Andrew Koppelman writes:
Thanks to Adam MacLeod for his thoughtful and generous two-part response to my book, Gay Rights vs. Religious Liberty? The Unnecessary Conflict. (You can read the introduction to the book here.) He rejects my proposed resolution of the wedding-vendor controversies, and offers an alternative that is philosophically interesting but politically and legally unworkable. In this unfortunate feud, there has been a persistent tendency on both sides to minimize the interests of the other. I fear that MacLeod has fallen into this trap. He thinks that the conflict would disappear if discrimination statutes were read in a way that offers no protection to gay couples.
The question my book addresses is whether religious business owners who conscientiously object to facilitating same-sex weddings—and who therefore decline to provide cakes, photography, or other services—should be exempted from antidiscrimination laws. I’ve been arguing in favor of same-sex marriage for more than thirty years, and I was an advocate on the winning side of Bostock v. Clayton County, which appropriately extended Title VII protection to LGBT people. Unlike most other gay rights advocates, however, I think that there should be such accommodation and welcome the extent to which Bostock already creates it.
I propose in the book that, in order to be exempted, the vendor be required to reveal in advance their objection, which inevitably will become publicly known in any case. That would spare the same-sex couples the wounding experience of personal rejection—or its anticipation, which is often a source of chronic stress—during what one reasonably expects to be the happy occasion of planning one’s wedding. MacLeod’s response is that, in such cases, there is no discrimination at all. The vendor is discriminating, not on the basis of sexual orientation, but rather for the conduct of engaging in a same-sex wedding ceremony.
I address this argument in the book:
The reason why discrimination on the basis of some activities, such as participation in a same-sex wedding, is LGBT discrimination, is because such participation is a near-perfect proxy for the protected class. A merchant who won’t admit customers wearing yarmulkes is discriminating against Jews. A merchant who won’t sell cakes to same-sex couples is discriminating against gay people. Protection from LGBT discrimination must rely on such proxies, because being gay is a concealable identity. Before there can be discrimination, the victim must voluntarily do something to identify herself as gay. . . .
If antidiscrimination protection of gay people has any point at all, it is to prohibit this kind of discrimination. It exists in order to remove the pressure on gay people to hide their identities. The conduct is the object of protection.
MacLeod thinks that I am arguing that discrimination law prohibits “any actions that produce disparate consequences.” That is not my claim. As I understand it—and this is not something I made up, but rather is the law, as recognized by the courts, in the jurisdictions that ban sexual orientation discrimination—the law prohibits discrimination on a basis that is a close proxy for the protected class. A butcher does not discriminate against Jews if he specializes in pork, but he does discriminate “intentionally” if he refuses to serve customers wearing yarmulkes. MacLeod thinks such refusal reveals an intention to discriminate against Jews as such, but the butcher might have no objection to ethnically Jewish persons who have converted to Christianity. This could work similarly with discrimination against Christians, who of course can also hide their identities. (Similarly with MacLeod’s hypothetical, in his response here, where “a business owner refuses service to two men who walk in holding hands.” Can’t the defendant say that he is only rejecting those who engage in the conduct of unrepentantly displaying their sexual orientation? I find it hard to imagine any case in which, given his interpretation, the statute would ever prohibit discrimination against gay couples.) One aim of discrimination law is to protect identity-constituting attachments that others find weird.
MacLeod thinks that protection of same-sex couples from discrimination reflects “the social-engineering ambitions of elite legal scholars and other powerful leftists.” But the statutes that trouble him were enacted by elected legislatures in half the states. Majorities in every state, 69 percent of Americans, think LGBT people should be protected from discrimination in jobs, public accommodations, and housing.
MacLeod thus offers a vision of nondiscrimination that is radically at odds with existing American law. (This is not a criticism. I was radically at odds with American law when I endorsed same-sex marriage in 1988.) He doesn’t believe that there need to be antidiscrimination statutes at all, or administrative agencies to enforce them. More precisely, he thinks such statutes should “be understood as declarations of common-law norms and institutions,” which would render them surplusage and without effect. Juries should decide in individual cases whether a business owner’s refusal to serve a particular customer is inconsistent with the terms of its license to serve the public. Racial discrimination, he thinks, is per se unreasonable. It is not clear that any other type of discrimination would be.
Whatever the merits of this vision as a description of the ancient common law, it would not be helpful as an approach to the present controversy. No one would know in advance what their legal rights are. Is a religious objection to same-sex marriage a good reason to refuse service, or is such discrimination “inherently wrongful” or “wrong without regard to consequences”? In a diverse society, the state should not be adjudicating that question, which shades into theological matters that the state is utterly incompetent to address. Different juries will come to different answers. This solution is not even good for the conscientious objectors, because it gives them no safe harbor. They refuse service at their peril. Given the present state of public opinion, they have every reason to worry about what juries will think. Hence I write:
Lawyers distinguish between rules and standards. A rule is clear and easy to apply: there’s no doubt about how you’re obligated to respond to a red traffic light. Standards, on the other hand, such as the injunction to drive with a reasonable degree of care, involve more discretion and unpredictability in the application. Rules are cruder, but one can be much more confident about how they will be applied. . . . When we look for a compromise here, only rules will do.
