Last week, the Supreme Court ruled for Lorie Smith, a Christian website designer from Colorado who wanted an exemption from discrimination laws so she could create wedding websites for opposite-sex couples only.
She relied on free speech rather than religious freedom. However, her moral concerns mirrored claims by religious people who have refused to bake cakes or take pictures for same-sex weddings, rent rooms in their bed-and-breakfast to same-sex couples, place children with same-sex foster parents, or hire employees who engage in same-sex intimacy. They believe that following discrimination laws and supporting what they view as others’ sinful acts would make them complicit in those sins.
Avoiding complicity is important, but it does not require discrimination. Businesspeople who want to follow their moral views can change jobs or business models. The options for those who are discriminated against, and for a society trying to build a culture of equality, are much narrower.
Some liberals think we should reject complicity claims because the harms of complicity are unimportant. Others think we should reject such claims because they rely on hateful moral views. Although I agree with the liberal conclusion, I do not support these reasons.
The law should take complicity concerns seriously. Most people care about complicity: We want to live following our own values and not contributing to things we view as wrong. Much like their conservative counterparts, liberals try to avoid complicity. For example, they invest in socially responsible investment funds and participate in divestment movements. They boycott governments and businesses, disinvite speakers, and support military conscientious objectors.
The government should not condemn people’s complicity concerns simply because it rejects their values. Even if their values are based on prejudices, their desires to lead authentic lives are not. Nor should we usually want the government to condemn our opponents’ moral views.
The government cannot be wholly neutral; it must decide whether to protect same-sex marriage. But once it decides, it should not demonize the losing side, which would only increase polarization. We can imagine liberals seeking conscientious exemptions from conservative laws, and would not want lawmakers to label liberal commitments evil.
Nevertheless, we should reject most complicity-based exceptions to discrimination laws.
Discrimination laws help to build a society based on equality and respect. Historically, excluding Black people from hotels and restaurants entrenched inequality by expressing the belief in Black inferiority. This history explains why early discrimination laws targeted restaurants and hotels. The same idea applies to sexuality. Being refused service while preparing for a wedding conveys a potent message of inequality. Same-sex couples have a legal right to marry because they are equal members of society — and to be treated like equal members, they need equal access to wedding services.
Religious people need not discriminate to follow their values. Those concerned about complicity can live according to their faith by choosing jobs unrelated to weddings. Of course, this might require sacrifice. The sacrifice would have been small for Lorie Smith, whose case made it to the high court before she entered the wedding industry. For bakers and photographers, it might require a greater adjustment to their business model. For wedding planners and innkeepers, it might require different careers altogether.
Were the political roles reversed, conservatives would rightly demand that liberals make these sacrifices. For example, a religious fundamentalist might ask a feminist web designer to create a wedding website. The designer might refuse because she thought gender roles in religious marriages oppressed women. Religious people would want the designer to provide the website or exit the wedding design business, even at some cost to her livelihood.
Such sacrifices are necessary to create a society where we are treated respectfully by those who disapprove of our ways of life. Career restrictions represent a smaller sacrifice than being asked to accept the indignity of inequality.
Scott Altman is Virginia S. and Fred H. Bice Professor of Law at USC Gould School of Law and is an expert in jurisprudence, property and family law.