Religious Liberty and Same-Sex Marriage: The Contemporary Conflict

The Supreme Court’s decision in Obergefell, striking down state prohibitions against same-sex marriage, raised concerns about religious liberty. Prior to the Court’s decision, there were conflicts in a number of states between same-sex couples and businesses that declined, for religious reasons, to provided services to same-sex ceremonies. In Colorado and Oregon, bakeries declined to create a wedding cake for a same-sex ceremony. In New Mexico, a photographer stated that her business did not photograph same-sex ceremonies and a florist in Washington similarly refused to arrange flowers for a same-sex ceremony. A number of states have passed Religious Freedom Restoration Acts that seek to preserve an individual’s ability to act on the basis of their religious beliefs in commercial settings. ^{Footnote 21} These cases have grabbed national headlines, suggesting a clash between religious liberty and the civil rights of same-sex couples. Some proponents of same-sex marriage deny that religious liberty is truly at stake, while some advocates of traditional religion insist that equality cannot trump individual conscience in these cases.

I focus on cases where the business itself has no religious affiliation and is open to all comers and where the owners, for religious reasons, specifically declined to serve the same-sex couple precisely because they were having a ceremony that celebrated their commitment or marriage. ^{Footnote 22} These cases are quite different, I argue, from cases where the institution itself is a religious institution or has a primarily religious function, mission, or association. These are cases where it is exquisitely clear that the refusal of service is rooted in religious objections to the same-sex nature of the ceremony; it is this that provides the grounds for religious objections to “participation” in a marriage at odds with their religious beliefs. It is also the religious nature of the objections that trigger a Free Exercise or RFRA claim against public accommodations laws.

Consider, first, the Oregon and Colorado cases where bakeries refused to make a cake for a same-sex ceremony. In 2013, a lesbian woman and her mother arrived for a scheduled tasting at Sweetcakes by Melissa, a bakery that a few years earlier had made a wedding cake for the mother (which was purchased by the bride and her partner). As the co-owner of the bakery began working through the details, he asked what the names of the bride and groom were. The woman replied that it was actually two brides, that the cake was being arranged for the lesbian couple’s commitment ceremony (same-sex marriage was not lawful at the time in Oregon). On hearing this, the owner apologized and politely stated that they did not make cakes for same-sex couples because it “goes against our religion.” ^{Footnote 23} In a later exchange initiated by the mother of the bride, when the bride-to-be had left the shop, the owner quoted Leviticus 18:22: “You shall not lie with a male as one lies with a female; it is an abomination.” ^{Footnote 24} Soon after the incident, the couple filed an Oregon Department of Justice Consumer Complaint Form describing a refusal of service because of sexual orientation (though mischaracterizing just how the events unfolded). The lesbian couple then filed a formal complaint against Sweetcakes by Melissa with the Oregon Bureau of Labor and Industries (BOLI) for refusing them service because of their sexual orientation. At one point, Sweetcakes posted a sign in its window saying it was still in business: “The fight is not over. We will continue to stand strong. Your religious freedom is not free anymore. This is ridiculous that we cannot practice our faith anymore.” ^{Footnote 25}

A BOLI investigation found that Sweetcakes had discriminated in violation of Oregon law, refusing to serve the couples because of their sexual orientation. As a “public accommodation,” the owners of the bakery denied equal access to the complainants based on their sexual orientation and were therefore liable for violating Oregon law, which prohibits public accommodations from discriminating on the basis of sexual orientation. The BOLI then ordered Sweetcakes to “cease and desist” such discrimination. News sources reported that BOLI had forbidden the owners of Sweetcakes to speak on the issue. But the administrative order was not aimed at the personal speech of the owners. It prohibited the business, as a business, from publically advertising on its storefront that, in violation of Oregon law, it would not serve gay couples. The BOLI commissioner applied the Oregon statute only to the business, which was insisting that even as a public accommodation it would not “participate” in same-sex ceremonies. The owners were free, as individuals, to speak out against same sex marriage and insist on their religious beliefs in the public square. They were also free to engage in their religious practices as religious practices. But they were not free, as a business open to the public, to discriminate against same-sex couples. Nor were they free, as a business, to advertise that they would not serve same-sex ceremonies in violation of the law. ^{Footnote 26}

A similar incident occurred in Colorado: the owner of Masterpiece Cakeshop refused to make a cake for a same-sex celebration, citing his religious beliefs. In this case, the owner compared it to making a cake “for a pedophile.” Colorado law prohibited discrimination in public accommodations based on sexual orientation and the Colorado Civil Rights Commission ordered Masterpiece Cakeshop to change its policy with regard to public accommodations. In New Mexico, Elane Photography declined to photograph a lesbian commitment ceremony because of the husband and wife’s religious beliefs. Like Oregon and Colorado, New Mexico prohibits public accommodations from discriminating on the basis of sexual orientation. The New Mexico Human Rights Commission found discrimination on the basis of sexual orientation, ordered Elane Photography not to discriminate on this basis, and found that it was not entitled to an exemption from public accommodation’s requirements based on the religious beliefs of its owners. The commission also rejected a claim that serving same-sex couples violated the photographer’s free speech (which I will partly take up later). The Supreme Court of New Mexico unanimously upheld the commission’s findings.

