Half-Baked: The Demand by For-Profit Businesses for Religious Exemptions from Selling to Same-Sex Couples

Abstract

Should bakers be required to make cakes for same-sex weddings? With the announcement of a constitutional right to same-sex marriage in Obergefell, one of the next confrontations in the struggle for expanded equality will involve the demand for religious exemptions from nondiscrimination laws in the public marketplace. The present discussion unravels the eclectic arguments that are repeatedly offered in support of such an exemption. The initial feint invokes a fundamental right to exclude, which fails for two reasons. First, the right to exclude is a fundamentally racist rule devised to prevent African-Americans from participating in free society. Rather than attempt to revive it in order to likewise bar gays from the marketplace, the rule should be reset to the antebellum standard of free access to all public places of commerce. A second effort defending discrimination on conduct like marriage rather than status such as sexual orientation has found no positive reception in the courts.

The principle legal conclusions are twofold. First, although free speech defenses have been easily rebuffed, the possibility of a coerced speech defense that has been contextualized to the receiving audience and read against the background social norms should be recognized. Messages arise when actions cut against stereotyped expectations as they currently stand. To evaluate a forced speech claim we must know what are the routine understandings of same-sex marriage within the relevant community. Only then can a court ascertain whether the service provider has been asked to send a message about same-sex marriage against its will.

The free exercise claim presents a less likely chance of success, especially in states without a RFRA law. In those settings the court will analyze the religious exercise argument under the Smith criteria which invariably find the contested nondiscrimination law to be of enforceable general applicability. In jurisdictions that have enacted a local version of RFRA, it is unclear how judges will assess the government’s compelling interest to prevent sexual orientation discrimination. That analysis will involve a description of the harms threatening both sides of the conflict. While the injuries arising from the violation of sincerely held religious beliefs are to be assumed, the dignitary harms to the same-sex couple should not be mischaracterized and trivialized as a “minor inconvenience.”

For those that insist on concessions to the demand for religious exceptions, the most defensible compromise approach may carve out a small group of professionals who exercise “editorial judgment” in the same manner as the courts have described for newspapers.