Is there a peaceful solution to the present conflict between sexual identity rights claims and religious liberty?
The cultural orthodoxy of sexual identity appears to allow no refuge for dissenters. The proprietors of Memories Pizza learned that those who refuse to endorse the claims of sexual identity are liable to be deprived of their reputation, their livelihood, even the existence of institutions they have built with their own hands in order to serve others. This puts them in company with the former Fire Chief of Atlanta, Catholic Charities, the Sisters of St. Joseph of Boston, Gordon College, and a growing list of people and groups of people who simply want to do good things in the world consistent with their conscience, but find that the space in which they may exercise their convictions is disappearing.
We must reclaim the space for people of good faith to act and form their identities in a way that is consistent with their deepest convictions. This will be difficult work, because the liberty to do so appears to conflict with civil rights. To find a peaceful solution to the present conflict, we must examine those rights claims closely.
An Illusory Conflict of Rights
The recent controversy over Indiana’s Religious Freedom Restoration Act was founded on the presupposition that Indiana’s RFRA causes a conflict between religious liberty rights and non-discrimination rights. In particular, there was concern that RFRA would let private business owners ignore laws that prohibit discrimination on the basis of sexual orientation. But this feared conflict results from over-inflating the rights claims on both sides. Religious liberty claimants are asking for far less than is attributed to them. And sexual identity rights claimants are asking for far more than the law justifies.
On the side of religious freedom, no one is refusing to serve same-sex-attracted people on the ground that they are same-sex-attracted. Religious owners of public accommodations—many business owners, but also school administrators and other charitable actors—object to being coerced to use their resources to communicate what they understand to be a falsehood about the nature of marriage. RFRAs do not even protect that limited right of conscience in any categorical way. RFRAs do not establish rights to discriminate on any ground prohibited in law. Indeed, as Douglas Laycock and other religious liberty scholars have pointed out, RFRAs do not create rights to do anything. Rather, they require a law that substantially burdens religious exercise to be narrowly tailored to the achievement of a compelling interest.
So, there is no conclusive right on the religious liberty side of the conflict. Same-sex-attracted people have no categorical duty to exclude themselves from religious associations, businesses, and charitable ventures, and the religious people who operate those ventures have no categorical liberty to exclude them.
What has escaped attention is the lack of a conclusive right on the other side of the conflict. Sexual-identity rights claimants cannot ground their rights claims in law. No one has a right to enter another’s private property or to benefit from the use of another's assets, even if that property is held open as a public accommodation, for two reasons.
First, the legal privilege that members of the public enjoy to enter into a business, charitable venture, or other public accommodation is neither a property right nor a constitutional right. It is instead a license, fully revocable by the owner for any valid reason.
Second, the license does not give rise to a conclusive right. One cannot say whether a licensee in a public accommodation was legally entitled to be there until one has examined the owner’s reasons. The owner’s reasons for action, including reasons of religious conscience, determine the scope and duration of the license.
What Counts as a “Good Reason” to Refuse Service?
To understand these two points, it is helpful to examine the private-law foundations of contemporary public accommodation rules. Non-discrimination rules governing public accommodations did not begin with the civil rights acts of the 1960s. Well before the American founding, Anglo-American property law prohibited arbitrary discrimination in public accommodations, especially discrimination on the basis of race, where the justification for exclusion is irrelevant to the purpose for which the property is held open to the public.
In the eighteenth century, the English jurist William Blackstone, whose Commentaries on the Laws of England became an influential source of authority for American law, explained that by opening one’s premises as a public accommodation, one vests in the public a license to enter. This legal status is significant. A license, unlike an easement or servitude, is not a property right to enter, and the owner may revoke it for any reason. If a customer is inebriated, or harasses other customers, or refuses to pay, or requests a good or service that the owner does not provide, or insults the owner’s children, etc., the owner has the power to terminate the customer’s lawful authority to be on the premises and to make use of the owner’s business resources.
The owner’s power to revoke the license is not unlimited. To justify any limitation or revocation of the license, Blackstone explained, the owner must offer a “good reason.” If he does not offer a reason, or if his justification is not rational, then he might be held civilly (not criminally) liable to the person excluded. But otherwise, anyone who enters a public accommodation is there at the owner’s discretion.
Thus, a property owner does not relinquish control of the premises by opening his property to the public. He does come under an obligation to make his reasoning transparent, and he runs the risk that a jury might find his justification unreasonable. Yet the license to enter public accommodations does not give rise to a conclusive right. The owner’s reasons for exclusion might or might not be valid, depending upon the circumstances of the case.
As I wrote at Public Discourse last year, this standard is open-ended:
There is no conclusive, one-size-fits-all rule to govern exclusion from public accommodations. Judgment in these matters is left up to institutions and agents of private ordering—the property owner in the first instance; a jury in case of a dispute about the (un)reasonableness of the owner’s judgment.
With this background it becomes apparent that laws categorically prohibiting exclusion on the basis of race codify one small aspect of a large corpus of law governing public accommodations. It is never reasonable to exclude on the basis of race.
Because racial segregation is inherently unjust, and because powerful segments of society abetted that injustice during Jim Crow, lawmakers decided to add criminal sanctions to the civil remedies that common law affords for irrational exclusion. But the legal standard is in the common law doctrine explained above. Statutes prohibiting racial discrimination are, as the Supreme Court of Michigan explained in 1890, “only declaratory of the common law,” meaning they simply restate a rule that already existed in the common law that the states inherited from England at the time of the American founding. Because the racial identity of a would-be licensee is not a valid reason under common law, statutes prohibiting racial discrimination did not enlarge the scope of the public’s license to enter.
A Proposal for Peace
If public accommodation statutes can pick out reasons for exclusion that are per se invalid, then they can also pick out reasons that are per se valid. One set of valid reasons is those grounded in religious conscience, which are not inconsistent with fundamental rights and other fundamental law.
In particular, one’s convictions about the nature of marriage are valid reasons. An owner’s convictions about the nature of marriage should be designated as per se valid reasons to refuse service for ceremonies and activities that promote a radically incompatible understanding of marriage.
Perhaps the crafters of Utah’s recent compromise legislation had something like this is mind. Whatever the overall merits of the Utah approach, it shows that new rights to identify in public according to one’s sexual desires and preferences need not eviscerate ancient rights to act on one’s moral and religious convictions, as long as courts do not foreclose democratic deliberation on these questions. When specifying positive rights of sexual identity and religious exercise, legislatures can craft compromises that are not always possible in court.
Those owners of public accommodations who stand on convictions about the nature of marriage can find support in the fundamental law of all fifty states. As I have explained elsewhere, even states that extend legal marriage recognition to same-sex couples distinguish between natural marriage and same-sex “marriage” for many purposes, including the presumption of paternity and incest prohibitions. If it is reasonable for Massachusetts and New York to distinguish between marriage and same-sex “marriage,” then it must be reasonable for the proprietors of Memories Pizza to do so.
Even if the government redefines marriage to include same-sex relationships, it shouldn’t force the institutions of civil society—charities, schools, and businesses—to violate their reasonable beliefs that marriage is the union of husband and wife. Peace is possible in this culture war.
Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and author of Property and Practical Reason, forthcoming from Cambridge University Press.