Do laws against discrimination themselves discriminate? They might: When religious teachings include belief in a natural patriarchal order, hostility toward non-believers, and condemnation of homosexuality, anti-discrimination laws can conflict with rights to religious liberty, broadly defined. The Supreme Court confronted such a conflict in Masterpiece Cakeshop v. Colorado Civil Rights Commission—a case involving a devout Christian baker, Jack Phillips, who refused to make a wedding cake for a same-sex couple, Charlie Craig and Dave Mullins. The couple and the Colorado Civil Rights Commission argued Phillips discriminated on the basis of sexual orientation. Phillips countered that forcing him to create a cake that celebrated same-sex marriage would discriminate against him because of his religion, violating his rights to free exercise of religion and freedom of expression. Last week, the Court sided with Phillips in a narrowly worded opinion that was virtually limited to the specific facts of this case, disappointing advocates of both gay rights and religious liberty. But the Court had few good options in Masterpiece Cakeshop because overly broad conceptions of civil rights protections have turned these important laws against themselves, like an overactive immune system that consumes its host.
To understand how this has happened, we need to compare the expansive idea of discrimination (and of religious and expressive liberty) at work in Masterpiece Cakeshop with an older, more workable conception. (There are, of course, very important doctrinal distinctions between free exercise, freedom of expression, equal protection and statutory anti-discrimination doctrine, but each has borrowed from and influenced each other in important ways. More to the point, Justice Kennedy analyzes the dispute in Masterpiece Cakeshop primarily through an anti-discrimination lens, focusing on evidence that the Colorado Commission acted with hostility toward religion.) The core idea of traditional anti-discrimination law is to prohibit discrimination on the basis of some ascribed status: Race is the paradigmatic example, of course, but sex, religion, national origin, age, and disability can all be thought of as social statuses that trigger prejudice and irrational discrimination. Obviously, most forms of behavior aren’t covered: Government is free to “discriminate” against pot-smokers, brawlers, and embezzlers; likewise employers who “discriminate” against tardy, belligerent, or dishonest employees are in the clear, legally speaking.
Of course, the status of being a religious adherent is inseparable from religious beliefs and practices, so to some extent anti-discrimination law must prohibit discrimination based on religiously based behavior. But until recently, courts have been careful to limit such anti-discrimination strictures in order to allow government and the private entities regulated by anti-discrimination laws the freedom to establish common norms of behavior unless those norms were designed to exclude or oppress religious groups.
Unsurprisingly, civil rights advocates, from both the multiculturalist Left and the religious Right, have attempted to expand the areas where the law prohibits discrimination based on behavior: the latter by arguing for broader definitions of religious practice and the former by drawing analogies that would apply the religiously based protections to a greater number of groups not defined by religion as such. For instance, as far back as the early 1990s, some multiculturalists and racial justice advocates have insisted that the definition of race discrimination should include discrimination because of racially associated traits and culture, so that employers, landlords, and government officials would be required to accommodate vaguely defined racial cultures just as they had to accommodate narrowly defined religious practices. These claims inspired and emboldened advocates of religious liberty to expand the definition of religious practice to include any action or refusal to act motivated by religious conviction—so that in a sense the narrow, workable idea of religious practice metastasized to become an unwieldy notion of a religious culture.
This strategy paid off in 2014’s Burwell v. Hobby Lobby, where the Court insisted that the free exercise of religion entitled an employer to refuse to comply with an otherwise valid health insurance mandate that covered forms of birth control that some religious faithful believe—against the weight of scientific evidence—induce abortion. On top of all this, the number of groups that enjoy protection from discrimination is also growing, for both good and questionable reasons. As to the good, not-so-long ago “gay rights” were a new frontier of anti-discrimination law; today we refer to the “LGBT” community, which indicates both an expansion of the size of the group and the scope of legal protection due to it. With respect to the questionable, state and local anti-discrimination laws increasingly prohibit discrimination because of things like height and weight, and a growing chorus of voices advocate new laws outlawing discrimination based on “appearance”—a category that can include both inherited physical characteristics and freely chosen ones shaped by attire and grooming.
Many of these new civil rights protections make sense in isolation, but in combination they constitute a recipe for unresolvable conflicts of absolutes. Overly broad religious liberties will inevitably clash with LGBT rights and with women’s rights, as in Hobby Lobby. As for the project to prohibit “cultural discrimination”—which inspired and was in turn inspired by the aggressive expansion of expressive and religious liberty—it is downright incoherent: Law—including civil rights law—is the product and reflection of culture; therefore all law discriminates on the basis of culture, enforcing some cultural norms at the expense of others. In his majority opinion in Masterpiece Cakeshop, Justice Kennedy complained that the Commission’s decision to reject Phillips’s request for a religious exception to the state’s anti-discrimination law was “based on a negative normative evaluation of the particular justification for [Phillips’ refusal to make the wedding cake] . . . and the religious ground for it.” But because all legal prohibitions are based on “a negative normative evaluation” of the conduct the law prohibits, this objection is really no objection at all.
Anti-discrimination laws necessarily discriminate on the basis of attitudes and views. They condemn bigoted, intolerant, and exclusionary beliefs and punish those who would act on such beliefs. To be sure, what counts as bigoted, intolerant, and exclusionary has and will continue to change along with changes in our culture, but once society and the law settle on a norm—as we seem to have done with respect to same-sex couples—we should defend and enforce it unapologetically. It’s a sign of today’s embattled, confused, and uncertain liberalism that we would try to tolerate intolerance, include exclusion, and outlaw discrimination against discriminators.
A resolute, coherent, and self-confident anti-discrimination norm requires that we define the scope of anti-discrimination rights both clearly and relatively narrowly, limiting civil rights protection to the most compelling cases. A good way to do this is to focus on the kinds of discrimination that reinforce deep and destructive social prejudices against vulnerable groups that are disadvantaged in the market and conventional majoritarian politics. This suggests greater protection for minority religions that suffer from stigma and stereotypes, such as Judaism and Islam; less for the religious majority—namely mainline and Evangelical Protestants (and I say this as the child of a Presbyterian minister.)
This doesn’t necessarily mean that Jack Phillips should be forced to bake cakes for same-sex nuptials. But if he shouldn’t, the reason can’t be that Colorado’s anti-discrimination law discriminates against discriminatory religious practices. It must be for more contingent, practical reasons. For instance, although University of Chicago Law Professor Richard Epstein has wrongly argued that religious liberty demands a broad, general exception to anti-discrimination laws, he makes a reasonable argument that in this case, with scores of other bakeries in town competing for Mr. Craig’s and Mr. Mullins’s business, they suffered little if any real injury—and after all, who wants someone theologically opposed to the union involved in their wedding?—while by contrast Phillips clearly had a sincere and personal religious motive for refusing to make a statement in favor of same-sex marriage (even if that statement took the form of a baked confection.)
But this is really a contextual weighing of costs and benefits disguised as an argument from first principles—it’s the kind of nuts-and-bolt analysis that rights talk, Constitutional law, and appellate courts can’t help us with. So it is with many of the normative and cultural conflicts now ill-advisedly fought out under the obfuscatory rubric of deontological rights. Anti-discrimination law doesn’t have to discriminate if we are discriminating in how and when we use it.