Liberalism beyond toleration: Religious exemptions,civility and the ideological other

Introduction: Can civic liberalism be saved?

What is the role of religious exemptions in securing justice and fostering reconciliation in the wake of radical change, such as the gay rights revolution? How should we respond, more specifically, to conservative religious believers who assert a constitutional right to be exempt from providing services to same-sex marriages? Justice Anthony Kennedy’s opinion for a majority of the US Supreme Court in Masterpiece Cakeshop seems to me, in some respects, a model of judicial statesmanship from which we should learn. Kennedy’s opinion upheld the equal dignity of gay people but also insisted that wedding vendors with conscientious objections to same-sex marriage must be given a fair and respectful hearing. I applaud Kennedy’s recognition of fairness claims on both sides of this fraught issue.

We should learn from Kennedy’s fair mindedness and try to slow our slide towards ever-deeper partisan division. Yet the quest for comity should not lead us to compromise on important constitutional principles, and there, as I will argue, Kennedy’s opinion poses risks.

This essay situates the issue of religious exemptions from antidiscrimination requirements within a broad frame. Section I sketches some features of our deeply fractured political social condition, emphasizing the interdependence of religious and political partisanship. American civil society has weakened notably in recent decades. Healthy liberal democracies have healthy civil societies, and we should keep that in mind as we consider how to craft and defend responses to divisive conflicts. In section II, I consider the account of Liberalism’s Religion offered by Cecile Laborde and argue that she exaggerates the importance of state sovereignty – the power of public legal authorities to command obedience – at the expense of recognizing the need to reconcile religious citizens and communities to liberal rights and civil equality for sexual minorities. How should we approach the tasks of repair and reconciliation in our deeply polarized and democratically degraded condition? I also reject the proposal, which Teresa Bejan has recently floated, that we simply lower our expectations and accept a social condition governed by ‘mere civility’ accompanied by ‘mutual contempt’. ¹

I address these issues, in section III, by drawing on ideas familiar from Alexis de Tocqueville, and before him Adam Smith, and closer to our own time, Robert Putnam. These figures contribute, along with others, to what we can think of as the liberal civil society tradition. ² The structure, tone and content of community life and social relations can help make religiously and ethically diverse societies peaceful and tolerant: places where citizens generally have warm fellow feeling towards one another as citizens. How do societies generate and sustain social norms of civility, moderation and compromise, and a commitment to the civic commons or the shared public good? I take up aspects of those final questions, in section IV, by examining the conflicts over whether non-discrimination requirements should be applied to wedding vendors – wedding cake bakers and others – who object on religious grounds to same-sex marriages. I argue that we should be reluctant to make exceptions to the norm of non-discrimination in the commercial sphere, but that we should nevertheless listen sympathetically and respond respectfully to religious conservatives. We must, in this and other ways, be clear about the imperative of equal justice under law while not assuming bad faith among our opponents.

I Political and religious polarization in America

In the United States, the deepest source of conflict nowadays is not religion or at least not religion alone, but religion allied to and in some ways driven by political partisanship. Recent empirical work suggests that when people experience a conflict between their religious and political values, they tend to change their religious affiliations to conform to their moral and political convictions, rather than the other way around. ³ Opposition to abortion, gay rights and premarital sex have been most important in driving the highly religious towards the Republican party. ⁴ Political mobilization on these ‘hot-button’ moral issues has shaped people’s religious convictions.

The specifics concerning how political partisanship nowadays shapes people’s ethical and religious commitments is both astonishing and deeply depressing. Consider this, Evangelical Christians were asked in 2012 whether they would vote for a presidential candidate with ‘serious personal ethical failures’. In 2012, 72% of Evangelicals said they would not. In 2016, with Donald Trump as presidential candidate, only 30% said they would not: an astonishing shift of 42% in 4 years and on a matter that must be highly salient to Evangelicals. Trump remains extremely popular with Evangelicals. Moreover, in 2014, 43% of Republicans and 72% of consistent conservatives said they viewed the Democratic Party very unfavourably, and most of those (36% of Republicans) say that the Democratic Party’s policies are a threat to the nation’s well-being (among Democrats, 27% view Republicans as a threat to America’s well-being). ⁵ The figures are now undoubtedly worse as this was before the rise of Donald Trump. Republicans generally, the party of the religious right, are far more sympathetic to Vladimir Putin than Barack Obama. ⁶

Finally this, many prominent Republicans said during the last presidential campaign that they would never vote for Trump. These were the so-called ‘Never Trumpers’. But essentially no prominent Republican office holders said they would instead vote for Hillary Clinton. ⁷ Not John McCain, who Trump ridiculed for being captured and tortured mercilessly in Vietnam. Not Ted Cruz, whose father, Trump suggested, was involved in the Kennedy assassination. None of the so-called Republican moderates, such as former Arizona Senator Jeff Flake or Senator Susan Collins of Maine.

