With nationwide same‐sex marriage now in its pocket, the gay‐rights movement is turning quickly to the next item on its agenda: outlawing discrimination based on sexual orientation. That is where many libertarians who strongly supported same‐sex marriage step back for a more measured approach. It is one thing to prevent government officials from discriminating against same‐sex couples — that is what equal protection is all about — quite another to force private individuals and organizations into associations they find offensive.
The law here is unsettled, especially as the constitutional right to the free exercise of religion is pitted against various statutory rights to be free from discrimination. The Supreme Court muddied those waters in its same‐sex marriage decision last month. Writing for the majority in Obergefell v. Hodges, Justice Anthony Kennedy merely mentioned in passing that religious adherents would continue to be free to “advocate” and “teach” their beliefs. Conspicuously absent, as dissenting justices noted, was any mention of the “exercise” of those beliefs.
Meanwhile, conflicts are increasing as the LGBT community presses its agenda. As Americans prepared to celebrate the Fourth of July, Oregon Labor Commissioner Brad Avakian ordered bakery owners Aaron andMelissa Klein to pay a lesbian couple $135,000 for “emotional damages” because the Kleins, citing their religious beliefs, had declined to bake a cake for the couple’s wedding.
The week before, Cynthia and Robert Gifford, a Christian couple in upstate New York who own a small farm open to the public for seasonal activities, filed an appeal with the state Supreme Court. They were fined $13,000 last year by the New York State Division of Human Rights for declining to host a same‐sex wedding. The Giffords were also ordered to implement “antidiscrimination training and procedures” for their staff — re‐education, in effect.
How did we get to this point? Freedom of association — the simple idea that people are free to associate, or not, as they wish — certainly isn’t what it once was.
We’ve never had that freedom in its purest form, but the main restraints were once limited and reasonable. Under common law, if you held a monopoly or were a common carrier like a stage line or railroad, you had to serve all comers. If you represented your business, an inn for instance, as “open to the public,” you had to honor that, though you didn’t have to serve unruly customers and could negotiate what services you offered.
These rules left ample room for freedom of association more broadly, albeit with serious exceptions like Jim Crow, the deplorable state‐sanctioned discrimination enforced by the heavy hand of government.
Forced association of the kind at issue with the Kleins and Giffords is a product mainly of the civil‐rights movement of the 1960s. Believing, probably correctly, that the only way to break institutional racism in the South was to prohibit public and private discrimination, Congress passed civil‐rights laws that forbid discrimination in wide areas of life on several grounds — such as race, religion, sex or national origin. States have also passed such laws, including those that in many jurisdictions now prohibit discrimination on the basis of sexual orientation.
But uncertainty arose concerning the relation between those laws, plus others, and religious liberty. Could a state withhold unemployment benefits from a Native American who used peyote — an illegal drug — for religious purposes? Hoping to resolve such questions, a nearly unanimous Congress passed the Religious Freedom Restoration Act in 1993. Twenty‐two states have since passed similar laws, but the issue remains vexed. Witness the Supreme Court’s decision a year ago upholding Hobby Lobby’s challenge to ObamaCare’s contraceptive mandate, and the uproar over Indiana’s religious freedom restoration act a few months ago.
The question at hand, then, is whether and how modern antidiscrimination laws limit the constitutional and statutory right to the free exercise of religion. Even after Obergefell, there are clear cases — on statutory, to say nothing of constitutional grounds — in which religious liberty will trump antidiscrimination claims. Clergy opposed to same‐sex marriage surely will not be forced to perform or open their facilities to such ceremonies, although some in the LGBT movement are already pressing for churches to lose their tax‐exempt status if they do not.
The public‐accommodation cases are closer calls. Because they represent their businesses as open to the public, the Kleins and Giffords shouldn’t be able to deny entrance and normal service to gay customers — and neither has done so. If a same‐sex couple had walked into that bakery hand‐in‐hand and ordered bagels, they would have been served without objection. But it is a step further — and an important one — to force religious business owners to participate in a same‐sex wedding, to force them to engage in the creative act of planning the event, baking a special‐order cake for it, photographing it, and so on.
No one enjoys the sting of discrimination or rejection. But neither does anyone like to be forced into uncomfortable situations, especially those that offend deeply held religious beliefs. In the end, who here is forcing whom? A society that cannot tolerate differing views — and respect the live‐and‐let‐live principle — will not long be free.