would like very much to buy one of my cakes, so my denial injures him.  My preference not to sell to him is mild: if the law forced me I would grudgingly comply and would stop thinking about it 20 minutes later.  Any balance of burdens would thus force me to make the sale.  But I get to turn him away: the background law of property masks my disdain.  Like other individual rights, this one can be deployed in morally repellent ways, because the rights holder has no obligation to explain to anyone his reasons for exercising his right as he does. 

Does Altman propose to modify all these background rules?  Another background rule is the limited reach of antidiscrimination statutes.  He writes on this blog:  “unprotected traits can legitimately be grounds for exclusion, even when disdain is expressed.”  So Herman is out of luck.  But why should his moral rights depend on the accident of which traits happen to be protected by positive law?

Altman acknowledges that some integrity-based exemptions are “part of a web of fair compromises that adjust the burdens of social life.” (8)  He also concedes:  “Many antidiscrimination laws include exceptions when a few discriminators are considered to have strong interests and exempting them would not impede the law’s primary goals.” (23)  He acknowledges, for instance, the 1968 Fair Housing Act’s exemption excusing dwellings with four or fewer units if the owner lives in one of the units.  Vice President Hubert Humphrey explained why the exemption was there:  “The relationships involved in such situations are clearly and unmistakably of a much closer and more personal nature than in the case of major commercial establishments.”

In those housing cases the discrimination in question was frankly racist.  Its motives were far worse than those in the modern wedding cases.  That doesn’t mean it was wrong to accommodate such personal concerns. The statute did not accept the disdain in question as reasonable.  Those turned away because of the exception were not asked to accept the landlords’ racism as reasonable.  The statute created (or, more accurately, preserved) a right to be unreasonable.  Was it wrong to do so?  People ought to have safe space for even their morally repellent concerns.

More generally, all laws, including antidiscrimination laws, have boundaries.  Frederick Schauer showed long ago that there’s no analytic difference between rules and exceptions.  (Exceptions, 58 U. Chi. L. Rev. 871 (1991)).  The wedding vendors’ claim is a proposal to adjust the boundaries.

This of course does not settle the question of whether any particular proposed accommodation would thwart the law’s goals or impose unacceptable costs on the people who are discriminated against – whether it is an appropriate way to meet the urgent needs implicated on both sides of this cultural conflict.  But that is the question we should be asking.

Altman’s essay is smart and tightly reasoned, but it shows the limitations of attempts to adjudicate this question with the tools of armchair philosophy.  Lawyers are trained to think about conflict resolution by devising abstract principles that should cover all future cases, and which incidentally entail that their side wins.  But this is not the only way to think about conflict.  Sometimes, the right thing to do is not to follow a principle, but to accurately discern the interests at stake and cobble together an approach that gives some weight to each of those interests.  Ethics is not only about principles.  There is a tradition in moral philosophy, going back to Aristotle, that holds that a good person does not necessarily rely on any abstract ideal, but rather makes sound judgments about the right thing to do in particular situations.  Sometimes principles are overbroad generalizations from experience, and distract us from the moral imperatives of the situation at hand.