American civic culture is dissolving in important respects into two cultures as deeply divided as at any time since the Civil War. People are sorting themselves into both religious congregations and geographical areas based on political partisanship, ⁸ and they express increasing levels of alarm at the idea that their son or daughter might marry not someone outside their church, but a member of the opposing political party. Ideological commitments are deep, identity shaping and people are willing to sacrifice for them; in this sense they are increasingly like conscientious religious commitments: deep, identity shaping and non-negotiable.

So, what is to be done?

Many are justifiably heartened by signs of increased political mobilization. And certainly, more participation and especially more equal participation by class and ethnicity, could help. While greater partisan mobilization especially among under-represented groups, is to be welcomed, it is not sufficient.

What are we to do as academics, scholars and commentators on public policies? My suggestion may be naïve, and I do not suppose it will make much difference. Politics is one thing academic politics is another. But it is at least consistent with and indeed could enhance our work as teachers and scholars of political theory, constitutional law and public policy.

My suggestion is this: When we think about ‘the other’ in our politics, we should keep in mind not only refugees and asylum seekers, racial, ethnic and sexual minorities but also our reasonable or potentially reasonable interlocutors on the other side of the ideological and partisan divide. Let us listen sympathetically to the ideological other: conservatives, including those religious conservatives seeking religious exemptions from general laws. This is especially appropriate in conditions of social transition, including in the wake of the 2015 Supreme Court decision recognizing same-sex marriage. Let us deal reasonably and respectfully with religious differences, and not be too quick to assume bad faith on the part of those we disagree with, even deeply.

I want to situate this suggestion in a broader account, by reminding us of traditional liberal aspirations concerning civil society and religion. I argue that mere toleration in its narrower senses – permission with some considerable disapproval, or ‘mere civility’, as Bejan has put it – may suffice to establish liberal democracies and possibly also enable their survival. However, healthy liberal democracies hope for more than mere toleration and the barest civility. One reason is that churches or religious communities are important moral educators. This has been especially true in the United States, but the point has been recognized across central texts in the liberal democratic tradition, as I will describe shortly.

But first let us consider the alternative emphasis in an important recent contribution to the study of liberalism and religion. While the account that I want to recommend is ‘bottom up’, this alternative is ‘top down’, and I want to point out some of its limits.

II Liberal public values and religion: Priority or reconciliation?

At several points in her recent book, Liberalism’s Religion, Cecile Laborde insists that liberalism assumes the state is sovereign over religion. She argues this against ‘critical religion’ theorists, and her way of developing the point is arresting. She insists that the liberal state has what German lawyers call kompetenz kompetenz, or competence competence. That is, it is the state that defines the limits of its own competence, and the ‘competence’ or authority or powers of religious organizations and individuals. Public institutions decide on the boundaries of religion and politics. As Laborde puts it:

The radicalism of liberalism…lies in the fact that it assumes state sovereignty: the state’s prerogative to decisively fix and enforce the terms of the social contract. Secular liberalism assumes that reasonable individuals have a higher order interests in living under political justice on this earth…rather than in living by the word of God…

When Italian public officials insist that crucifixes on the walls of Italian public schools are, similarly, symbols of cultural heritage rather than religion, and Muslim schoolchildren, parents and others object, it is the Italian and European civil courts which are appealed to, to decide the public question for all. So, as Laborde astutely notes, ‘States even define what semiotic meanings to attach to religious symbols’. ¹⁰

Repeatedly, Laborde insists that, ‘ultimately, the state decides how much weight to give…’ churches’ claims and, ‘that is the sense in which it is sovereign’. ¹¹

Professor Laborde’s robust defence of sovereignty is right so far as it goes. State institutions and officials alone wield public authority: the power to make laws and issue rulings in cases and controversies that bind us all. The state represents us as free and equal citizens, and our rights with respect to religion are the rights of equal citizenship. Debates with respect to religious liberty and exemptions concern the question of what equality requires: uniform application of the law, or exemptions or accommodations when particular believers bear special burdens. Public institutions are where these questions of rights and law are properly decided.

And yet, this emphasis on state sovereignty is partial: excessively unilateral. There is, first of all, the general point that public values may not outweigh non-public ones in every instance. Very weighty considerations arising from our non-public values and commitments can, in some circumstances, outweigh public values and aims. ¹² In addition, of course, public institutions may not get the right answer: non-public standpoints may provide useful critical points of view. ¹³

A further and related point is this: the state’s power to command obedience is limited where significant numbers of private actors are sufficiently recalcitrant. Public institutions depend on the ‘buy-in’ of private actors, and the effectiveness of law at shaping actual behaviour may amount to little if it is not undergirded by a general sense of legitimacy and supportive social norms. And all this requires the uptake of liberal values from private people and associations.