Finally, in surveying a handful of the most prominent conflicts, a Washington State florist similarly raised the issue of free speech and artistic freedom in declining to do a floral arrangement for a same-sex wedding ceremony. In an editorial in The Washington Post, Barronelle Stutzman defended her decision on the basis of artistic expression. She was happy to do various flower arrangements for the customer and had served many gays and lesbians over the years (many of whom were friends). Yet, as she wrote defending her position in the Washington Post, a commitment ceremony or wedding suggested she was communicating approval of same-sex relations. As she put it, “in my religious tradition, marriage is a sacred religious ceremony between a man, a woman and Christ. It’s a covenant with the church. To participate in a wedding that violates those principles violates the core of my faith.” ^{Footnote 27} Noting the public accommodations aspect of the complaint, Stutzman rhetorically asked if she was only free to be a Christian in the “four corners of her own home?”

I think the answer to that question is no. But I argue that such an answer is compatible with the decisions of the states discussed here to require public accommodations to serve same-sex couples. The states in question did not apply non-discrimination laws to distinctly private organizations, such as churches and religious schools. And, indeed, many states, like the federal government, deliberately exempt religious institutions from complying with non-discrimination laws. The businesses implicated here were open to the public at large and had no religious affiliation. These cases are profoundly different from the Catholic school in Pennsylvania that fired its director of religious affairs because she married a woman in violation of the school’s distinctly religious commitments. I suggest that this distinction, and the necessity of public accommodations to be open to all comers, is essential to maintaining equality of opportunity in the marketplace and liberal tolerance between citizens (which is the cornerstone of a durable religious liberty in a plural society).

Public Accommodations and the Commercial Republic

In the American context, individual guarantees of liberty and equality are often seen as protected against the state and only against the state. The First Amendment guarantee of religious liberty commands “Congress shall make no law” and the Fourteenth Amendment guarantees of due process and equal protection command “no state shall.” ^{Footnote 28} This line of thinking led the Supreme Court to reject The Civil Rights Act of 1875, which prohibited racial discrimination in “public conveyances” in an effort to fulfill the promise of equal citizenship in the recently passed Fourteenth Amendment. In The Civil Rights Cases of 1883, considering the constitutionality of the Civil Rights Act, the Court held that Congress could not prohibit racial discrimination in privately-owned theaters, restaurants, inns, and other businesses open to the public as such discrimination was deemed “private action.” The guarantees of liberty and equality protected by the Fourteenth Amendment, along with the privileges and immunities of citizenship, much like the guarantee of religious liberty protected by the First Amendment, only applied to “state action.” In the idiom of comparative constitutionalism, liberty and equality are only protected vertically (against the state) and not horizontally (against fellow citizens).

There is some truth to this. The relationship between citizens and the state is quite different than the relationship between citizens. The liberal state is certainly prohibited from acting in ways that your fellow citizens are not. Yet this stark distinction fails to capture the importance of public accommodations in a commercial republic, which are rather different than “private action.” The idea that the Constitution only protects citizens against formal state action has been under pressure since its inception. Not only have constitutional thinkers long recognized that liberal principles like equality and religious liberty depend on the ideas and understandings of citizens, but they have also recognized that the state may have to act in a positive manner to secure the civic conditions that provide for liberal flourishing. ^{Footnote 29} In this regard, in American constitutional law there has long been a sense that Justice John Marshall Harlan captured something essential to the nature of American constitutionalism in his dissent in the Civil Rights Cases, which I take up momentarily. But consider that the Court has negotiated around the formality of “state action,” by insisting that if it were to enforce a restrictive covenant—that is, an agreement among property owners to exclude certain persons from buying their property on the basis of race, ethnicity, or religion—that would be a form of “state action.” The Court did not long stick to this distinction, as it upheld Title II of the Civil Rights Act of 1964, which prohibited discrimination in a range of public accommodations on the basis of race, religion, and ethnicity as a regulation of interstate commerce. ^{Footnote 30} But in a real sense, there has always been the lingering feeling that what Congress was doing—and rightly doing—was prohibiting certain forms of “private” discrimination as part of securing the equal citizenship guaranteed by the Fourteenth Amendment: Without such prohibitions, citizens would not truly be equal. Their civic liberty would ring hollow, as they could not be equal participants in American life.

And yet there is also something appropriate about regulating commerce insofar as liberal order has long been linked to commercial life. Not only was commercial activity a way of softening religious conflicts, but forging a private life within a liberal framework requires the ability to engage in commercial activity. Thus while liberalism, at a very general level of abstraction, is rooted in a conceptual distinction between private and public space—particularly with regard to political and theological authority—the two spheres are dependent on one another. As Macedo argues, public values such as toleration need “the support of private beliefs.” ^{Footnote 31} And individuals need to find privately held commercial businesses open to them. Yet commercial activity—and the sort of self-interest it induces—has civic benefits: It helps facilitate harmonious relations between citizens in a pluralistic community. ^{Footnote 32} And commerce can be regulated for civic purposes.

