Tempering Civil Rights Conflicts: Common Law for the Moral Marketplace

Abstract

The culture war has sprawled into the marketplace. Property is now sexy but also loaded with moral conflict. Baking or buying a cake, arranging or purchasing flowers, meeting with fellow students on a university campus for religious services, taking and posing for pictures, are all suddenly morally- and politically-freighted acts. Can law provide a peaceful solution to the present conflict between sexual-identity right claims and religious liberty? The purpose of this article is to argue that law, understood in its textured, common-law contours, can provide a more peaceful and reasonable solution than (a) positive law alone, (b) markets unmediated by law, and (c) peremptory claim-rights.

Keywords: civil rights, conscience, equality, sexual identity, dignity, common law, markets, rights, perfectionism, mediated dominion