Earlier this month, the U.S. Commission on Civil Rights issued its report Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties. The report, which was occasioned in part by the same-sex marriage debate, tries to determine the correct relationship between antidiscrimination laws and the First Amendment’s protection of the free exercise of religion. Currently, persons of religious faith have been legally charged with discrimination under state antidiscrimination laws for refusing to provide their individualized services to same-sex couples because they sincerely believe that marriage is a relationship existing only between one man and one woman. The question is: should they be granted a religious exemption?
The report’s title, Peaceful Coexistence, conveys, perhaps unintentionally, a grim social reality in the United States. Historically, of course, it described the uneasy relationship between the United States and the Soviet Union at the height of the Cold War. In that context, the phrase described how two nations, organized under radically different principles, could avoid the dangers of mutual annihilation through nuclear warfare.
One would hope that the stakes would be lower in this domestic debate, but judging from some of the rhetoric surrounding the issue, they are not. The Chairman of the USCCR, Martin Castro, recently commented publicly that “The phrases ‘religious liberty’ and ‘religious freedom’ . . . remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy, or any form of intolerance.” And there are powerful echoes of that position in a statement by five of the commissioners—Castro, joined by Roberta Achtenberg, David Kladney, Karen Narasaki, and Michael Yaki—who write: “These laws”—which seek exceptions to the antidiscrimination laws—“represent an orchestrated, nationwide effort by extremists to promote bigotry, cloaked in the mantle of ‘religious freedom.’”
These claims are dangerously hyperbolic in the same-sex marriage context. In making my argument, I will put aside all constitutional questions and examine the issue solely as a matter of first principles. The central point is that there is a heavy and real burden, frequently ignored, on those who wish to make claims of bigotry and phobia.
Let’s define our terms. “The English noun bigot,” Wikipedia tells us, “is a term of abuse aimed at a prejudiced or closed-minded person, especially one who is intolerant or hostile towards different social groups (especially, and originally, other religious groups), and especially one whose own beliefs are perceived as unreasonable or excessively narrow-minded, superstitious, or hypocritical. The abstract noun is bigotry.” Phobia, meanwhile, is defined as a “persistent, abnormal, and irrational fear of a specific situation that compels one to avoid it, despite the awareness and reassurance that it is not dangerous.” The issue is whether these terms are more applicable to the people of faith attacked by the commissioners, or to the aggressive commissioners themselves.
One way to answer this question is to examine a case before the Washington Supreme Court, Arlene’s Flowers, Inc. v. Ingersoll, which tests the scope of Washington’s law against discrimination that protects “the right to be free from discrimination because of race, creed, color, national origin, sex, . . . [or] sexual orientation.” The law further gives a person “deeming himself or herself injured by any act” done in violation of the statute the ability to sue for “the actual damages sustained… together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter.” The provision contains no religious exemption for those who refuse to provide services on grounds of conscience.
The sole owner of Arlene’s Flowers is Barronelle Stutzman. The plaintiffs Robert Ingersoll and Curt Freed are a same-sex male couple planning a marriage. Ingersoll was a long-time customer of Stutzman who requested that she prepare the floral arrangements for his impending same-sex marriage to Freed. Stutzman refused, and gave as her reason her Christian belief that marriage takes place only between a man and a woman. She politely referred him to several other florists who were prepared to take his business, and she was even prepared to sell him the flowers he might use to create the appropriate arrangement. But she did not want to prepare the arrangements herself. In light of this, the actual damages in this case were the $7.91 it cost Ingersoll to drive to another florist. Notwithstanding, Ingersoll and Freed, represented by the American Civil Liberties Union, prevailed at trial in a lower court.
The first question is: why apply antidiscrimination law to ordinary business transactions? There are literally tens of millions of people in the United States who follow these Christian beliefs, but there is no evidence of any resistance to doing business with anyone who walks in the door. Wholly apart from the law, it is bad business to turn away customers, especially if those arbitrary sentiments drive other potential clients away. So long as an omnipotent state does not put a decisive thumb on the scale, as it did under Jim Crow, the forces of competition will quickly fill the gap in the provision of services. So why provoke a battle royale over $7.91?