One of the harms of discrimination is the uncertainty about when it will happen. This is why it will not do to simply say that there are plenty of other bakers and photographers. The harm is not ameliorated because the injury does not invariably occur. As I write in the book:
The expectation of possible discrimination is itself exhausting. It “results in a state of heightened vigilance and changes in behavior, which in itself can trigger stress responses—that is, even the anticipation of discrimination is sufficient to cause people to become stressed.” Apprehension about probable future threats can produce an increase in physical pain, and in fact perceived discrimination is correlated with chronic pain. The mechanisms are understood. Anxiety is “negative affect based on apprehension about anticipated future threats that have uncertain outcomes.” This produces “hypervigilance” that “can result in neuro-biological changes that can result in hyperalgesia (increased sensitivity to pain).” This may be evolutionarily adaptive, because “heightened pain sensitivity allows potential threats to be detected more readily.”
Fear is one of the basic emotions. The mechanism of its arousal is based in the brain stem, a part of the neurological system we share with reptiles. The anxiety that is triggered can preoccupy a person long after the danger has disappeared. This is the most fundamental reason why threats are not protected speech.
I was writing about same-sex couples, but the point also applies to the religious conscientious objectors, who, in MacLeod’s world, would never be safe from the law. My aim is to make the world safe for both.
I’m grateful to Ryan Anderson for inviting me to respond, and giving me the chance to speak to the readers of Public Discourse. I close with what I regard as the most important thing I say in the book, one with which it’s clear that MacLeod can agree:
Conservative Christians and defenders of gay rights can despise one another’s views while respecting one another and sometimes joining as political allies. They can recognize one another’s rights to live according to their principles. Religious toleration means, precisely, that we tolerate theological views that we regard as wrong and repugnant. . . . Those theological disagreements should not be allowed to obscure the areas of agreement. Secular liberalism and conservative Christianity alike condemn lying, cruelty, poverty, oppression, and prejudice. They need to unite against their common enemies. But before they can do that, they need to end this war.
Adam MacLeod writes:
I am grateful to Andrew Koppelman for his response to my review of his book. He continues to make a good-faith effort to reason rather than disparage or demonize. Unfortunately, our disagreements are so thorough that it is difficult even for us—law professors who are experts in our fields—to achieve mutual understanding. Our difficulty is illustrative of the broader, radical moral disagreements that now divide American society. Even people who meet to reason together in good faith find discourse increasingly difficult because we have different, even incompatible, ideas in mind when we use the same or similar terms.
After reading Koppelman’s reply, I now see that his proposal is in one sense less ambitious, but in another sense more radical, than I had thought. In trying to understand Koppelman’s legal proposal, I relied heavily on passages of his book where he characterized public accommodations laws as acts of social engineering, designed to achieve certain equalities of outcome. In the book he sought to portray “the tort of discrimination” as “the artifact of social engineering that it really is.” He argued that discrimination law is “social engineering all the way down. When this has not been understood, antidiscrimination law has sometimes been distorted at the core.”
So, in my review, I took Koppelman’s view of public accommodations law to be the typical, Progressive position that discrimination law prohibits unequal effects, rather than intentional, bilateral acts of wrongdoing by one person against another person. I did not appreciate how different is his view until he mentioned the Bostock ruling in his reply. Koppelman clarifies that, while the law’s purpose is to engineer society, he is proposing a legal rule to accomplish that goal. Elsewhere, he has indicated that he wants to import the but-for causation rule from tort law into public accommodations laws, as he convinced the Supreme Court to do to employment law in Bostock.
Koppelman’s proposed innovation would alter the law no less than, and in many cases more than, a prohibition against causing disparate effects. It logically entails the end of affirmative action and preferences for racial minorities, dress codes that distinguish between men and women, maternity leave, and policies that rest in reasonable distinctions. In public accommodations contexts it logically entails the end of sex-segregated bathrooms, athletic and social clubs, and the informed discretion of medical professionals to provide care that is appropriate to a person’s sex.
Koppelman’s proposed rule is clever. But it is too clever by half. It would prohibit people from acting reasonably in the use of their own property. Consider black Christians who gathered in churches and black-owned businesses in Montgomery, Alabama in 1955 to organize the bus boycott. Suppose that, while making their plans, they excluded from the premises all white people whom they didn’t know personally out of a rational fear that segregationists would infiltrate their meetings. On the traditional reading, public accommodation law would allow those acts of exclusion. The boycott organizers are not excluding unknown people because they are white but rather because they might be segregationists. By contrast, Koppelman’s rule would hold the boycott organizers liable to the segregationists. But for the race of the excluded persons, they would not have been excluded.