Public institutions and policies in a free society depend on the support of the self-organizing forces of society. The ambitions of a diverse liberal constitutional order must go deeper and wider than Laborde lets on. The success of liberal democratic public institutions depends on their capacity to penetrate and shape the values of important organizations in civil society, including religious communities and institutions. That means in some or many cases reconstituting non-public associations and social relations on the basis of equal liberty. ¹⁴

So while Laborde’s insistent rhetoric of sovereignty seems too peremptory, her emphasis on the liberal state as ‘limited’ and ‘not intrusive’ with respect to religion, family and sexuality is incomplete. The sovereign liberal state is indeed ‘limited’ in several important senses: in the scope of its aims (by not enshrining a single conception of the good life or religious truth in law, for example), and in its capacity to coercively command conformity with all of the virtues and values on which a healthy liberal democracy depends. But the success of liberal democracy depends on reshaping and enlisting supportive social forces; it counts on religion, family and sexuality conforming to, or being reshaped on the basis of, basic political values such as equal freedom.

So, consider Laborde’s remark, when she refers to the ‘oft-voiced criticism…that Western law reshapes non-Christian religion according to its own (Christian) standards: it homogenizes religious practice into a set of clearly identifiable obligations and duties on the Christian model’. ¹⁵ The fact is that republican, and later liberal and democratic, states and constitutions helped to transform much of Christianity on their model of toleration and equal liberty. We can only hope that they similarly transforms other religions that need transforming based on ideas of equal religious liberty for all, basic gender equality and the rights of sexual and other historically marginalized minorities.

Laborde largely leaves out the sociological dimension of the supremacy of liberal democratic values and liberalism’s transformative ambitions. A liberal democratic constitutional order is, at a fundamental level, a formative order whose success depends on shaping and limiting all forms of diversity and identity in the name of liberal democratic values. And that includes religion, family life and sexuality.

So, it is not just priority or supremacy that we aim at, but reconciliation or what we could also call congruence across public and private value commitments. The state and our laws need a sense of legitimacy. Political authority depends on supportive social norms and bonds of trust among citizens. These things are on the wane in the United States, and our politics suffers for it.

III The liberal civil society tradition

There is a long liberal tradition of recognizing the interdependence of law and social norms, and the contributions of civil society institutions to civic education, broadly understood, including the formation of liberal democratic civic identities. The importance of the formative role of religious communities is especially important in a highly religious society such as the United States. While recognizing the centrality of state sovereignty and law enforcement, we must also consider how to reconcile religious and non-public normative communities to the demands of justice and rights.

The work of Alexis de Tocqueville is often regarded as the leading figure with respect to some of these claims, but let me quickly indicate other moments in the liberal tradition that are revealing concerning the civic role of religious communities.

Let us begin with Locke’s Letter Concerning Toleration. ¹⁶ The most memorable part of Locke’s important argument is his strident insistence on the separation of religion and politics. The church is:

absolutely separate and distinct from the Commonwealth. The boundaries on both sides are fixed and immovable. He jumbles heaven and earth together, the things most remote and opposite, who mixes these two societies; which are in their original end, business, and every thing, perfectly distinct and infinitely different from each other. ¹⁷

And yet, Locke also makes the equally important if less noted point that the security of the state – the sustainability of a liberal political order – depends upon the religious beliefs that citizens form and act upon. This is most dramatically apparent in his insistence that Catholics, Muslims and atheists could not be good citizens – Catholics and Muslims only insofar as they owe obedience to a foreign prince, Atheists because Locke wrongly thought that they could not be trusted to honor their “promises, covenants, and oaths” – but that is not the end of it. ¹⁸

The very first sentence of the Letter insists that toleration is ‘the chief characteristical mark of the true church’. So toleration is in the first instance defended as a religious mandate; Locke’s Letter repeatedly affirms that Christ and the Gospels command toleration. Consider also how Locke describes the duties of Christian preachers:

It is not enough that Ecclesiastical men abstain from Violence and Rapine, and all manner of Persecution. He that pretends to be a Successor of the Apostles, and takes upon him the Office of Teaching, is obliged also to admonish his Hearers of the Duties of Peace, and Good-will toward all men; as well as toward the Erroneous as the Orthodox; towards those that differ from them in Faith and Worship, as well as towards those that agree with them therein: And he ought industriously to exhort all men, whether private Persons or Magistrates, (if any such there be in his church) to Charity, Meekness, and Toleration; and diligently endeavor to allay and temper all that Heat, and unreasonable averseness of mind, which either any man’s fiery Zeal for his own Sect, or the Craft of others, has kindled against Dissenters. ¹⁹

Adam Smith placed religious sects among the ‘Institutions for the Instruction of People of all Ages’, in Book IV of the Wealth of Nations. ²⁰ Echoing Locke, Smith observes that ‘public tranquility’ and the security of public authority ‘may frequently depend upon the doctrines’ propagated by the clergy.

