Walsh on Juridical Post-Liberalism and Ius

Here is a third contribution, from our Kevin Walsh, to the conference on "Liberalism's Limits." Kevin's essay concerns some distinctions between ius and lex in shaping how we might come to understand various legal claims. A bit:

Religious exemptions and hate speech sometimes run into each other in culture-war disputes arising out of the sexual revolution. The point of contact is dignitary harm. Examples of such disputes include those over goods or services for same-sex weddings, pronoun usage in classrooms, and access to bathrooms based on one’s gender identity rather than biological sex. In these settings, the harms alleged are a mixture of material and dignitary. A material harm is something like the inability to access goods or services or facilities, or a loss of money. A dignitary harm is a feeling of moral stigma or inferiority or exclusion.

Whatever the setting in which a claim of dignitary harm is advanced, the principal moves along the lines suggested above are to:

(1) reject subjective conceptions of dignitary harm, insisting instead on traditional adjacent conceptions that are more objective in nature, such as the right not to be reputationally harmed by false statements of fact, or the right not to be subjected to “extreme and outrageous conduct” that causes emotional distress; and

(2) focus on the precise thing that is being sought, such as the particular flower arrangement, the particular cake, the particular collection of photos and videos, or the particular pronoun or name to use or not to use.

These two moves just set the stage for a legal analysis that attends to the particular features of a jurisdiction’s on-point law.

Within the United States, these moves can be doctrinally supported through well-established principles both of tort law and of First Amendment freedom of speech law. Within the area of religious exemptions more specifically, some scholars have attempted to include dignitary harm among the third-party harms that (they say) should count against granting a religious exemption from anti-discrimination laws. Turning judicial focus away from subjective claims of right and toward particular conduct and speech that would be forced or forbidden helps to highlight the poor fit of dignitary harm claims with more deeply rooted aspects of American law.