Dissenting in the Civil Rights Cases of 1883, Justice Harlan argued that “property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large.” Harlan’s insistence that businesses that open their doors to the public generally—and thus seek public benefits—might be characterized as quasi-public, rather than simply private, had deep roots in the common law. The common law imposed a duty on businesses engaged in “public callings” to serve members of the general public unless there were “reasonable grounds to refuse.” ^{Footnote 33} The common-law duty to serve has been understood on both economic grounds and on more social grounds. In economic terms, businesses that function as near monopolies were held to have an obligation to serve all comers; otherwise individuals could be denied access to crucial resources. The second justification—often called the “conduct” theory—is more important for my purposes: it focuses on the businesses’ “conduct” toward the public. As the business held itself out to the public—and is often situated within a business zoning area—it has an obligation to provide the services advertised or made available. Refusal to provide services was a breach of the common law and actionable: the individual denied service was deemed to have suffered a legal injury. ^{Footnote 34} As a later Court put it, “property owners have no legitimate interest in unreasonably excluding particular members of the public when they open their premises for public use.” ^{Footnote 35}

Joseph Singer argues that this common-law understanding was the backdrop against which the Fourteenth Amendment was framed. Singer illustrates how this understanding declined in the period after the Civil War, largely based on the fear that it would require businesses open to the public to serve blacks. ^{Footnote 36} This, Singer and others have argued, was the birth of the right to exclude in America. ^{Footnote 37} In fact, the Civil Rights Act of 1875 was deemed necessary precisely because there was resistance to providing blacks equal access to ordinary businesses, much in the same way that the Civil Rights Act of 1866, the precursor to the Fourteenth Amendment, was meant to guarantee civil rights that were essential to equal opportunity in a commercial republic. ^{Footnote 38} As a defender of the 1866 act insisted, “it is idle to say that a citizen shall have the right to life, yet to deny him the right to labor, whereby alone he can live.” ^{Footnote 39} The link between public and private is captured by Justice Harlan’s dissent: “It was perfectly well known that the great danger to the equal enjoyment by citizens of their rights, as citizens, was to be apprehended not altogether from unfriendly State legislation, but from the hostile action of corporations and individuals in the States.” ^{Footnote 40}

To secure equal rights within the public sphere, it was necessary to take positive legislative action. ^{Footnote 41} As defenders of the Civil Rights Act of 1875 recognized during the congressional debates, if public accommodations could discriminate based on race then the promise of equality in the Fourteenth Amendment would ring hollow given the importance of the “private” sphere to American life. Indeed, interestingly, the Civil Rights Act as proposed by Senator Charles Sumner, and debated for years before its passage, included both schools and churches as spaces where racial discrimination would be prohibited. These areas were removed from the act to help secure its passage, though there was a principled reason to remove churches. Akhil Amar argues that “Reconstruction Republicans ultimately exempted churches from [the act’s] scope out of respect for the autonomy and institutional privacy—the religious ‘privileges’ and ‘immunities’—of religious organizations.” ^{Footnote 42} Yet, tellingly, there was no religious exemption for individual owners of businesses, allowing them to decline service to blacks because they objected to “social” interaction with them on religious grounds (such religious beliefs were common enough at the time).

Enforced Tolerance and Its Limits

Prohibiting commercial enterprises from discriminating, but allowing religious associations to discriminate, reflects a proper balance between religious liberty, equality, and toleration. Churches are religious associations defined by their beliefs, which are the very reason individuals come together. To require them to associate with individuals whom they do not view as fellow believers undermines the very purpose of their association. Yet this scarcely holds for individuals who are engaged in commercial activity and whose primary reason for engaging in the activity is to make money. ^{Footnote 43} As I note later, requiring business owners to interact with individuals whom they might find objectionable does not prohibit them from exercising their religious beliefs, even if it does moderately constrain their commercial liberty. But rejecting fellow citizens because of their skin color, or because of their sexual orientation, may deprive those citizens of equal access to the market, which is an inescapable feature of life in America. If restaurants, banks, pharmacies, and grocery stores refused to serve someone because they were black, it would be difficult to say they were truly equal citizens. And this is partly because of the division between public and private within the American constitutional order.

