Monday, July 3, 2017
Harvard law prof Joseph Singer has posted an article titled, Property and Sovereignty Imbricated: Why Religion is Not an Excuse to Discriminate in Public Accommodations. He argues that "public accommodation laws do not infringe on legitimate property rights or religious freedoms; rather, they define the legitimate contours of liberty and property in a society that treats each person with equal concern and respect." From the conclusion:
Property may limit sovereignty, but it can only do so through normative judgments about the legitimate scope of property claims. Sovereignty may define property, but in a free and democratic society it can only do so legitimately by ensuring that free and equal persons are neither attacked nor abandoned in the street with money in their hands.
As such, those who oppose SSM are free not to celebrate same-sex marriages, free not to accept LGBTQ persons as equal members in their churches, free to speak their minds, etc., but "such freedoms end at the market's edge."
First, if you only have time to read one article by Professor Singer this holiday weekend, read his earlier paper, Normative Methods for Lawyers, which is an insightful and important analysis of legal education. It has been required reading for every 1L student at St. Thomas since it was published.
Second, while I have only skimmed his new paper, I think he's focusing on the less interesting question (how can we justify public accommodation laws in the face of religious liberty objections?) instead of what I believe is a more pressing one: how should we craft public accommodation laws in light of our deep religious and moral pluralism? Should we draw a distinction between a provider turning away LGBTQ persons from purchasing "off the rack" goods or services and a provider refusing to contribute customized, creative services to the celebration of a relationship to which they object? For example, what does the relationship between property and sovereignty teach us about the law's appropriate treatment of Barronelle Stuzman?