The rubber for the marriage movement will meet the road on the issue of religious liberty. By conceding to “social harm” and “social meaning” arguments, Anderson and Girgis make it more difficult to defend religious liberty against anti-discrimination laws.
Ryan T. Anderson is perhaps the most indefatigable culture warrior today. After occupying the front lines in the same-sex marriage debates, his latest works focus on the future of religious liberty. His Truth Overruled: The Future of Marriage and Religious Freedom and his co-authored Debating Religious Liberty and Discrimination lay out the challenge for those who would defend religious liberty under the legal regime of contemporary liberalism.
Anderson’s mission in the first book is to establish the truth on matters of marriage and to provide a blueprint for how those who would re-establish that truth in law and culture should proceed. Obergefell (2015), which found that states must recognize same-sex marriages, is when the “truth” about marriage was “overruled.”
Anderson sees the pro-life movement as a model for the marriage movement. A pro-life movement formed to oppose Roe v. Wade (1973). It continues to be a vibrant, essential part of the conservative coalition almost fifty years later. The marriage movement existed before Obergefell, and Anderson believes it can and must remain a vital part of a political coalition so that its arguments are taken seriously in the halls of power.
The rubber for the marriage movement will meet the road on the issue of religious liberty. This issue was amply on display during the same-sex marriage debate. Justice Samuel Alito asked Pres. Obama’s Solicitor General about the implications for religious organizations if the Supreme Court constitutionalizes same-sex marriage during Obergefell’s oral arguments. “It’s certainly going to be an issue. I don’t deny that. I don’t deny that” was his answer. Many churches and institutions run by the faithful will not, as a matter of conscience, recognize same-sex marriages or perform services to promote them, but some or many may be made to comply.
CORVINO’S CENTRAL CONTENTION IS THAT DISCRIMINATION AGAINST SAME-SEX COUPLES CONSTITUTES A “DIGNITARY HARM.”
Truth Overruled (among other things) sets the essential problem for Debating Religious Liberty and Discrimination. This second book takes on the form of a dialogue between John Corvino (a somewhat moderate advocate for forcing religious organizations to end discrimination against same-sex couples) and Anderson and Sherif Girgis (arguing for a religious conscience exemption from such a mandate).
Corvino sets the terms for the debate with his opening argument. Corvino’s central contention is that discrimination against same-sex couples constitutes a “dignitary harm.” A dignitary harm is “the harm involved in treating people as having less than equal moral standing”—wearing a badge of servitude. As an example of a dignitary harm, Corvino tells a story from the wedding “cake wars.” A lesbian customer shopping for a wedding cake is told that the proprietor will not bake such a cake for her—and her joy turned into humiliation. The shop is rightly if perhaps excessively, in Corvino’s view, fined $135,000 for this dignitary harm.
Actions like marriage are “constitutive of identity” and when others do not affirm that identity, victims are deprived of the social affirmation that makes identity possible. Seemingly private actors commit grave public wrongs when they discriminate against the identity choices of others. Perhaps Christian cake-makers are affronting the dignity of the homosexuals, just as Jim Crow segregators are affronting the dignity of the African-American.
Anderson and Girgis (henceforth our authors) have a remarkable rejoinder to Corvino’s argument, one that cuts one way and then another. First they show that anti-discrimination laws based on dignitary harms run afoul of classical liberal principles and should be looked at with extreme prejudice. Second, they concede something akin to dignitary harms and seek to cabin them. They engage in the second exercise, it appears, because the first exercise seems to allow for actions based on racial subordination. This concession, I believe, makes defending religious liberty from claims of discrimination much more difficult and controversial.
First, anti-discrimination laws based on dignitary harms form the basis of what our authors dub, in the title of their essay, a “new puritanism.” All sides “could claim with equal force that a decision against them would morally stigmatize them.” The cake-baker may offend the lesbian couple who ask that that a cake be baked for them, just as the cake-baker would be stigmatized by the claim of a human rights commission that their view is bigoted. Liberalism deals with claims and counter-claims of offense through an open exchange of opposing moral views and actions (and our authors support this view with a compendium of arguments drawn from John Stuart Mill’s On Liberty). People should be generally “free to deal with others on their own terms, by their own lights.” This argument seems to point to the end of anti-discrimination laws.
Then our authors grant an exception, conceding that private treatment of a particular groups can impose social harms. Social harms, somewhat resembling dignitary harms, for our authors, “consist of cultural ideas and attitudes unfairly impugning a group’s abilities, character, proper social status, and moral worth.” There is a social harm, when a reasonable observer would think that a refusal of service was motivated “by a group’s perceived inferiority or incompetence.”
HOW ARE DIFFERENT ARGUMENTS OVER SOCIAL MEANING TO BE ADJUDICATED POLITICALLY AND LEGALLY?
If the social and material harms can be mitigated without law, all the better; if not, the law must be invoked. Only if remedies are narrowly tailored to right social harms can they survive our authors’ scrutiny. Laws must only aim at wrongful discrimination, not seek social transformation. Important civil freedoms such as freedom of speech and conscience must be respected. Discrimination needs a precise definition. “The case of banning discrimination against African Americans could not have been stronger” under this test, our authors say. That was certainly true in 1890 or 1964, but is it still true today? If not, would our authors think laws prohibiting racial discrimination should be repealed?
However that may be, Sexual Orientation and Gender Identity (SOGI) laws are, for our authors, a different animal. The “social meaning” of the cake-baker’s refusal to serve is much different than the “social meaning” of the segregationist’s separate lunch counter. Our authors try to prove just this point through an analysis of the social meaning of the cake-makers refusal. Few SOGI law advocates would dissent from the method of our authors. They would dissent from our author’s analysis of social meaning: our authors see the cake-baker’s conscience and the Christian tradition implicated while SOGI law advocates see homophobia. How are different arguments over social meaning to be adjudicated politically and legally? How are they affected by the prevalence of our “new puritanism”?
This concession to “social harm” and “social meaning” opens a door that Anderson and Girgis may not be able to close. The problem of cabining this analysis is complicated by the way our authors treat the question of what motivates those who do not act in accordance with full respect to our regime of sexual diversity. “No one,” our authors write, “should be put to shame or marginalized for the shape of their (sic) sexual desires or their (sic) gender identity, any more than for their (sic) race.” Our authors consider it “an important goal” to put the “power and prestige of the law, and the threat of civil penalties, behind the ideal of social equality.” My guess is that once these two points are granted, the cause of religious liberty is well more than half lost. Our authors try to save it despite these concessions.
Their first iteration—the argument against anti-discrimination laws—is a worthy long-term goal for those interested in preserving religious liberty and all species of liberty in the modern world. Having anti-discrimination laws are quite suspect on liberal principles. Taking on anti-discrimination laws could yield results that would protect the bakers and other religious believers from a new puritanism. SOGI laws are indeed blunt, partisan instruments with heavy social costs.
Once the ground of the public argument concerns social meaning, no matter how good an argument our authors have, they will have a difficult time carrying the day. Why should there be anti-discrimination laws for most minorities but not for homosexuals who would marry? Corvino has a powerful point here—one that points to the illiberal character of anti-discrimination laws generally and one that our authors ably call into question before unwisely conceding.
Scott Yenor is Professor of Political Science at Boise State University. He is the author of Family Politics: The Idea of Marriage in Modern Political Thought (Baylor 2011) and Hume’s Humanity: The Philosophy of Common Life and Its Limits (Palgrave 2016).