In America’s commercial republic most of life is private, i.e., it is not publicly owned. Civil society is largely “private” in this sense. Yet given this, the liberal order depends on the virtues, habits, and practices of the so-called private sphere. Indeed, the distinction between public and private, as critics like Sandel remind us, can be overdrawn. ^{Footnote 44} If racial discrimination is rampant in the private realm, civil society could cultivate and sustain a regime of racial segregation even while prohibiting the “state” from discriminating against blacks. This describes much of post-Civil War American history. If private persons would not sell to, employ, or engage in other economic activity with people because of their race, these people would have a difficult time forging a (private) life within the liberal order. As Danielle Allen notes, they would live “radically different versions of democratic life.” ^{Footnote 45} This holds as well for persons who could not enter most stores, rent an apartment, or attend a school because such privately-owned institutions shut their doors to them. ^{Footnote 46}

In Bell v. Maryland, a case that took up this question with regard to segregated lunch counters, Justice Goldberg described the rights at stake as equal civil rights and not social rights (which spoke to relations between individuals as private persons). Justice Goldberg went so far as to insist on “the good old common law” recognition that the state “was obligated to guarantee all citizens access to public accommodations.” ^{Footnote 47} Or as Justice Douglas put the matter, “we have in this case a question that is basic to our way of life and fundamental in our constitutional scheme.” ^{Footnote 48} For Douglas, a scheme of “apartheid,” even if carried out by ostensibly private persons, was inconsistent with the promise of equal civil rights. Like Harlan before him, Douglas spoke to the unique character of “public conveyances” in contrast with truly private matters: “Here it is a restaurant refusing service to a Negro. But so far as principle and law are concerned it might just as well be a hospital refusing admission to a sick or injured Negro, or a drugstore refusing antibiotics to a Negro, or a bus denying transportation to a Negro, or a telephone company refusing to install a telephone in a Negro’s home. The problem with which we deal has no relation to opening or closing the door of one’s home. The home of course is the essence of privacy, in no way dedicated to public use, in no way extending an invitation to the public.” ^{Footnote 49}

This same logic applies to sexual orientation. As Justice Harlan wrote, “today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination.” ^{Footnote 50} Harlan taught that within the public sphere—when businesses have opened their doors to the public by their own choice—we must interact with our fellow citizens as equals. And we can immediately separate such public spaces from private places: a room in a private house is not a hotel. Such private spaces should be preserved for religious reasons and otherwise. This understanding of liberalism attends much more to civic concerns than critics like Sandel acknowledge, but still leaves wide scope to individuals to make fundamental moral choices about their private life.

Admittedly, there may be a unique claim to the sort of “apartheid” system that African-Americans faced, particularly in the American South. I do not mean to suggest that discrimination against gays is as pervasive. ^{Footnote 51} Nor do I wish to suggest that declining to facilitate a wedding is altogether the same as the sort of ugly refusal of service that black Americans faced. Indeed, as several of the owners of the establishments I described above that refused to “participate” in a same-sex wedding argued, they were not refusing to serve gays and lesbians altogether; rather, they were refusing to offer their services in a same-sex wedding ceremony. As the florist said, she had many clients who were gay and she always served them, she just did not wish to “endorse” a wedding that she morally disapproved of.

Yet this putatively “tolerant” attitude is precisely why critics of liberalism are deeply skeptical of tolerance: it characterizes an actor as charitable for “tolerating” what is deemed abhorrent or disgraceful. Worse, in bestowing “tolerance” on an “object” of toleration, such as a homosexual couple, we are indulging a discourse that reproduces “the dominance of certain groups and norms.” ^{Footnote 52} In this way, Brown criticizes tolerance as a discourse, rather than as an individual ethic, which is characterized by “governmentality.” That is, a discourse between state, civil society, and citizens that “produces and organizes subjects, and that is used by subjects to govern themselves.” ^{Footnote 53} Here the liberal insistence on tolerance masks “how tolerance discourse itself frames and organizes the conflicts it is summoned to resolve.” ^{Footnote 54} Tolerance as a discourse inescapably involves a “subject-constituting dimension” with regard to the object of toleration. Asking for tolerance for homosexuality, for example, constitutes the homosexual “as an object of tolerance,” as something “needing tolerance.” This discourse organizes homosexuals as subjects of social power and reinforces homosexuality as a deviant category against the norm of heterosexuality. ^{Footnote 55} For Brown, invocations of tolerance indicate a retreat from a more ambitious political agenda—of efforts to achieve emancipation and justice—that would work to overcome social marginalization by reducing various forms of inequality. Tolerance also points to a thin view of citizenship where isolated individuals—or better, subjects—simply live with their aversions in an attenuated political order. Republican critics of liberalism like Sandel share the concern that tolerance fosters a thin view of politics and citizenship that “is unlikely to realize the higher pluralism of persons and communities who appreciate and affirm the distinctive goods their different lives express.” ^{Footnote 56} Critics of liberal tolerance thus argue that it may lead to a shallow civil peace, but it is unlikely to lead to a genuine appreciation of and respect for difference.

Defenders of conscience like McConnell and Laycock argue that we should allow for difference by honoring religious conscience and the rights of association it entails in most cases. The real question, then, should be whether there are other providers of the goods at issue who are willing to serve same-sex couples. This is akin to the economic argument at common law: if a private business essentially exercises a monopoly on the good or service in question, then it makes sense to prohibit the company from discriminating. Yet if the good or service is more widely available, same-sex couples can always go elsewhere for a wedding cake or flowers. This also makes such discrimination notably different from the sort of pervasive—indeed suffocating—discrimination that was aimed at African-Americans. While this argument has some appeal, it neglects the civic element of equality and, perhaps more importantly, it opens up an avenue that could undermine both anti-discrimination legislation and the liberal tolerance it is meant to foster in the public sphere. While Laycock and McConnell are seeking to defend religious liberty, they may actually be putting it at risk for both prudential and philosophical reasons.