Smith advocated direct public support for a variety of educative measures, and he also worried that the social structure of an increasingly urban society would, on account of its scale and anonymity, undermine moral character. He worried about what would later be characterized as ‘mass society’ conditions and anomie. The poor lack not only wealth but social status and tend to be socially invisible, and this invisibility breeds demoralization: ‘The poor man goes out and comes in unheeded, and when in the midst of a crowd is in the same obscurity as if shut up in his own hovel’. And elsewhere, the ‘man of low condition’:

is far from being the member of any great society. While he remains in a country village his conduct may be attended to, and he may be obliged to attend to it himself. In this situation…, he may be said to have what is called a character to lose. [Or, we might say, a reputation to lose.] But as soon as he comes to a great city, he is sunk in obscurity and darkness. His conduct is observed and attended to by nobody, and he is therefore very likely to neglect it himself, and to abandon himself to every sort of low profligacy and vice.

Smith also deployed various forms of statecraft intended, among other things, to shape religious communities towards civic ends. He sought to promote the social influence of science and philosophy. He called ‘Science’, the ‘great antidote to the poison of enthusiasm and superstition’. Smith also argued that the state should deal ‘equally and impartially with all the different sects’, and respect religious liberty. This, Smith hoped, would promote civil peace: with free competition the number of sects would multiply, and the power of any one religious leader or community would not be too great. The fragmentation of sects would encourage all to practice moderation and mutual respect. The law’s impartiality among contending religions would promote ‘philosophical good temper and moderation’. Smith’s emphases on equal liberty and state impartiality anticipate much later liberal thinking, including James Madison’s Federalist #10, which held that in an ‘extended republic’, moderation and respect for equal liberty would tend to prevail more easily than in a small republic.

In these ways, Smith both promoted religious freedom and channelled religious communities towards public purposes, not by force – which he thought would be both illiberal and ineffective – but through ‘gentle usage’.

Smith’s emphasis on the importance of religious sects or churches as parts of what we might think of as the larger normative and formative order finds ample support in recent political sociology. People learn political skills and acquire politically valuable connections at church and in church-related communities and social networks.

Robert D Putnam and David E Campbell, in their important book, American Grace, examine the impact of church membership on people’s attitudes and their likelihood of participating in various forms of civic and neighbourly activity, including attending a civic meeting. They find that the most religious Americans (as measured by church attendance, for example) express higher levels of empathy and altruism than the most secular Americans. But the crucial predictive variable when it comes to the likelihood of people actually engaging in neighbourly behaviour and civic activities is not church attendance or merely being exposed to sermons, but having friends from church, or being embedded in religious social networks. Indeed, each friend from church has an additional incremental effect. ²² The crucial thing is the combination of the religious ethic and friends who belong to the same religious community: this is similar to the peer effect Smith described.

One other feature of Putnam and Campbell’s argument is worth noting. Recall that Rousseau argued – in his discussion of civil religion at the end of the Social Contract – that: ‘It is impossible to live in peace with those one believes to be damned’. So, in order to promote the right sort of solidarity or fellow feeling, Rousseau argued that it was necessary for citizens to adhere to a doctrine of religious as well as civil tolerance: that is to accept that their fellow citizens of all faiths can be saved and go to heaven.

The same result seems to have been generated by religious freedom and non-establishment in the United States; roughly the course that Smith also recommended. Many American religious denominations preach firmly that there is no salvation outside the true church: you don’t get to heaven without acceptance of true religion. But very few Americans can bring themselves to believe that. Putnam and Campbell find (as have other sociologists of religion) that Americans overwhelmingly believe that their decent fellow citizens will go to heaven, regardless of their particular religious beliefs and notwithstanding what they are told at Church. ²³

Which is to say that in this case Americans inclusive civic bonds trump theological claims that exclude non-believers from Heaven, yielding a kind of civic surplus of good feeling that extends to the next life. But notice that this is not, or at least not only, because of the sovereignty of the state in formal legal terms, or the competence competence of the state, but rather because of the success of the civic order and its norms of equal regard which have penetrated and shaped the souls of citizens.

How politically consequential is all this?

