Sexuality,Third-Party Harms,and the “Live-and-Let-Live” Approach to Religious Exemptions

I. The “Live-and-Let-Live” Approach

Supporters of the LLL solution offer it as a reasonable compromise that allows the state to achieve its LGBT equality objectives while respecting the rights of conscience of individuals who dissent from those objectives on religious grounds. From the LLL perspective, the government should prohibit discrimination on the basis of sexual orientation while granting religious dissenters exemptions from sexual orientation antidiscrimination obligations, in particular on matters related to marriage. The objective, it is argued, is to find the appropriate balance between competing interests, one that keeps the state, once there is a religiously motivated objection to the enforcement of LGBT equality measures, from taking sides. As Professor Thomas Berg puts it in discussing the issue of marriage equality, “[i]t is possible for the state to give both sides in the conflict substantial protection, enabling both to live out their deeply rooted identities, ‘uncloseted,’ free from state interference or discouragement.” ¹⁴ According to Berg, the state, in granting religious exemptions to those who dissent from LGBT equality following the recognition of same-sex marriages, aims “to respect both sides and maintain space for both to live out their values.” ¹⁵ Professor Robin Fretwell Wilson similarly calls for a “live-and-let-live solution . . . that permits refusals [of service] for matters of conscience.” ¹⁶ For Wilson, the appeal of the “live-and-let-live solution [is that it] will in most situations allow both sides to live their lives while maintaining their values.” ¹⁷ And Professor Douglas Laycock argues that “[i]n principle we can create private spaces in which each side can live its own values. Such a commitment to live and let live is the essence of civil liberty.” ¹⁸

The LLL solution is similar to the approach called for by Michael McConnell, a generally more conservative legal scholar of religious liberty than LLL proponents, to issues of sexual orientation. McConnell also asks the state to avoid taking sides in areas of moral conflict between LGBT equality and rights to religious exercise. LGBT rights disputes, he explains, “feature a seemingly irreconcilable clash between those who believe that homosexual conduct is immoral and those who believe that it is a natural and morally unobjectionable manifestation of human sexuality.” ¹⁹ According to McConnell, the proper state response to these disputes is to respect the views of both sides, in the same way that the government should respect the beliefs of both atheists and religious believers. The difference between his proposed approach and that of LGBT rights advocates, McConnell argues, is that his approach, grounded in the First Amendment, calls for the state to avoid taking issues on contested moral questions: “The difference between a ‘gay rights’ position and a ‘First Amendment’ approach is that the former adopts as its governing principle the idea that homosexuality is normal, natural, and morally unobjectionable, while the latter takes the view that the moral issue is not for the government to decide.” ²⁰

The notion that the state should refuse to take sides in contested moral questions is a familiar one to sexual orientation equality debates. It has been supporters of LGBT rights who have traditionally demanded that the state refrain from taking sides in contested moral questions. ²¹ Interestingly, it is LLL advocates who now demand that the government not take sides in contested moral questions in the context of discrimination cases involving religious objections to same-sex marriages. According to LLL supporters, the government in these cases should stay its equality enforcement powers by limiting itself to making sure that sexual minorities and religious conservatives are equally free to “live out their values.” ²²

The overlap in argumentation between those who have worked to expand LGBT rights and LLL proponents who demand legislative exemptions from the scope of LGBT equality measures is perhaps clearest when we compare arguments against sodomy regulations with those for religious exemptions from sexual orientation antidiscrimination laws. In many ways, the political and legal campaigns against sodomy laws were based on an LLL solution. Under that framework, all individuals, whether gay or straight, religious believers or not, should be free to construct their personal lives around the types of sexual intimacy that are consistent with their values. Under an LLL approach to sodomy laws, the state is precluded from taking sides in contested moral questions and therefore cannot rely on majoritarian or contested moral values to justify the criminalization of consensual sexual conduct. ²³

It is important to note that the LLL approach to sodomy regulation depends on a crucial feature of same-sex sexual conduct: The engaging in that conduct by consenting adults does not harm anyone. In many ways, the normative appeal of the LLL approach to religious exemptions depends on whether the same can be said about its proposed accommodations.

