Uncluttering the Ground between the Trenches

Yesterday I discussed Andrew Koppelman’s proposal for achieving peace in the entrenched conflict between LGBT identity claims and civil liberties such as religious freedom and private property. Koppelman rightly prefers legislative compromise over the totalizing judgments of discrimination commissions and appellate courts. But as I explained, common-law institutions such as licenses and juries are able to resolve civil rights conflicts with more nuance and justice than generally-applicable, public-law rules such as Koppelman proposes, which would require religious minorities to invite harassment in order to obtain exemptions from laws requiring them to violate their conscience.

Today I clear some conceptual ground that remains cluttered despite Koppelman’s good-faith efforts. Koppelman has not accurately stated important, fundamental convictions of religious liberty proponents concerning the character of moral reasoning and the nature of law. As I have argued elsewhere, we must first achieve genuine disagreement before we can hope to reach agreement. I hope that Koppelman will accept today’s essay as an effort in the right direction.

Moral Reasoning without Consequentialism

Koppelman begins with a meaningful gesture of good faith. He acknowledges that Christian wedding vendors do not discriminate for the reason of others’ sexual orientation and gender identity; they are not motivated by anti-gay animus. In the less precise language of the law, they do not discriminate intentionally. This is an important point, which many cultural elites studiously ignore. Christians are willing to serve everyone.

That should be the end of the matter. When correctly understood as declarations of common-law norms and institutions (about which more below), public accommodation statutes do not require people to participate in or endorse same-sex weddings. They only prohibit discrimination because of a prohibited reason, such as race or sexual orientation.

Nevertheless, Koppelman thinks that Christian vendors should be required to qualify for an exemption from non-discrimination laws in order to avoid liability. He reads such laws to cover any actions that produce disparate consequences. The purpose of non-discrimination norms in morality and law, he argues, is to avoid widespread, bad outcomes for minority groups. The promulgation of non-discrimination norms is “social engineering all the way down.”

That is one view, but it is far from obviously correct. Many people hold the different view that culpable, intentional discrimination is wrong without regard to consequences. Whether or not a minority group is better off after an act of intentional discrimination against one of its members, the discriminating person has committed a wrong against another person. Furthermore, if a business owner acts for some reason other than the customer’s status in a minority group, that action is not inherently wrongful just because the person is part of a minority group.

Koppelman misstates this view, revealing a misunderstanding that leads him to portray it as a distortion of non-discrimination norms. “The wrong of racial discrimina­tion, for example, comes to be seen as a kind of damage to the souls of white people when they act with impure hearts,” he suggests, and the harmful but unintended effects of market inequalities, such as unemployment, “substandard housing, and disproportionate incarceration all disappear from view.” But unjust discrimination is not simply an injury to the racist’s soul or character (though it is that), nor is it primarily the production of inequalities of result. It is also and primarily a wrong against another human being. Both the racist and the wronged person share a genuine common good: the good of legal justice. The racist damages that good by his wrong act, whether or not the wronged person as a result of that act finds better employment, opportunities, or services elsewhere.

Marriage as a Man-Woman Union

Koppelman correctly perceives that the wedding vendor cases have become zero-sum humiliation contests. Same-sex couples face the indignity of being turned away from a Christian business; Christian business owners face the indignity of being branded as bigots. And he appreciates the moral seriousness of Christians who are willing to lose businesses and reputations rather than affirm what they understand to be a morally significant falsehood.

Nevertheless, Koppelman fails to perceive why Christian vendors articulate their claims in terms of free expression and conscience. He argues that free speech protections are irrelevant because baking cakes and selling flowers are not expressive actions. If a baker is willing to sell a wedding cake to a man-woman couple, Koppelman thinks, he is not compelled to communicate a falsehood if he is coerced also to sell the “same product” to a man-man couple. Here again, Koppelman misses something important.

Koppelman thinks that Christian vendors object to same-sex marriages. (And he thinks such opposition is mistaken and bigoted.) But that’s not what is happening. Christian vendors do not believe that a same-sex union is a marriage. And, in most cases, their conscience informs them that all sexual intimacy outside of marriage causes moral harm.

Conscientious business owners are not distinguishing between acceptable marriages and unacceptable marriages. They distinguish between marriage and non-marriage. Their objection is not that marriage is inherently religious, as Koppelman supposes, but that marriage is inherently a man-woman union. And despite the contrary assertions of Koppelman and five lawyers who work next to the Library of Congress, millions of Americans have reasons to believe that natural marriage is sui generis.

Many of those reasons are religious. Other reasons are secular and available to everyone, such as the fact that the definition of marriage as a man-woman union has rational limiting principles, while other definitions do not. And some reasons are grounded in fundamental law, such as the fundamental right of a child to be connected to her own parents, and the presumption in favor of parental custody.