Consider the striking central observation of Samuel Huntington’s The Third Wave. The title refers to the ‘third wave’ of democratization around the world, which took place in the 1970s and 1980s, in places like Spain and Portugal and Central and South America. Huntington pointed out that this wave of democratization was a Catholic wave, and it was influenced by changes in Catholic social and religious doctrines associated with Vatican II. Up until this point, Catholicism was associated with political authoritarianism – a high percentage of Catholic citizens was associated with political authoritarianism – and only after Vatican II, and the Church’s embrace of religious liberty, does Roman Catholicism become associated with democracy.

The upshot of this brief foray into the liberal civil society tradition has been to emphasize the interdependence of state and civil society, public and private, or, if you prefer, church and state. The success of the liberal project depends upon the liberalization of people’s souls and intimate lives, at least in some important respects. It is not enough to assert state sovereignty and the priority of public over non-public values with respect to the determination of questions of law. We must also reconcile churches and other powerful educative and formative associations to the determinations of public authorities.

Exactly how we should pursue this work of reconciliation is not easy to say. Liberal law needs the ‘buy-in’ of important formative communities such as societies’ major religions. In addition, principled legal reforms may often help change extra-political convictions at odds with, or in tension with, those reforms. Legal scholar Linda McClain has recently reminded us, for example, of the extent to which religious rationales were offered in defence of racial segregation in the 1950s. Changes in law and public policy regarding racial segregation signalled wider changes in moral judgments and social norms that penetrated and shaped civil society institutions broadly. ‘Stateways’ changed ‘folkways’ over time by taking a clear principled stand for racial equality under law with the Supreme Court’s decision in Brown v. Board of Education and, eventually, the support of Congress and the President. ²⁴

This account might suggest that the decline of religiously inflected racism in the face of civil rights law supports, in the case of same-sex marriage rights, a firm line against religion and conscience-based exemptions from antidiscrimination principles. It would, however, be hasty to draw any quick or firm analogies before considering whether some religiously based claims for exemptions may have merit in the context of same-sex marriage.

IV Having your cake?

So how should we think about and respond to claims for religious exemptions or accommodations, keeping in mind both the fundamental values of fairness and equal liberty, and also the hope of reconciling dissenters to controversial reforms such as same-sex marriage? Can exception making be a way of promoting some measure of social reconciliation while not sacrificing the hard-won gains of gay and lesbian people and other minorities?

The basic principled question is whether the fundamental values of fairness and equal liberty, appropriately worked out, require or rule out exemptions, or leave room for them (sometimes or often) on a discretionary basis. I cannot here address these issues in any detail but offer a few brief comments.

The recent Supreme Court case, Masterpiece Cakeshop, illustrates at least one important point: we must listen sympathetically to the complaints of religious conservatives to honour procedural fairness. To do otherwise risks shortchanging genuine complaints, treating people unfairly, and further inflaming social divisions.

In 2012, a gay couple, Charlie Craig and David Mullins, went to the local cake shop in Lakewood, Colorado. Not just any cake shop: Masterpiece Cakeshop owned by Jack Phillips, a cake artiste with a 30-year career; his creations are truly magnificent. ²⁵ And he is a devout Christian: everything he does he does for Jesus. Craig and Mullins wanted a wedding cake but Phillips said he would happily make them a birthday cake or other baked goods, but not a wedding cake because he objected deeply to same-sex marriage on religious grounds and he believed he was within his rights in doing so. As he put it subsequently, ‘I can’t create custom cakes that express messages or celebrate events in conflict with my faith’. ²⁶

The same-sex couple brought a suit before the Colorado Civil Rights Commission, for discrimination on the basis of sexual orientation.

The specifics are important. Same-sex marriage was not yet recognized in Colorado in 2012. President Obama only came out in favour of marriage equality in May of that year. And that was prior to either of the major Supreme Court opinions on same sex marriage: the equal status of same-sex marriages in federal law when those marriages were duly enacted under applicable state law was only announced in 2014 in US v. Windsor (about 26 states recognized same-sex marriage at that time). Only in 2015 did the Supreme Court hold in Obergefell v. Hodges that the US Constitution required states to recognize same-sex marriage on equal terms with heterosexual marriage.

Justice Anthony Kennedy wrote the US Supreme Court decision in the Masterpiece Cakeshop case, affirming that businesses may not treat gay people as ‘inferior in dignity and worth’. And further, he insisted that any exceptions or exemptions for businesses who don’t want to serve gays, must be narrow:

…if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations. ²⁷

Linda McClain points out, moreover, that the Colorado Civil Rights Commissioner’s remarks echoed language in an earlier US Commission on Civil Rights report, released on September 7, 2016, entitled Peaceful Coexistence: Reconciling Non-Discrimination Principles with Civil Liberties. The subject of this report, delivered to President Obama, Vice President Biden and House Speaker Paul Ryan, was the ‘appropriate balance’ between religious liberty and the principles of non-discrimination. Statements by the Commission’s chair, Martin R Castro, sparked the most controversy:

The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.