The religious liberty scholars who propose the LLL solution make two contentions regarding the question of harms. First, that religious business owners who refuse to provide goods and services to same-sex couples do not harm them in any meaningful way if there are other providers in the relevant marketplace who are willing to serve them. Second, that whatever degree of harm religious merchants may inflict on same-sex couples by refusing to serve them is outweighed by the harm that the enforcement of LGBT equality laws inflicts on those business owners. I address both of these harm-related points, starting with the second one.

II. The Question of Weighing Harms

It bears noting, in assessing the normative appeal of the LLL solution, that it is grounded in the concept of weighing harms. Douglas Laycock, for example, contends that “[t]he scope of any right to refuse service to same-sex couples must depend on comparing the harm to the couple of being refused service and the harm to the merchant or service provider of being coerced to provide service.” ²⁴ From this perspective, once there is a religious objection to the enforcement of an LGBT equality law or policy, the state (presumably through the courts) is relegated to acting, in effect, as a neutral arbiter. Under the LLL approach, once a party (X) accused of discrimination explains that she was motivated by her religious beliefs in denying goods or services to an LGBT person (Y), the state must weigh the harm imposed on Y if the state exempts X from the antidiscrimination obligation against the harm imposed on X if the state enforces the antidiscrimination law that applies to everyone else.

The enforcement of antidiscrimination laws based on the difference between the harm to the plaintiff from the discrimination and the harm to the defendant from the “coercion” (to use Laycock’s characterization) which is part of that enforcement is highly anomalous. ²⁵ To my knowledge, before states began granting same-sex couples the opportunity to marry, no one ever argued that the protections from discrimination afforded to traditionally stigmatized groups, including racial minorities and women, should depend on the impact of the enforcement of antidiscrimination laws on the parties engaging in discriminatory practices. Even in the context of interracial marriage bans, which were routinely defended on grounds of religious principles, no legal academic during the 1950s and 1960s argued that the state, in the name of religious freedom, should act as a neutral arbiter weighing the harm suffered by the victim of discrimination against the harm suffered (from the enforcement of equality measures) by the party engaging in the discriminatory action. ²⁶

Under the LLL approach, the state is not allowed to decide ex-ante that the moral injustice that inheres in discrimination against LGBT people precludes the granting of religious exemptions to for-profit enterprises. Yet, it was precisely that judgment which was at the center of Congress’s enactment of Title II of the Civil Rights Act of 1964, the provision that prohibits (without exempting religious actors) places of public accommodation from discriminating on the basis of race, color, religion, or national origin. ²⁷ As a group of congressmen wrote in a statement accompanying the House Judiciary Committee report on Title II, there was an urgent need to enact a comprehensive federal civil rights statute because “on moral grounds, and from the standpoint of upholding human dignity, the U.S. Congress cannot tolerate [racially discriminatory] practices.” ²⁸ The Senate Judiciary Committee report on Title II made a similar point when it noted that

the primary purpose of [the bill] is to solve . . . the deprivation of personal dignity that surely accompanies denials of equal access to public establishments. Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color. ²⁹

The other two branches of government similarly recognized that the Civil Rights Act aimed principally to address the moral wrong of discrimination and the humiliation that it inflicts on its victims. Speaking for the executive branch, Attorney General Robert Kennedy told Congress that discrimination by places of public accommodation leads blacks “to suffer humiliation and deprivation that no white citizen would tolerate.” ³⁰ For its part, the Supreme Court, in grappling with the question of whether Congress had the authority to enact Title II pursuant to its power to regulate interstate commerce, explained that the fact “that Congress was legislating against moral wrongs in many of these areas rendered its enactments no less valid. In framing Title II of this Act Congress was also dealing with what it considered a moral problem.” ³¹ The Court added that “Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.” ³²

The problem with the weighing harms approach at the center of the LLL solution is that it views the party who engages in discriminatory practices as similarly situated, for purposes of the balancing, to the victim of that discrimination. To call for a simple weighing of the harms, during which the victims of discrimination are in equipoise with the business owners who refuse to serve them because of who they are, is to insufficiently account for the moral wrong of discrimination. The weighing of the harms also insufficiently accounts for society’s interest in eradicating particularly harmful and stigmatizing forms of discrimination (a point clearly understood by those who enacted the Civil Rights Act of 1964). It is probably for these two reasons that no one argues that the weighing of harms approach is appropriate when businesses open to the general public refuse to serve customers on the basis of their race, sex, or religion. There is no justification for treating discrimination on the basis of sexual orientation any differently by allowing defendants to escape liability if they can show that abiding by the antidiscrimination law in question harms them to a greater extent than the non-enforcement of the law harms LGBT people. ³³