Koppelman’s confusion causes him mistakenly to analogize the wedding vendor cases to racial discrimination (though he ultimately concludes that the analogy is misleading because “[r]eligious heterosexism” is “generally nonviolent” and can be accommodated with exemptions). But his confusion is most apparent in his analogy to airbag laws. Laws that require auto manufacturers to install airbags, over the manufacturers’ objections, cannot reasonably be understood to compel auto manufactures to communicate moral approval of airbags. Similarly, he reasons, laws compelling Christians to sell goods and service for same-sex weddings do not force them to communicate approval of “same-sex marriage.” But whether the wedding celebrates a marriage in fact is precisely what is at issue.

We all understand what an airbag is. People genuinely disagree about what marriage is.

From the perspective of the Christian vendors, the redefinition of marriage is an elaborate and morally freighted lie (not the first foisted on the American people by the Supreme Court). And it unjustly tarnishes them. They are coerced to ratify a proposition that renders their moral objection inarticulable as anything other than animus against gays and lesbians, though they have no animus.

Several important implications follow from this. If marriage is rationally conceived as a man-woman union, then the Christian vendors are not discriminating because of the customer’s homosexuality, and so are not violating the law, and so do not require an exemption. Their conduct is in no way analogous to racial discrimination. Also, state discrimination commissions are coercing them to communicate a proposition, one that is false and that unjustly makes them look like bigots. And, as I showed yesterday, they are being discriminated against relative to non-religious vendors.

Koppelman does not think that the arguments in favor of defining marriage as a man-woman union are rational. But his failure (in this book) to consider the reasons why others disagree leads him to misstate the true nature of the vendors’ moral objection.

Common Law and Natural Rights as Law

Koppelman understands that the posture of American law leans toward a presumption of liberty, and that property owners, like everyone else, are entitled to a presumption of innocence until they are proven to have committed a legal wrong. However, for Koppelman these presumptions are contingent on the social-engineering ambitions of elite legal scholars and other powerful leftists. This undefended assumption turns his discussion of property and religious liberty law upside down and backwards from the perspective of those in the religious liberty trench.

Koppelman adopts the view of post-modern property professors, such as Joseph Singer, that property law is entirely a product of posited rules and judicial decisions. (The same problem afflicts his discussion of religious liberty.) On that view, majority factions and judges craft property rights and duties, which are contingent on their decisions. Koppelman does not acknowledge, much less address, the founding conception of property rights as real rights, which are specifications of customary and natural law, and which are not infinitely malleable, consistent with reason. It seems Koppelman does not think that customary law and natural rights generate legal obligations. But the Founders did, and many people today read American constitutions and laws according to their original meaning as declarations and specifications of common-law and natural duties.

Koppelman and Singer want to reduce property law to an instrument of the Left. They hope to redraw the line between private and public property to prevent property owners from causing dignitary harms to sexual minorities. They would thus make property rights subservient to, and contingent on, particular equalities of result (while generating other inequalities, such as the burdens on conscience, investments, and political freedom). But this would be a radical transformation of property, for the law runs the other way around. Property comes first, and public accommodations doctrine is derived as an aspect of it.

Koppelman also fails to acknowledge that property rights have important securities for equal justice built into them. He asserts that, absent posited statutes, the common law leaves owners free to refuse service for “any reason or no reason.” But that is contestable (and I think it is false). He might have consulted William Blackstone, James Kent, Thomas Cooley, John Marshall Harlan, William Douglas, or Arthur Goldberg on real property licenses, common carriers, and the writ of assumpsit. But he seems to think of common law not as law but as the absence of law.

The public’s license to enter a business or nonprofit and to seek goods and services there is one instance of a real property license, and nondiscrimination rules are declaratory of the common law governing such licenses. Public accommodations licenses are particular specifications of general property privileges, carved out of an owner’s estate by the owner’s own volitional conduct when she opens her business to the public for particular purposes.

In general, the owner’s business purposes determine the contours of a license. When an owner’s reason for refusing entry or service (race, for example) is per se irrelevant in light of her purposes, she has exceeded her power to exclude as a matter of reason—of what the jurists call “natural law.” Thus, public accommodations licenses are products of ancient customary law, natural law, and the owner’s volitional acts of private ordering, before the first statute is enacted.

So, public accommodations privileges are not twentieth-century inventions. They were not even invented by the Republican-controlled, Reconstruction Congress in 1875. They are, as many jurists have explained over the years, declaratory of long-extant, common-law limits on the civil liberties of owners, which owners impose on themselves when they open for business.

To make property rights subservient to leftist ends is to overthrow the practical wisdom that went into shaping property rights over the course of many centuries, including that which secures civil liberties. It is also to threaten other, liberal values that property secures, such as political equality and personal autonomy. Koppelman seems not to notice that his conception of property as a pure creation of posited laws and judgments places those values in jeopardy. But he perceives that they are at stake and he seems genuinely interested in preserving them.

Koppelman is trying to coax civil rights combatants out of their entrenched positions in part because he wants to preserve civil liberties for all. In our illiberal age, this is remarkable. The book might not go as far as religious liberty proponents would like. But it is a commendable start.