Justice Kennedy, in sharp contrast, represented Phillips’ actions sympathetically, noting that Jack Phillips’:

dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, or Obergefell. [the gay marriage decisions, in 2014 and 5]. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive.

Nevertheless, Kennedy’s opinion is open to criticism. Leslie Kendrick and Micah Schwartzman argue that Kennedy’s opinion in Philips risks giving matters of etiquette priority over issues of fundamental constitutional principle. ‘Even if a single commissioner’, seemed to disparage Philips’ sincere religious objections, nevertheless, ‘a fair reading of the entire record in Masterpiece shows that the Commission met its adjudicative obligations’. ³³

Kendrick and Schwartzman may be right to suggest that Kennedy exaggerates the problem and somewhat misrepresents the overall record of the Colorado Civil Rights Commission in the Philips case. Moreover, religion has indeed been used to justify discrimination. The most obvious case in point is cited by Kennedy: Newman v. Piggie Park Enterprises, Inc. ³⁴ In Piggie Park, the owner of a restaurant refused service to racial minorities because he believed that race mixing of this sort would lead to racial inter-marriage, which he objected to on religious grounds. The Supreme Court there dismissed his claim as ‘patently frivolous’ and ‘not even a borderline case’. This seems clearly right.

Public accommodations – commercial businesses – must serve the public on a non-discriminatory basis thanks to US civil rights laws, and these are very important liberal democratic commitments. In the US, we owe these laws to those brave African Americans and their allies who sat at racially segregated lunch counters at a time when restaurant owners claimed the right to serve whites only. ³⁵ So if you own and rent-out a hall for wedding receptions, or prepare food for wedding parties, you are going to have to provide your services to one and all. You don’t get to pick and choose because you disapprove of inter-religious or interracial marriages, or you regard Unitarians as heretics or Muslims as terrorists. ³⁶ The non-discrimination principle makes the commercial sphere public. Everyone can go about their business with the assurance that their basic equality will be respected: it means that we will live in one society together: not only public streets, sidewalks and parks but also the regulated marketplace of our commercial republic. This is crucial to the constitution of civil society: as a place where people of diverse backgrounds interact as equals.

A fine restatement of the non-discrimination principle in the context of religious exemptions is, as Kendrick and Schwartzman point out, the concurring opinion of Justice Boson of the New Mexico Supreme Court. This opinion appears in a case involving two wedding photographers – Elane Huguenin and her husband – who asserted a religiously based right to refuse to photograph the wedding of two lesbian women:

At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship. ³⁷

The importance of the non-discrimination principle should not be underestimated. Nevertheless, if we interpret Kennedy’s opinion as a contribution to our wider political conversation, even while conceding its flaws, I think that more than etiquette is at stake. Gay rights have been a political flashpoint for partisan conflict in America for decades. Justice Kennedy – a Reagan nominee to the Supreme Court – has written every major Supreme Court opinion advancing gay rights, including in Masterpiece, his last major opinion on the Court. I interpret Kennedy as insisting on the importance of fairness, which cannot be achieved without a measure of interpretive generosity and even sympathy when trying to make sense of complaints such as those of Jack Philips.

Even if the non-discrimination principle is overriding, we ought to allow that special burdens are borne in some of these cases by vendors who sincerely and deeply object on religious or morally conscientious grounds to contributing to same-sex weddings. And while I join others in applauding Justice Boson’s opinion, for some people engaged in commercial activities we should allow that it is difficult to separate belief and conduct, perhaps especially when those activities are also expressive in nature. That is how Jack Phillips sees his work as a cake artiste: as an expression of his values and creativity. I think we should allow that Jack Phillips is engaged in a creative and expressive activity: should he be exempted from non-discrimination requirements with respect to his made-to-order wedding cakes?

More generally, when if ever, and on what basis or bases, should we allow for or require exemptions from antidiscrimination laws for those who object on religious, moral or ideological grounds to same-sex marriages?

The constitution protects people against compelled speech. Jack Phillips is not actually compelled to do anything. However, if he is to continue to sell made-to-order wedding cakes – a major part of his business – he would be required to sell them to same-sex couples. In fact, he has now stopped selling wedding cakes altogether and suffered a substantial loss of income.