Professor Andrew Koppelman contends that LGBT rights advocates, in opposing religious exemptions, err in understanding “the tort of discrimination as a particularized injury to the person, rather than the artifact of social engineering that it really is.” ³⁴ But it seems to me that it is the “weighing of the harms” approach to religious exemptions that is unduly individualistic because it insufficiently accounts for the social context, impact, and meaning of denying services to individuals because of who they are. Koppelman is correct when he notes that “[t]he tort of discrimination makes no sense outside of a social context in which some particular group has been systemically wronged.” ³⁵ It is precisely for that reason that the “weighing of the harms” approach to religious exemptions from antidiscrimination laws is problematic. By focusing solely on the individual harms to both sides, it elides the social context in which the discrimination takes place. ³⁶

It is true that proponents of the LLL approach believe that requiring merchants who object to same-sex marriages on religious grounds to provide goods and services for the celebration of those marriages also creates a moral wrong. ³⁷ For LLL proponents, the weighing of the harms constitutes a fair middle position because it does not prioritize one moral wrong over another. Yet, the question arises of why the government commits a moral wrong when it requires religious business owners, who make their goods and services available to the general public, to serve same-sex couples who wish to marry, but does not commit a moral wrong when it mandates, for example, that merchants with religious objections to racial equality serve interracial couples.

According to LLL proponents, the difference is that while racists, including religious ones, always act in bad faith, many of those who object to serving same-sex couples on religious grounds act in good faith. As Laycock puts it, “sometimes the[] refusals of service [to LGBT people] may be an act of bigotry or social protest, but very often, the claim to feel moral responsibility, or even fear of divine punishment, will be in complete good faith.” ³⁸ For his part, Berg argues that those who, in earlier times, dissented on religious grounds “from basic racial equality showed an intransigence that bespoke a permanent dismissal of African-Americans as full humans.” ³⁹ In contrast, religious dissenters from marriage equality act in good faith because “there is a serious debate about the relationship of sexuality and procreation to marriage, and about the relevance of the centuries of tradition – of accumulated social knowledge – which the world’s great religions embody and which almost uniformly has treated marriage as a relationship between a man and a woman.” ⁴⁰ Finally, Wilson claims that “[w]hile the parallels between racial discrimination and discrimination on the basis of sexual orientation should not be dismissed, it is not clear that the two are equivalent in this context. The religious and moral convictions that motivate objectors to facilitate same-sex marriage simply cannot be marshaled to justify racial discrimination.” ⁴¹

As these arguments show, the distinction that LLL proponents draw between religiously motivated views on race and those on sexual orientation is implicitly linked to an assessment of the reasonableness of the two sets of religious views. Arguments for racial inequality are (now) so beyond the pale that even religious-based claims of racial superiority reflect raw prejudice rather than good faith adherence to religious values. ⁴² In contrast, LLL proponents contend, reasonable people can (still) disagree about the appropriateness of maintaining marriage as a heterosexual institution. As a result, many of those who object to providing same-sex couples with goods and services for the celebration of their marriages do so in good faith and without prejudice.

It is difficult to know with any certainty whether the line between prejudice and good faith on the question of religious objections to marriage equality is as clearly demarcated as LLL proponents claim. Assessments regarding the reasonableness of religious views (by which I mean whether religious views are, in effect, beyond the pale) are inevitably affected by the passage of time and changing social norms. Although proponents of the LLL approach are confident in their assessment that the religious claims of most business owners who oppose same-sex marriage, unlike individuals who opposed racial equality on religious grounds in earlier times, are not beyond the pale, and that those owners therefore act in good faith, history’s judgment may very well be different. Indeed, it seems that growing segments of our society already view morals-based justifications for the differential treatment of LGBT people, even when religiously grounded, with the same kind of skepticism that they view morals-based beliefs about racial differences.

