Gays in the Moralized Marketplace

Abstract

Litigation against the Affordable Care Act’s contraceptive mandate marked the acceptance of a moralized marketplace in religious liberty doctrine. For-profit businesses — long the subject of extensive regulation as part of public commercial life — became endowed with moral lives and entitled to freedom from government intervention. As courts joined market freedom with religious liberty, the market became the baseline against which to measure the benefits and burdens of regulation.

This Article argues that the moralized marketplace risks retrenchment of equal rights for gays and lesbians. Businesses’ claims to religious exemption from public accommodations antidiscrimination laws depend on reducing societal and individual interests in nondiscrimination to market access. With the market as the baseline, alternative vendors both negate the reason for regulation and serve as a means less restrictive of objecting businesses' religious freedom.

The Article critiques the reduction of antidiscrimination law to mere market access. Antidiscrimination law has far broader aims, which would be thwarted by the expansive religious exemptions now under consideration. A guarantee of access to goods and services somewhere in the market cannot address social stigma, construct equal citizenship, and create an inclusive society — the goals to which prohibitions on discrimination aspire.

Finally, the Article counsels against marriage triumphalism. Gays and lesbians may have attained marriage, but they are not treated as equals in our nation. One cannot assume societal change will continue apace, even as legal impediments to equality are erected in the form of religious exemptions.

Keywords: Hobby Lobby, religion, public accommodations, discrimination, contraception, gay rights