If the basis for an exemption is to include the fact that his commercial activity is expressive in nature, when does the creative and expressive dimensions of some commercial activities make them sufficiently speech-like to justify exemptions from non-discrimination requirements?

There are wedding poets (apparently!) who are commissioned to write verses celebrating particular marriages, and so would qualify for an exemption on compelled speech grounds. Indeed, if we suppose the wedding poet’s services also generally involve being at and reciting the poem, then his or her claim is even stronger, for that would involve not only compelled speech but compelled performance, and that draws the poet closer to the role of minister, for whom an exemption is uncontroversial. ³⁸ The same would be true for wedding singers, especially if they perform their own songs.

An extremely narrow exemption would require both expressive creation and performing in person: Jack Phillips and other bakers would then qualify only if they were also required to attend the wedding and, say, cut and serve the cake. This is not a crazy way of defining a very narrow principle: for commercial activities that are expressive and also involve some sort of performance. ³⁹

If we confine our attention to the expressive dimension alone, it is worth observing that there is already widespread agreement that commercial vendors should not be compelled to actually compose or write messages that they disagree with: so a T-shirt manufacturer might permissibly decline to produce shirts containing messages that he or she finds objectionable. And many of the liberals who argue against an exemption for Jack Philips’s made-to-order cakes nevertheless allow that he should not be compelled to write a message that he disapproves on the cake: at most he can be required to bake the cake and supply the materials for writing the message.

Conservative constitutional scholar Michael McConnell argues for a broader class of exemptions for expressive commercial enterprises in general, in all cases in which such proprietors object to providing their services on religious, moral or ideological grounds. He cites a number of instances in which businesses involving expressive and ‘made-to-order’ (as opposed to ‘off the shelf’) contributions have refused service to particular events and occasions due to moral and ideological opposition. Fashion clothing designers announced publicly that they would never agree to design an inaugural gown or otherwise participate in the Trump inauguration. Several of the Rocketts said they would not dance at the Trump inaugural gala. And McConnell cites many other cases in which firms and individuals have declined to do business with those with whom they have moral or ideological disagreements. ⁴⁰ Economic boycotts organized by civil rights groups against white-owned firms have been protected on constitutional grounds. ⁴¹ If liberals readily accept the legitimacy of refusing service in these cases, why, asks McConnell, are they so reluctant to do so in cases involving same-sex marriage? The made to order wedding cake is as expressive of the maker’s values as is the designer dress. McConnell argues that, ‘no one engaged in an expressive activity can be compelled to use their talents in support of a cause they disapprove of’. ⁴²

Providing exemptions for expressive activities in general is not a totally unreasonable proposal. There would, of course, be line-drawing problems: would the exemption apply to all food preparation that is somewhat more personalized than ordering off a menu? If the lines could be drawn narrowly, and if one stipulates that decent alternative providers are available and willing to do business, then his proposal has some appeal.

The central problem with McConnell’s proposal and the general principle on which it is based is that it would turn back the clock on civil rights protections that have been hard won in American history. It would announce to businesses and commercial service providers that they are free to discriminate on grounds of not only sexual orientation but race, religion, and political ideology if their services are expressive in nature and made to order, and not only at weddings, but whenever they assert an objection to providing their services. We would be announcing broad constitutional protections for ‘expressive’ commercial vendors who assert religious, moral or ideological objections to providing services to vulnerable minorities of all kinds who are currently protected by non-discrimination requirements: groups defined by race, religion, ethnicity, national origins or sexual orientation. And this would apply to purportedly ‘moral’ or religious grounds that we have long judged to be the equivalent of bigotry, ignorance and prejudice. These would also have to be allowed.

The hope might be that only a few categories of enterprises would qualify and that, of those, few would seek to take advantage. And we could hope that such discrimination would be publicized, disapproved of and thereby deterred. But announcing this general principle seems a considerable over-reaction to Jack Phillips’s dilemma.

We do not need a broad principle to allow for the dressmakers’ refusal to design for the Trump inaugural ball. A presidential inauguration is an extremely public and political event, quite unlike a typical wedding. The spouse of a president is hardly in a vulnerable position, as are the groups that non-discrimination laws are meant to protect. We do not need a general principle to cover such disparate cases.

When it comes to a principle as important and broad as non-discrimination in the public commercial sphere, the exceptions should be drawn as narrowly as fairness allows. I would much prefer a very narrowly drawn exception applying to wedding cakes and perhaps wedding photographers, poets and singers. Poets and singers trade in words, so they might be included under more general protections against compelled speech exemption (along with the writing of messages on cakes and the printing of words on T-shirts). Photographers must attend and move respectfully around the wedding, so perhaps another narrow ground can be constructed there.