Proponents of broad religious exemptions from LGBT equality measures sometimes claim that religious objections to same-sex marriages are mostly about traditional understandings of marriage rather than moral judgments regarding gay people. ⁴³ It is true that some opponents of marriage equality, in the face of shifting social mores regarding sexual orientation, became less openly critical of same-sex relationships and conduct during the last years of marriage inequality in the United States. But judgments about LGBT people, the value of their commitments and relationships, and their ability to be good parents were at the center, rather than simply a byproduct, of the decades-long political and legal campaigns aimed at maintaining marriage an exclusively heterosexual institution. ⁴⁴

It is also important to keep in mind how difficult it is for outsiders to determine the degree of good faith with which individuals assert religious claims. Such a determination usually requires intrusive inquiries into the nature of and justifications for religious values, inquiries made even more problematic by the fact that religious beliefs are by their nature grounded in considerations of faith rather than in those of reason. ⁴⁵ As a result, courts are hesitant to scrutinize either the sincerity of religious litigants or the reasonableness of their views. ⁴⁶

Sincerity in religious beliefs may serve as the (largely assumed) starting point of discussions about religious exemptions; but sincerity, by itself, is not enough to justify religious exemptions, especially in areas of law and policy, such as those implicating discrimination against historically subordinated groups, in which the government’s interests are so important and compelling. If good faith were enough, then that would justify exemptions from discrimination in almost every case, given how difficult it is for courts and other decisionmakers to assess religious sincerity in meaningful ways. At the end of the day, therefore, claims of good faith on the part of those who engage in differential treatment otherwise prohibited by antidiscrimination laws for religious reasons – claims that, by their nature, cannot be easily defended or undermined – do little to support extending religious exemptions to for-profit enterprises.

This is not to suggest that all religiously-based objections to full equality for LGBT people constitute manifestations of animus toward or prejudice about sexual minorities. But it is to suggest that assertions of good faith that are linked to the question of whether reasonable people can (still) disagree on the morality of marriages by same-sex couples constitute a thin and unstable foundation for the demand that the state act as a neutral arbiter in equally weighing the harm to those couples from the differential treatment against the harm to business owners engendered by the law’s enforcement.

III. The Question of Third-Party Harms

The normative appeal of the LLL approach depends not only on the appropriateness of weighing harms from a position of moral neutrality, but also on the claim that, in most instances, religious business owners who refuse to serve same-sex couples do not harm them in any meaningful way. The “little harm to LGBT people” claim is based on the contention that when religious business owners refuse to serve same-sex couples that are able to find alternative providers, they do nothing more than cause, in Professor Laycock’s words, a “mere inconvenience.” ⁴⁷ Or, as Professor Berg puts it, “[i]n most cases, the offended [same-sex] couple can go to the next entry in the phone book or the Google result” to find another merchant who is willing and able to provide the services or goods in question. ⁴⁸

As an initial matter, it is worth noting how anomalous (once again) it is to determine the viability of a discrimination claim based on the availability of non-discriminating actors in the same marketplace. Indeed, it is worth remembering that, even before the enactment of the Civil Rights Act of 1964, there were some areas of the South, in particular sections of large cities like Atlanta and Memphis, in which merchants, including white ones, were willing and able to serve black customers. But no one argued then that the availability of those alternative providers somehow lessened the harms, especially those related to dignity and the imposition of social stigma, associated with the original refusal of service.

In addition, merchants in the United States today generally serve black customers on equal terms with their white customers. An African American who is today refused service by a place of public accommodation, therefore, will in many instances be able to find alternative providers. Yet, no one argues that that fact justifies exempting religious owners of public accommodations from having to abide by racial antidiscrimination laws. In contrast, the LLL approach to religious exemptions from LGBT equality measures is premised on the notion of the “lone-wolf discriminator,” that is on the idea that since most business owners do not have religious objections to serving same-sex couples, it is appropriate to exempt the few owners for whom such service is inconsistent with their religious values.

