Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, March 2, 2014

On the Pain of Discrimination and the Role of Law and Government (Part Two)

Following on my earlier messages to the ReligionLaw list about the nature and pain of discrimination and the necessarily limited role of law in a free society, I attempted in this final message (which I set out below for Mirror of Justice) to sketch out some points of general agreement and narrow in on the remaining points of disagreement.


While I wouldn’t suggest that consensus has been reached on all points [among posters to the ReligionLaw list], I thought I heard increasing agreement on some basic points:

First, when the law declares that basic provision of goods and services may not be denied on the basis of certain classifications, the general application of such a law meets with general approval among members of the list.  Thus, to use a couple of generic examples offered now by more than one member of the list, the grocer should not discriminate on race, gender, religion, or sexual orientation in selling groceries and the baker should not bar anyone at the door based on such identity from entering to buy baked goods.  To permit the grocer or baker to pick and choose who to serve based on essential identity would be discrimination at its most invidious, the harm experienced by the person who was the subject of such discrimination would be at its most egregious, and the claim of an intrusion into liberty interests at its lowest ebb.

Second, and by contrast, people appear to agree that when a person suffers a hostile reaction to advocacy, even on the most discriminatory of bases, or when a person restricts the goods and services that will be offered to anyone on the basis of that person's personal identity, then law should not intervene.  Discrimination in direction or in effect by itself cannot be the basis for unleashing the coercive power of law.  Thus, as previously discussed, a pair of Christian evangelists who are the subject of discriminatory taunts on the street should receive no legal redress.  And the Jewish baker who closes the shop early on Fridays because the Sabbath is beginning should not be forced to do otherwise.

Into this second category where the law should not intrude, then, presumably would fall such additional examples as the operator of a Jewish deli or a Muslim halal grocery who chooses not to stock pork chops or bacon for religious reasons; the owner of a gay and lesbian bookstore who chooses not to place books about religious “reparative” ministries on bookshelves because he disagrees with that message; or the obstetrician who refuses to perform abortions on philosophical or religious grounds.

Now, and here I return to the point where consensus has not been reached, I would submit that some of the same or similar characteristics or principles that define this second category of free choice also encompass the case that has been highlighted of the wedding photographer who declines to photograph a ceremony with which she disagrees. Similarly, an attorney may choose to represent only plaintiffs who allege they are victims of sexual abuse and simply refuse to represent defendants who are accused of sexual abuse. An advertising agency may refuse to work up a promotional campaign for a Republican politician.  A public relations firm may refuse to take on a Catholic archdiocese seeking to counter negative publicity related to priest sexual abuse.  A psychologist may specialize in counseling women who have suffered abuse, while choosing not to accept male clients.  A couples therapist may focus on gay couples, while not choosing not to work with straight couples.

Now each of these examples could be described as involving “discrimination.”  But we have also used another term to describe these choices:  Freedom.

What I would argue distinguishes these business choices from the general prohibition on discrimination in goods and services is that the service or good provided is inextricably intertwined with a message or perspective that the provider may or may not wish to endorse.  In these examples, the services are being devoted directly or nearly so to the promotion of a message, which thus implicates freedom of thought at its most critical.  Moreover, because of the personal nature of these kinds of services, the service-provider necessarily must identify with the client, becoming a partner with the client in directly advancing the client’s goals.  The connection between the provider of goods or services here is anything but collateral to the message, ceremony, position, etc.

To use the law to require the service-provider of this distinctive nature to become involuntarily tethered to a viewpoint that he or she does not endorse is simply not compatible with fundamental liberty principles.  That we may not agree with those choices, or even find one or another choice repugnant, cannot be the measure of our response, if freedom is have any purchase.  Here at least, we should say that the law may proceed no further.


Sisk, Greg | Permalink