Another worry is that singling out ‘expressive’ commercial services and goods seems somewhat arbitrary. What about other services that involve close personal involvement, such as the maids who are required to make up couples’ bedrooms, clean their linens and so on? They might feel just as burdened and put upon by having to make up the marital bed for same-sex couples.

Professor Amy Sepinwall, approaching these matters from a liberal perspective, has objected that allowing exemptions for expressive activities in general – for artists but perhaps not for artisans – would build in a class bias. ⁴³ This is a reasonable concern, though not one I can pursue here. If we included artisans (and perhaps others) whose work is made-to-order that could help address the bias issue, though at the cost of expanding the number of people being allowed to discriminate.

An important consideration weighing against pleas for exemptions from non-discrimination requirements is that they impose third-party burdens. In Masterpiece, third-party burdens are created in the form of embarrassment and humiliation of gay couples and their family members, and others like them, in being refused service in a business, singled out, and turned away. The refusal of service might affect not only the gay or lesbian couple and their parents, but also their children and others. And then of course there is the anxiety of anticipating more such occasions in the future. And with a general exemption for expressive commercial services, protected minorities of all kinds would now confront these costs.

Our ability to go about the ordinary affairs of life with the confidence that we will be treated as equals depends upon an assurance of non-discrimination on the bases of race, religion, gender, sexual orientation, and other forbidden grounds. In addition, and relatedly, it is in the commercial sphere where citizens from all backgrounds meet and mix: we hope this produces bridging social capital. These are matters of overriding importance in a diverse liberal democracy, yet some people, including some commercial vendors, will bear some burdens account of the nature of the services they render. As Judge Boson says in the Huguenin case, that may simply be the price that we need to pay for living in a diverse but peaceful and welcoming society.

Further, in some cases, as with wedding vendors in general, there may be alternatives to exemptions from non-discrimination law that better address competing considerations. One suggestion is for vendors to stipulate which wedding venues they will work with: which churches, synagogues, mosques and commercial venues for weddings. ⁴⁴ That way, vendors would be able to be somewhat selective without having to themselves discriminate. There would be some cost involved for the vendors – some business sacrificed as compared with being entirely exempted from non-discrimination requirements – but it would be less. This seems to me a very reasonable proposal.

If we allow exemptions to non-discrimination requirements in the commercial sphere – and most people seem prepared to allow them in at least some cases, those that involve the writing of words of endorsement on cakes and T-shirts – it is important that they be strictly and narrowly drawn. Non-discrimination in the commercial sphere should be the rule in the vast majority of cases if the commercial public sphere is to remain open to all on an equal basis: this is vital for securing equal liberty for all. ⁴⁵ For these reasons, I would not endorse a general exemption for expressive services. Narrower and more focused exemptions might be more justifiable. The most sensible thing for the time may well be to let the discussion proceed, as did Justice Kennedy.

Even when religious objections are overridden, procedural due process can help assure litigants that their complaints have been listened to and taken seriously. We should not be too quick to cut to the right result: often, genuine competing values that are overridden should nevertheless be acknowledged. We might hope that this does something to further some measure of reconciliation.

Conclusion: Towards reconciliation

I have urged the importance, in our polarized political condition, of listening sympathetically to the ideological other. Further I have allowed that wedding vendors like Jack Phillips do bear burdens on account of being required to comply with non-discrimination requirements associated with same-sex weddings, among other things. Yet the value of our equal liberties requires the assurance of respectful treatment in the public commercial sphere, and that assurance is under-written by non-discrimination requirements. It is possible that exemptions for some expressive services associated with weddings could be justified, but these should be narrowly drawn.

Let us return, finally, to the themes of priority versus reconciliation, and the dependence of a civically healthy liberal constitutionalism on supportive civil society institutions. Here as elsewhere, state institutions can command compliance with non-discrimination law. We might hope that in doing so the law stands firm for equality and thereby promotes deeper forms of interaction across lines of difference, greater understanding among those who are deeply divided, and eventual reconciliation.

In some of these cases, however, involving same sex weddings and local service providers I wonder whether we would do well to cut one another some slack, at least so long as other willing vendors are available and the refusal of service has been expressed civilly. We live in a transitional era with respect to gay and lesbian rights: change has been rapid and all in one direction – more or less – for over thirty years. Discomfort caused to some by this historic transition could be eased by not making a federal case of every conflict. Something short of vigorous insistence on full state enforcement of our rights might play a useful role, for a time anyhow, out of consideration for the sincere if misguided sensibilities of others. Hearts and minds might sometimes be changed by acts of personal forbearance and magnanimity, even while the law affirms the equal dignity of gay, lesbian, and transgender Americans, and the right of everyone to be served by businesses of all kinds.