Interestingly, only a few years ago, academic supporters of broad religious exemptions were warning that the adoption of marriage equality would lead to an ever increasing number of conflicts between LGBT people and religious conservatives. ⁴⁹ More recently, exemption supporters have emphasized the opposite, contending that the conflicts have been rare and likely to remain so. ⁵⁰ But be that as it may, the normative appeal of the LLL approach depends on rather speculative assertions grounded in the assumption that when religious business owners refuse to provide goods and services to LGBT people, they will be able, in most instances, to find alternative providers without difficulty. Whether those assertions are correct will likely vary by region depending on different factors, including prevailing social mores regarding sexual orientation, the applicability and enforcement of antidiscrimination laws, and even the extent to which there are legislatively mandated religious exemptions that apply to for-profit entities. It is not unreasonable to believe that the very existence of legislative carve outs from antidiscrimination obligations will encourage larger numbers of business owners to seek their protections. The availability of religious exemptions benefiting for-profit entities will leave sexual minorities living in some areas at the mercy of unpredictable marketplaces and vulnerable to the denial of services and goods. ⁵¹

But the LLL approach is normatively problematic even when there are alternative providers willing to serve same-sex couples. This is because, in order for the LLL approach to provide significant protections for religious dissenters, it must minimize or ignore the dignitary harms associated with the initial refusal. The problem is that the existence of alternative providers does not mitigate the dignitary harms associated with the original denial of the services or goods in question. As Chai Feldblum explains,

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 those [services] 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. ⁵²

In distinguishing between permissible differentiation and wrongful discrimination, the theorist Deborah Hellman asks whether the distinctions in question demean others. ⁵³ According to Hellman, whether differential treatment demeans those affected depends on social contexts and meanings. As she explains, “[w]hether the characteristic one uses to classify has the potential to demean is determined largely by how that characteristic has been used to separate people in the past and the relative social status of the group defined by the characteristic today.” ⁵⁴ That is why, for example, to ask racial minorities to sit at the back of the bus constitutes wrongful discrimination but asking teenagers to do the same does not.

Religious objections to same-sex relationships have traditionally been linked to understandings of sexual minorities that view them as sinners and as individuals who are morally compromised and tainted by their relationships of intimacy. This is why, as Douglas NeJaime and Reva Siegel note, when a person of faith refuses to serve LGBT individuals on moral grounds, those individuals “will immediately comprehend the social meaning that refusal expresses.” ⁵⁵ Such social meaning is driven by status-based judgments, that is judgments grounded in the perceived moral unworthiness of sexual minorities as a class based on who and how they love. ⁵⁶ It is not surprising, therefore, that many LGBT people find service refusals by business owners to be demeaning and stigmatizing. ⁵⁷ And when the law refuses to address the harms to dignity and self-worth that inevitably accompany the refusals, it leaves sexual minorities with a sense of inferiority, vulnerability, and second-class citizenship.

It bears noting, in this regard, the extent to which the Supreme Court, in striking down same-sex marriage bans in Obergefell v. Hodges, focused on the many ways in which government policies and social practices, for generations, demeaned sexual minorities through the repeated imposition of dignitary harms. ⁵⁸ In doing so, the Court did not question the sincerity of those who today object to same-sex marriage on religious grounds. At the same time, it made the crucial point that “when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” ⁵⁹

To claim that the harm suffered by sexual minorities when business owners, who make their goods and services available to the general public, refuse to serve them on religious grounds amount to nothing more than a “mere inconvenience” (as long as there are other willing providers in the area) is to ignore the insight of those who enacted the Civil Rights Act of 1964: “that the primary purpose of [that law was] to solve . . . the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” ⁶⁰ As Congress recognized more than fifty years ago, to deny goods and services to members of the public because of who they are causes “humiliation, frustration, and embarrassment.” ⁶¹

It is sometimes claimed that the harm experienced by LGBT people when religious business owners refuse to serve them amounts to nothing more than “knowing that some of your fellow citizens condemn your way of life.” ⁶² These types of claims mischaracterize the harm at issue. The harm does not arise from my knowing that someone else does not like me because of who I am. Instead, the harm arises from the sense of inferiority, vulnerability, and second-class citizenship that comes with being denied goods and services, available to the rest of the paying public, because of who I am. As Nelson Tebbe explains, as a result of discrimination, “[a] person’s relationship with the community can be altered with respect to equal citizenship . . . [N]othing about that altered relationship depend[s] on [a] subjective feelings of insult or isolation – it is a consequence of exclusion.” ⁶³ And, as Alan Brownstein puts it, “the essence of equal protection doctrine and many civil rights laws is that it is fundamentally demeaning for individuals to have their value as a person, a tenant, an employee, or a customer determined by one attribute or characteristic.” ⁶⁴