Let me begin by noting the kind of requirement at stake. In those states that have added “sexual-orientation” to the categories that businesses open to all comers may not discriminate against, businesses may not decline to serve them because of sexual orientation. Businesses can decline service on “reasonable” grounds, though the reasons offered cannot be “pretextual” or offered in “bad faith.” ^{Footnote 57} But businesses are in no way required to approve of those they serve; nor are individuals who run businesses required to alter their religious beliefs: commercial regulation prohibits a certain kind of conduct, it does not prescribe individual belief. Yes, this may frame how we understand religion from a liberal perspective (though it can recognize religious beliefs as a duty and part of a person’s thick identity). But this is inevitable. Even defenders of religious exemptions, which are grounded in religious conscience as an obligation not simply a choice, insist on the primacy of the civic framework when there is a compelling governmental interest that overrides religious belief—otherwise, religious believers would be a law unto themselves. It is also true that the norms, habits, and practices of liberal culture are likely to shape individual beliefs, including religious beliefs. If pervasive, habits and norms can be more powerful than formal laws. This has benefits, but we should also recognize, as both friendly and hostile critics of liberalism remind us, how this might limit independence of mind in a liberal-democratic culture. ^{Footnote 58}

As Macedo argues, the “civic health of liberal democracies” depends on a “deeper convergence of public and private values.” ^{Footnote 59} Macedo is not simply referring to the spillover effects of liberal institutions I noted above. Far more than this, Macedo argues that liberalism ought to transform religious beliefs to accord with basic liberal understandings. Insofar as religious beliefs are at odds with liberal practices such as toleration, liberal principles will work to transform those beliefs and the individuals who hold them, shaping “our deepest moral” commitments in “accord with political imperatives.” ^{Footnote 60} Brettschneider shares this commitment: “intentional attempts to transform certain illiberal religious doctrines are an essential part of democratic persuasion.” ^{Footnote 61} Thus when one's religious beliefs oppose “core values” such as “equal citizenship, democratic persuasion is justified in order to transform these beliefs.” ^{Footnote 62} Brettschneider considers speech from the state a part of these persuasive efforts. In its educative capacity, the state can and should speak for its values and seek to educate citizens along these lines. Those concerned with religious freedom worry that such efforts will marginalize traditional religious views with regard to homosexuality (much like critical theorists worry that tolerance will marginalize homosexuality). Such conflicts are already pervasive with regard to teaching about homosexuality in public schools. Beyond this, the state may use its power regarding non-profit status, accreditation, and tax exemptions, to coerce religious institutions into accepting homosexuality and same-sex marriage.

Macedo’s transformative liberalism is particularly powerful in illuminating that religious liberty in a liberal regime depended on the transformation of some religious beliefs. Most importantly, it required religious institutions to accept that they had no coercive power. This did require a transformation of orthodox religious beliefs in seventeenth and eighteenth century Europe and America. Political thinkers who lived this history, like Locke and James Madison, directly engaged religious thought: they sought to convince a variety of religious sects that coercion was at odds with Christian belief. ^{Footnote 63} This was necessary work in the establishment of liberal institutions and the religious liberty they helped bring about. Religious beliefs have almost certainly been altered by their encounter with liberal democracy. And religious beliefs are likely to change as social attitudes about same-sex marriage change. ^{Footnote 64} Yet in recognizing the potential of transformative liberalism, both Brettschneider and Macedo vacillate between arguments defending liberal principles and the liberal framework that will indirectly influence religious beliefs and far more purposive and explicit efforts on the part of the state to actively transform religious beliefs that are at odds with “free and equal citizenship.” ^{Footnote 65}

Drawing on the civic dimensions of liberalism, we should prohibit public accommodations from discriminating, but this is consistent with the expressive dimensions of liberalism that allow for wide disagreement on the issue. ^{Footnote 66} Given the expressive and associational values of liberalism, religious institutions must remain free to discriminate. Religious liberty prohibits requiring religious organizations from recognizing marriages at odds with their beliefs (as they define them) or having the equivalent of religious actors perform services their religion rejects. Those who are opposed to same-sex marriage for religious reasons or otherwise also remain free to speak out against same-sex marriage, to speak against having to serve same-sex couples, and to engage in all other manner of free speech in the public space—and not simply as individual citizens. They can campaign for office and come together as associations that want to return to so-called traditional marriage—as, of course, can their critics.

