A License to Discriminate? The Empirical Consequences and Normative Implications of Religious Exemptions

60 Pages Posted: 7 Dec 2020 Last revised: 24 Aug 2021

See all articles by Netta Barak Corren

Netta Barak Corren

Harvard Law School; Hebrew University of Jerusalem

Date Written: November 19, 2020

Abstract

What are the consequences of religious exemptions? And what are the normative implications of these consequences? These questions are currently at the center of a heated debate. Opponents argue that granting exemptions would extend LGBTQ discrimination. Proponents of religious exemptions argue that religious exemption would not expand discrimination against same-sex couples.

The troubling aspect of this debate is that none of the parties rely on actual data. Particularly missing are data on the effects of exemptions granted in Supreme Court decisions, an issue that the Court has addressed repeatedly in recent years—and is set to do so once again this term, in Fulton v. City of Philadelphia.

This Article intervenes in the debate based on the results of a large-scale field experiment that measured the effect of Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) on same-sex couples in the wedding market. The field experiment revealed that Masterpiece reduced vendors’ willingness to provide wedding services to same-sex couples as compared with heterosexual couples, even for vendors that provided these services prior to the decision. Following Masterpiece, the odds that same-sex couples would experience discrimination are estimated between 61% and 85%.

These results have several implications for the debate on religious exemptions. First, they discredit the argument that the effect of religious exemptions is negligible and that exemptions will not expand discrimination. Second, the results complicate the conventional portrait of religious objection as fixed and unyielding to change, showing that the demand for discrimination is elastic and socially constructed, even when coercion and sanctions are absent. Third, Masterpiece’s negative effects establish the pillar of the strict scrutiny doctrine of religious burdens, by showing that states have a compelling interest to enforce antidiscrimination law without exemptions to ensure access to public accommodations. Fourth, I advance an empirical approach to religion-equality conflicts that can guide legislatures that deliberate whether and how to enact religious exemptions from antidiscrimination laws.

Finally, the troubling consequences of Masterpiece require the Supreme Court to proceed with great care as it sets to decide Fulton v. City of Philadelphia and any religion-equality conflict in the future. However the Court decides to resolve the constitutional issue at hand, it must take into account that even a deliberately narrow and case-specific exemption might have a significant negative impact on the market and its customers.

Suggested Citation

Barak Corren, Netta, A License to Discriminate? The Empirical Consequences and Normative Implications of Religious Exemptions (November 19, 2020). Forthcoming, Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 56, No. 2, 2021, Hebrew University of Jerusalem Legal Research Paper 21-21, Available at SSRN: https://ssrn.com/abstract=3733321 or http://dx.doi.org/10.2139/ssrn.3733321

Netta Barak Corren (Contact Author)

Harvard Law School ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

Hebrew University of Jerusalem ( email )

Mount Scopus
Jerusalem, Jerusalem 91905
Israel

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