Agora, Dignity, and Discrimination: On the Constitutional Shortcomings of 'Conscience' Laws that Promote Inequality in the Public Marketplace

Abstract

This Essay, a contribution to a symposium on “Law and Religion in an Increasingly Polarized America,” considers and critiques the constitutional status of the new wave of state “conscience” laws. In the immediate wake of Obergefell, a number of states began to consider enacting new “religious conscience” laws that would legally excuse refusals of service to LGBT persons. The broadest of these proposed statutes, such as Mississippi’s House Bill 1523, would create a near absolute right for businesses open to the general public to discriminate against sexual minorities and transgender persons. This Essay considers the constitutional status of such laws and posits that they stand on dubious constitutional ground. First, enactments of this sort violate the Equal Protection Clause by denying otherwise applicable legal protections to LGBT persons. Second, individuals and businesses that rely on these new enactments in order to discriminate against LGBT customers are arguably state actors when acting consistently with the state’s encouragement under the “nexus” theory of state action and, accordingly, accountable under the Equal Protection Clause. Third, and finally, even if such enactments are constitutionally valid, government may not provide any targeted support to individuals or businesses that operate on a pervasively discriminatory basis against LGBT persons.

On the other hand, however, some states have moved in the opposite direction, enacting very broadly crafted anti-discrimination laws that require entities generally open to the public to refrain from discriminating against LGBT persons. Difficult questions exist regarding the permissible scope of such enactments. Just as government may not encourage private businesses to discriminate, it may not regulate religious entities in the same way it may regulate supermarkets and gas stations. A church, synagogue, or mosque stands outside the public marketplace, or agora, and has a right to maintain and enforce policies that reflect the tenets of the faith. Just as the government may not encourage businesses open to the public to discriminate in ways that would be unlawful if enacted as a direct social regulation, government may not require private religious communities to treat believers and non-believers on equal terms.

In order to determine when religious entities have a constitutional right to be self-governing, we must carefully disentangle the public sphere from the private sphere. The state creates and maintains the agora, or public marketplace, and has the power to regulate access to it in order to promote the health, safety, welfare, and morals of the community. Just as the state may legislate to prevent and deter health nuisances, such as fire hazards and unsanitary conditions, it may also legislate to eradicate moral nuisances, such as various forms of invidious discrimination. This power to eradicate moral nuisances, however, cannot sweep so broadly or deeply as to deny self-constituted communities of faith the ability to hold and practice the tenets of their faith outside the public marketplace. To be sure, drawing the line of demarcation between the truly public and the truly private will not be an easy undertaking. Even so, however, it is an essential undertaking if we are to secure both equality and religious liberty in the contemporary United States.

Keywords: constitutional law, religious freedom, equality, equal protection, discrimination, public accomodation, H.B. 1523, First Amendment, free exercise, state action, freedom of association, marketplace, agora, inequality, complicity, RFRA, equality, dignity