Tolerance and Dignity in the Civic Space

Public accommodations laws are best understood as a form of liberal tolerance. The language of religious liberty has displaced tolerance, because it is viewed as a right and not something bestowed by the state. In this regard, the state must recognize an individual’s religious liberty, not merely tolerate it. Indeed, the liberal state commits itself to the moral justification of an individual’s right to make fundamental choices about religion. Yet, for the liberal accommodation to work, religious liberty also requires tolerating your fellow citizens despite your moral disagreement with them. ^{Footnote 67} This speaks to interactions with your fellow citizens. Tolerance, in this sense, does not require “mutual respect” in any deep sense, let alone “moral approval.” Tolerance as applied to public accommodations is better understood as akin to what Waldron terms “sociability.” Waldron turns to Enlightenment thinkers like Locke to better understand what a tolerant civil society requires. In doing so, he draws on Locke’s treatment of religion, which is a helpful analog. Tolerance, including sociability, as Waldron argues, means

This is essentially what same-sex couples are asking for with regard to public accommodations. If this includes a form of dignity, it is not a Kantian right to ”equal concern and respect.” It is much more mundane: it only requires that in civil society, in the ordinary course of business, you engage in exchange with your fellow citizens.

The commercial nature of liberalism helped us set aside our differences for civic purposes. Understanding public accommodations in these terms lowers the stakes of the debate, much in the manner that Locke’s argument for religious toleration lowered the stakes of religious disagreement. Same-sex couples are seeking to engage in the day-to-day practices of the marketplace without incident; it is the same sort of toleration that religious minorities once sought and that most citizens enjoy today. Rhetoric to the contrary, we need not think of same-sex couples as asking for the moral approval of those who serve or interact with them. Nor should we suppose that businesses are in a position to grant moral approval—just as heterosexual couples getting married did not seek the moral approval of the florist or the baker providing services for their wedding day. And it is difficult to imagine that those who would now deny same-sex couples services were in fact bestowing moral approval on their prior customers or on all their interactions. Critics of tolerance are right that seeking mere toleration can turn us away from a more ambitious agenda that pushes for justice or moral approval from all quarters. ^{Footnote 69} Sandel notes that minimalist arguments for toleration, those grounded in rights and moral neutrality, simply ask that we respect the freedom of others to live in ways that we disapprove of. Those who view homosexuality as a sin “need not be persuaded to change their mind.” ^{Footnote 70} As critics of toleration argue, this is troublesome in that it leaves homosexuality as a “base,” “deviant,” or “distasteful” object of toleration. ^{Footnote 71} Toleration demeans homosexuality because it sets aside the moral justice of the case for equal treatment and recognition. For Sandel, the moral and human goods at issue, which are essential to human flourishing, are central to the argument for same-sex marriage and should be engaged as such. There is something to these critiques. Yet a more minimalist argument for toleration need not neglect the civic dimensions of life, nor need it put aside moral argument. ^{Footnote 72}

The state owes all citizens a deeper form of moral dignity, but within civil society, when it comes to interactions between individuals, we really are speaking about mere toleration. It requires more than a simple prohibition on coercion, but less than “equal concern and respect” from your fellow citizens. As Teresa Bejan writes about Locke, a tolerant society “would encourage citizens to cultivate indifference towards their differences.” ^{Footnote 73} This understanding does not attempt to overcome disagreement; rather, it acknowledges that disagreement will be a permanent feature of liberal democracy and seeks to provide a civic framework that will allow us to disagree while living as fellow citizens in a pluralistic society. Brown is right that liberalism, in this regard, seeks to de-politicize civic space insofar as it asks us, at least in commercial transactions, to set aside our political and moral differences. ^{Footnote 74} Of course, this is a deeply political move at the very core of the liberal framework. ^{Footnote 75} We might say that liberalism works to make our differences invisible by rendering them unimportant in our ordinary interactions.

Yet this does not mean, contrary to Sandel, that we expunge moral argument from the civic sphere. As I noted earlier, the expressive dimensions of liberalism allow a wide range of moral and political disagreement. Teresa Bejan and Bryan Garsten capture something like this as a feature of “liberal civility.” As they argue, “we think the civility necessary for liberal democracy to function must be a practice less demanding than the ‘mutual respect’ extolled recently by political theorists and philosophers, but nevertheless one requiring more self-restraint than the license favored by antiliberal neo-republicans.” ^{Footnote 76} Civility, like tolerance, can be an effort to downplay deep disagreement and defend the status quo. ^{Footnote 77} But as Bejan and Garsten argue, a more minimalist conception of civility allows us to interact with one another amidst deep moral and political disagreement. As they insist, disagreement will remain “disagreeable.” And disagreement will remain an inescapable feature of liberal society, which attempts to balance multiple goods and values. At issue here is how to provide for the civic equality of same-sex couples while also recognizing the religious liberty of those who object to same-sex marriage.