One reason offered by the liberal members of the USCCR is that the case is not really about these actual damages at all, but about the larger issue of emotional distress. Thus, a statement by five of the commissioners quotes Chai Feldblum of the Equal Employment Opportunity Commission as follows:
If I am denied a job, an apartment, a room at a hotel, a table at a restaurant, or a procedure by a doctor because I am a lesbian, that is a deep, intense, and tangible hurt. That hurt is not alleviated because I might be able to go down the street and get a job, an apartment, a hotel room, a restaurant table, or a medical procedure from someone else. The assault to my dignity and my sense of safety in the world occurs when the initial denial happens. That assault is not mitigated by the fact that others might not treat me in the same way.
The term “assault” is used in a very broad sense here; it bears no relationship whatsoever to the common law definitions that mention the use or threat of force against another person, which cannot be found when a person who refuses to do business offers helpful suggestions as to where a disappointed customer may go. The law does recognize a tort of intentional infliction of emotional distress, but limits it to cases of extreme and outrageous conduct, far removed from the Feldblum scenario.
Worse still, it is dangerous to describe these injuries as “deep, intense and tangible,” when people can readily find cordial services elsewhere in a competitive industry. Nor is this supposed injury greater than that which people might feel when turned down for many other reasons, such as when a baker refuses to bake a cakethat says “Blue Lives Matter” on it. But these emotional losses just don’t count. Finally, treating these self-generated harms as actionable gives people the perverse incentive to magnify their sense of loss, when the correct social objective is to minimize it to promote general civility.
Feldblum’s account looks at only one side of the equation. It never asks about the emotional and psychological harms that people like Stutzman the florist might suffer. Indeed, she should bear the heartache if Ingersoll stalks out of her shop never to return, and should have no redress if others follow suit. But in this instance, her emotional harms arise not from customer dissatisfaction, but from concerted legal action by those bullies who want to force her out of business, unless she buckles under state power by engaging in specific acts that violate her deepest beliefs.
But not to worry. The die-hard defenders of the antidiscrimination law tell us how to make her problem go away. The same five commissioners insist:
Providing commercial goods and services does not require that one “blesses” an event. Taking pictures is not “testifying” to one’s spiritual endorsement of a legally recognized ceremony. Frosting a cake is not “helping to celebrate something ... believe[d] to be a transgression of divine law.” Selling flowers is not “contribut[ing] to” a marriage celebration. Those are secular, commercial, quid pro quo transactions; straightforward exchanges of products and services for money.
Really? The expert expositors of Stutzman’s religious beliefs are the same civil rights commissioners who are prepared to trash the lives and reputations of every businessman and businesswoman who acts contrary to their commands. What gives them the moral authority to decide the religious rights and obligations of other people? More to the point, note how well their dismissive attitudes fit the definitions of bigotry and phobia.
Stutzman has thought long and hard about her position. She draws subtle distinctions key to her faith. She works hard to respect the beliefs of those who disagree with her. She understands that she risks the loss of their business and that of others by living according to her beliefs. But she draws a line on principle. Her conduct bears no relationship to a “prejudiced or closed-minded person, especially one who is intolerant or hostile towards different social groups.” Her actions are not borne of some irrational fear.
But the words “bigotry” and “phobia” clearly do apply to the five commissioners who happily denounce people like Stutzman. They show no tolerance, let alone respect, for people with whom they disagree. They exhibit an irrational fear of those people’s influence. They show deep prejudice and hostility to all people of faith. They indulge in vicious overgeneralizations that make it harder to live in peace in a country with people of fundamentally different views. And they seem to take pleasure in bullying little people who can’t fight back.
This issue is bigger than whether religious people should be granted exemptions from certain laws. It’s about the role of state power in our lives. Our nation has to seriously rethink the question of whether it wants the state to force people to do business with others. The only cases where that makes sense are with common carriers and public utilities that have some clear level of monopoly power, where the refusal to deal means having many people going without essential services altogether. But competitive markets have powerful corrective powers. Government monopolists do not. Unfortunately, that lesson is lost on the commissioners of the USCCR, who, in their willingness to beat up on little people, fail to understand that they are the problem, not the solution.
*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.