Some supporters of religious exemptions suggest that whatever harm religious merchants inflict on same-sex couples by refusing to serve them may be addressed by requiring them to announce to potential customers (for example, via their websites) that they only provide goods and services for the celebration of different-sex marriages. ⁶⁵ Knowing which merchants will not serve them, it is argued, protects same-sex couples from the unpleasantness of being refused service directly. The notice proposal assumes that the injury experienced by same-sex couples as a result of service refusals amounts to nothing more than the personal insult of being turned away by merchants who disapprove of them. ⁶⁶ However, the refusals are harmful not (just) because they are insulting, but because they engender a sense of inferiority, vulnerability, and second-class citizenship in members of a class that, proponents of the LLL approach concede, have been the victims of much discrimination and stigmatization in the past. As a result, if the government requires merchants to announce their discriminatory intent in order to qualify for the exemption protection, it would compound rather than mitigate the harms at issue because it would make it known to the entire community that some of its merchants believe same-sex couples are unworthy of their services. ⁶⁷

It bears emphasizing that in arguing that for-profit entities should not be exempted from antidiscrimination obligations on religious grounds, it is not necessary to claim that owners of such entities should never be exempted from neutral rules of general applicability. ⁶⁸ It might be correct, as Eugene Volokh has suggested, that religious owners of markets, for example, should be exempted from (hypothetical) government requirements that they sell lottery tickets or alcohol when doing so is inconsistent with their religious views. ⁶⁹ However, it would seem that the state is entitled, on dignitary grounds, to tell business owners that while they can refuse to sell certain goods and services when doing so is inconsistent with their religious views, once they decide to make those goods and services available to the general public, they cannot rely on their religious beliefs to gain exemptions from widely applicable legal obligations that require merchants to make products available regardless of the race, gender, or sexual orientation of their customers. There is, to say the least, an immense moral difference between making distinctions among products for sale and making distinctions among the human beings who buy them.

It is not particularly surprising that LLL proponents try to minimize the impact that service refusals have on LGBT people. The LLL approach’s normative appeal, after all, is premised on the absence of meaningful harm to sexual minorities when “lone-wolf discriminators” discriminate. But the opposite is not the case. That is, it is not necessary for opponents of religious exemptions benefiting for-profit enterprises to minimize or ignore the harms to religious business owners arising from their having to abide by LGBT equality measures, including the moral complicity they may feel in providing goods and services used to celebrate marriages that offend their religious views. This is because mitigating those harms through religious exemptions creates unacceptable third-party harms. As NeJaime and Siegel point out, the Supreme Court has only mandated religious exemptions from generally applicable laws when they do not impose significant harms on third parties. ⁷⁰ Indeed, the Supreme Court’s ruling in Burwell v. Hobby Lobby was premised on the view that exempting closely held corporations owned by religious owners from the obligation to provide female employees with free access to contraceptives did not harm the employees because the government had alternative ways of guaranteeing the access. ⁷¹ It is not possible for the government to protect LGBT people from the harms associated with sexual orientation and gender identity discrimination other than by prohibiting that discrimination. ⁷²

Ultimately, the LLL approach fails to persuade because its normative appeal depends on the claim that religious exemptions benefiting for-profit entities fail to harm LGBT people in any significant way. As several commentators have pointed out, and as I have argued here, that claim is not correct. At the end of the day, the LLL solution does not provide a viable basis for justifying the granting of religious exemptions from LGBT equality measures to for-profit entities.

IV. Conclusion

It is important not to lump together all those who support broad religious exemptions from LGBT equality measures. The religious liberty scholars who defend the LLL approach deserve credit for attempting to develop a compromise position that provides robust protection for religious dissenters from LGBT equality measures in ways they believe will not significantly interfere with the attainment of that equality. However, considerations of harm render the LLL solution unappealing for two main reasons. First, the approach calls for a type of balancing of harms that is largely foreign to antidiscrimination law and problematic in its own right. Second, the LLL approach inappropriately minimizes or ignores the harms suffered by sexual minorities when merchants are willing to serve all who come through their actual or virtual doors as long as the potential customers are heterosexual or as long as they are interested in marrying someone of the opposite sex.