Koppelman says that the function of the law is to “remove the pressure on gay people to hide their identities.” Koppelman believes that conduct serves as a “close proxy” for membership in a “protected class,” because another “aim of discrimination law is to protect identity-constituting attachments that others find weird.” But that’s not what it means to belong to a protected class. A person is not deemed black or Jewish to enable them to constitute their identity in a weird way. The classification refers to something that is both objectively true about them and not reasonably relevant to the availability of the good or service that the business owner provides. The law does not list classifications as proxies for identity-forming conduct. It uses them to refer to prohibited reasons for action—culpable intentions—on the basis of which a business owner may not act. For example, it is unreasonable, and therefore unlawful, to refuse to serve a meal to someone because he is of a different race.
Far from being “radically at odds with American law,” as Koppelman asserts (based on his reading of a handful of recent judicial opinions), that is what public accommodation doctrine has always meant, going all the way back to the common law of British North America and running through the civil rights acts of the nineteenth and mid-twentieth centuries. In our legal tradition, law is a reason for action of a particularly authoritative kind, and to work as law it must therefore operate upon the practical reasoning—in the colloquial language of the law, the “intentions” that govern actions—of those persons whose actions are to be governed by it. The whole point of law is to coordinate conduct by rightly ordering people’s reasons, which distinguish between possible actions—conduct—and determine which are legally right and which are legally wrong.
Koppelman’s proposed innovation is a radical departure from Anglo-American law. And it threatens the very possibility of the rule of law. To do its job, law must direct human reason. Conduct is relevant, but not in the way that Koppelman proposes. Conduct is very seldom a proxy for membership in a class. In almost all cases, it is its own reason. Where conduct is a proxy for an owner’s illicit reasons, that the owner acted because of conduct unique to the class is some evidence (though not always conclusive) of intentional, unlawful discrimination.
For example, Koppelman writes against my view: “A butcher does not discriminate against Jews if he specializes in pork, but he does discriminate ‘intentionally’ if he refuses to serve customers wearing yarmulkes.” But that proposition is not contra MacLeod; it is MacLeod’s view. In the case of the yarmulke embargo, unlike the case of the pork platter, the only rational factual inference is that the butcher discriminated because of—for the reason of—the customer’s being a Jew (Messianic or otherwise), and therefore with the intention to exclude Jews. It’s all about the business owner’s intention (to adapt Koppelman’s phrase) “all the way down.”
This is my answer to his charges that I have minimized the interests of sexual minorities and left them without legal protection. I haven’t. I have placed them on the same plane as racial, ethnic, and religious minorities. I would extend to them all the protections that civil rights law has long extended against intentional discrimination because of their status. Intention is a question of fact, no matter who the claimant is. If a business owner refuses service to two men who walk in holding hands, a fact finder would be justified in finding that the discrimination is because—for the reason that—the business owner believes that they are same-sex attracted, and therefore contrary to a statute that makes sexual orientation a protected class. But that law does not confer upon the men a power to compel the conscientious speech and conduct of others, any more than it confers such a power on racial or religious minorities. The law does not confer absolute trumps on claimants because it must account for the interests of all persons.
Because Koppelman misstates my reading of the law, he wrongly concludes that public accommodation statutes “trouble” me and that I am opposed to them. In fact, I have explained many times that such statutes are declaratory of the long-standing common law norms that I seek to elucidate (among other places, here, here, here, here, here, and here.) That the statutes declare the common law prohibition against unreasonable discrimination does not make the statutes themselves “surplusage and without effect,” as Koppelman supposes. To the contrary, it renders them a form of law. I used the term of art “declaratory” the same way that common-law jurists have always used it, to refer to legal enactments that specify and clarify pre-existing legal norms.
Obviously, the relatively new categories of sex and sexual orientation are not declaratory. They are, in the language of our legal tradition, remedial; they change the law. Sex and sexual orientation are the outliers, and they have been added to the law only recently. Koppelman would transform those new classifications into super-rights—trumps against any policies or laws that govern conduct that is expressive of sexual orientation and gender identity. A better understanding, more in keeping with the law, is that a person’s sex or sexual understanding by itself is not a sufficient reason to refuse accommodation, goods, or services.
Koppelman worries that an originalist interpretation of public accommodation statutes will provide insufficient legal protection to everyone, because different juries will rule differently, depending on whether an owner acted for valid reasons. But I suspect most Americans would rather take their cases to juries of their peers than to the discrimination commissions that states and cities have established in recent years. To force the sexual revolution agenda on ordinary citizens, those commissions often act like the Star Chamber, inventing findings that are contrary to the evidence, distorting the law, and misstating and disparaging the convictions of law-abiding business owners.
I endorse enthusiastically Koppelman’s plea to “end this war.” How to achieve a lasting peace is the great difficulty remaining for us. There is a lot more to say about why each of us finds the other’s solution unsatisfactory, and why each thinks his own solution is the peaceful détente that we both desire. We should not paper over important differences. But, as Koppelman demonstrates, we can discuss them in a conciliatory spirit of friendship. And for that, we should be thankful for his book.