Mere toleration best captures this. It recognizes fellow citizens as members of the same polity, which in the American scheme points to everyday life and one’s status in the law: “to find the shops and exchanges open to him.” ^{Footnote 78} As I noted earlier, this is a procedural legal requirement, which is precisely what anti-discrimination laws in public accommodations are designed to achieve. Tolerance of this sort undergirds the civic framework, which requires reciprocity among citizens. As Supreme Court Justice Joseph Story put it in his Commentaries on the Constitution, “the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit at the common table.” ^{Footnote 79} Thus the Catholic owner of a bakery open to the public engages in commerce with Jews and Protestants, gays and straights, and those who advocate that a woman has a constitutional right to terminate her pregnancy as well as those who think that abortion is murder. Similarly, the gay owner of a coffee shop openly serves Christian fundamentalists and Muslims who morally disapprove of homosexuality. In fact, in most of our commercial exchanges with one another these issues do not arise because democratic citizenship is often a matter of how “strangers interact in public spaces.” ^{Footnote 80} We simply do not inquire of our fellow citizens’ religious, moral, or political commitments. Liberalism aspires to make these differences invisible insofar as it makes us indifferent to them in our ordinary interactions with one another. Same-sex marriage is different only in that the identity of the same-sex couple is more readily apparent.

The fact that identity is more obvious in this sense leads Brown to doubt that tolerance works in the same way when we are talking about on “object” of toleration, such as a “gay person,” rather than tolerating the religious and ethical beliefs or others. In the former case, we are engaged in producing “subjects” and thereby constituting political identities. Brown’s critique, as I noted, is that this sort of discourse continues to confine and shape political identities in ways that turn fellow citizens into marginalized “objects” of toleration—so we move from tolerating beliefs to treating the “gay person,” “immigrant,” or “Muslim” as an object of tolerance. Rather than fostering a democratic discourse that teaches us to engage and accept difference—to break down prejudices against the gay person, immigrant, or Muslim—tolerance leaves these aversions in place along with differences in power relations based on various forms of identity. ^{Footnote 81} Indeed, scholars of identity are often critical of anti-discrimination law for these very reasons. Critics worry that anti-discrimination law “participates in the very practices it seeks to regulate; antidiscrimination law can become an instrument of discrimination in the sense that it must reiterate—entrench—the stereotypical or discriminatory version of the social category it seeks to eliminate.” ^{Footnote 82} It is true that anti-discrimination law may reinforce certain identities. Yet this critique may be overdrawn. One’s skin color or sexual identity become a category of law, which may give the individual whose identity is at issue less control of it. But these categories are themselves constructed based on our historical experience and enable civic equality against a history of discrimination. Anti-discrimination law may be an imperfect solution, but we should not confuse such laws with invidious forms of discrimination.

Critics of tolerance offer powerful insights into its limits and give us good reason to be less celebratory of its achievements, but should we prefer to engage in more emancipatory and crusading projects to liberate us from such limits? ^{Footnote 83} If tolerance itself is not enough, we might seek to directly engage those who find homosexuality morally problematic. Certainly, we can seek to persuade them as fellow citizens within a framework of tolerance. But do we use the coercive power of the state to transform or overcome such beliefs? Sterner transformative liberals might certainly turn to the state’s mildly coercive power to indirectly alter religious beliefs. Would critics of liberalism go further with coercive power, which might entail the loss of freedoms? ^{Footnote 84} Beyond the ordinary discourse of citizens, I would reject such efforts to transform religious belief. In an effort to balance competing goods, we should recognize the limits of what we can achieve. And not just as a matter of prudent accommodation, but in recognition that we want to preserve both equality in the civic sphere and religious liberty. Alexis de Tocqueville’s sense of “the slow and tranquil action of society on itself” may be our best solution. This might be done by pointing to what is similar, rather than different, about the tolerance same-sex couples are entitled to in the civic space. The fact that identity is more visible—and thus helps render visible the moral objection of those opposed to same-sex marriage—should not obscure the fact that this sort of toleration is precisely what diverse religions demand for themselves in the civic arena. ^{Footnote 85} Indeed, noting the parallels, making them visible, could serve as a civic education: it should remind those of us whose religious, ethnic, gender or moral identities are not obvious, of the very sort of tolerant interaction we take for granted from our fellow citizens.

It is fitting that a justice of the New Mexico Supreme Court captures this logic. His concurring opinion in the Elane Photography case is worth quoting at length:

Refusing to serve fellow citizens because of their sexual orientation erodes the tolerance that American civil society depends on. In opening the door to religious exemptions in public accommodations, there is no principled or prudential reason to limit them to same-sex marriage. The fact that it is “visible” only highlights the forbearance we assume in civic life. Imagine a public space where, to play on the Sweetcakes by Melissa sign that read “we don’t do same-sex marriage,” signs read: “we don’t do Muslim marriage” and “we don’t do papist weddings.” Following the logic of such religious objections, signs might pervaded coffee shops, restaurants, bookstores, pharmacies, and the like that read: “we don’t serve Jews” or “we don’t serve Fundamentalist Christians.” Alas, in our current political and cultural environment, it is all too easy to imagine such signs aimed at Muslims.

Consider marriage more generally within the framework of civic liberalism. If a business owner can deny service because they do not, on religious grounds, want to endorse the marriage, then a Mormon owner could refuse service to Catholics, Jews, Protestants, and Muslims, because such marriages were not truly marriages in the eyes of God—they were not done in a Mormon ceremony with a Mormon Bishop officiating in a Mormon Temple. Certainly a Catholic could, as a matter of religious conscience, deny services to divorcees. Following the teachings of the Catholic Church, which rejects divorce, such people cannot be “re-married.” In the eyes of the Mormon Church or the Catholic Church, many, if not most, civil marriages are not truly marriages: they are not sanctified by God. This applies to numerous other religions and points to the profound difference between civil marriage and religious marriage. Consider again the words of the Washington state florist who denied service to a same-sex couple: “In my religious tradition, marriage is a sacred religious ceremony between a man, a woman and Christ. It’s a covenant with the church. To participate in a wedding that violates those principles violates the core of my faith.” And yet we would have to ask if the flower arrangements she did for prior weddings were always in a “sacred ceremony”? Did they always include Christ? Were they within a church? Did she, in fact, approve of them on moral and religious grounds? This is doubtful, and in most cases because she would simply not know: such issues are not obvious. In this, the commercial business owner is profoundly different than a Catholic priest being forced to wed a same-sex couple. In the case of the priest, the “religious status” of the office is central: the priest would in fact be endorsing a marriage at odds with the tenets of his faith. The priest and the church would be implicated. ^{Footnote 87} But this is not the case with a business that engages in ordinary commercial transactions.

Conclusion: Making Liberal Tolerance Visible

If we allow owners of businesses open to the public to discriminate on the basis of their religious beliefs, we risk returning to the sort of religious conflicts that helped forge liberal tolerance in the first place. Within the liberal framework we can engage in freighted moral questions and aspire toward a deeper sense of understanding and belonging. But these conflicts should remind us of a minimal floor, where recognition of our shared civic framework requires only mere toleration in the midst of profound disagreements. Within the liberal framework we ask citizens to, indirectly, set aside their religious and moral beliefs at certain times. Certainly, one crucial feature of liberalism, which influenced political actors and thinkers like James Madison and Thomas Jefferson, was that commercial society would soften religious conflicts as citizens engaged in commercial life, which allowed their material interests to flourish. ^{Footnote 88} Waldron captures the “tolerant and amicable interchange” of the market in Voltaire’s famous description of the Royal Exchange in London: “There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There the Presbyterian confides in the Anabaptist, and the Churchman depends on the Quakers word.” ^{Footnote 89}

Based on the transformations liberal democracy has brought about by way of tolerance, we tend not to consider religious differences in commercial transactions (and in many other facets of civil society). Rather, our commercial transactions tend to reflect Voltaire’s description of the Royal Exchange because we tend to be “indifferent” about our “differences.” Yet, as Steven Smith argues, this success can make us peculiarly blind to the force of such problems. ^{Footnote 90} Allowing discrimination on religious grounds finds parallels with older forms of religious intolerance. As Locke puts it, “It is not the diversity of opinions, which cannot be avoided; but the refusal of toleration to those that are of different opinions, which might have been granted, that has produced all the bustles and wars, that have been in the Christian world, upon account of religion.” ^{Footnote 91}

We should not take the tolerance that generally holds between different religious traditions in the American polity, and particularly within our commercial relations, for granted: “the decline of religious intolerance is in no way foreordained.” ^{Footnote 92} Liberalism’s origins are inextricably bound up with the problem of religious conflict. Liberal politics, and the commercial nature of the republic, was meant to help alleviate this problem, but questions remain about the permanence of its solution, and whether the conflict is truly soluble. Certainly, the return of religious violence and religious conflict within long-established liberal democratic polities should make us acutely aware of this fact. The American achievement of religious liberty and equality within a pluralistic democracy has been built over time. Even prior to the creation of the First Amendment, Noah Webster insisted “America founds her empire upon the idea of universal toleration: She admits all religions into her bosom—she secures the sacred rights of every individual . . . and she sees a thousand discordant opinion live in the strictest harmony.” ^{Footnote 93}

Today we are a truly diverse and pluralistic society that is testing this proposition. Tolerance of the sort I have defended here is more essential than ever (the rising intolerance against Muslims being just one indicator of this). It will help us protect religious liberty and recognize fellow citizens as civic equals. While I have focused on the forbearance that religious believers who object to homosexuality—or at least to same-sex marriage—should offer their fellow citizens, this extends in the other direction too. Moving beyond public accommodations, I think the government should resist entreaties to use its power of accreditation, tax exemptions, licensure, and the like to transform the beliefs and practices of religious institutions that oppose same-sex marriage. While it is unlikely we will live in the “strictest harmony,” this accommodation is consistent with America’s moral and religious diversity and our commitment to the values of both liberty and equality and the tension that can run between them. But in our modern commercial republic there is no escaping the marketplace: it must be open to all comers on an equal basis. This may well circumscribe the complete liberty of business owners with strong religious attachments, but that is an implicit cost of the liberal bargain. It is a small price that they should willingly pay. All the more so as it will help shore up, as a matter of prudence and principle, religious liberty.