UPDATE: Two conservative groups have just filed a lawsuit against civil rights protections for sexual orientation and gender identity, essentially asking the courts to decide between the right to religious freedom and the right to be served by a business. The suit claims the right to religious freedom is more fundamental. The efficacy of the suit isn’t interesting to me, but rather that it brings out precisely the dilemma I talk about below.
Here in Indiana the law of the land now includes a notorious piece of legislation known as RFRA – the Religious Freedom Restoration Act. RFRA, signed into law earlier this year, was passed in large part to provide legal protection to businesses and workers from having to violate their religious and moral consciences. The concern was that a business should not have to serve someone if it feels the religious/moral beliefs of the owner would be compromised by doing so. The context and outcry were very clearly about whether a business could deny service to a person, because of religious beliefs, on the grounds of a person’s sexual orientation or gender identity.
Some legislators are, in response, trying to add sexual orientation and gender identity as protected classes by civil rights law so that businesses cannot discriminate on these grounds. Civil rights protections on all levels are understood to extend to “public accommodations,” which include businesses. Our current debate is being framed as “LGBT civil rights vs religious freedom.”
Many have expressed a desire for all voices to be heard and all concerns addressed, and on the surface this is surely a preferable solution to most concerns. Except, however, when some of those voices have discriminatory effects. The fact of the matter is, yes, civil rights protection does indeed limit a person’s freedom to express her moral and religious views in certain ways. We shouldn’t hide from that.
No doubt, any limitations of rights so basic as the freedom of expression, religion, etc. ought to be determined in fear and trembling and only as often as absolutely necessary. But, for example, if it were according to someone’s religious or moral beliefs to deny service to someone on the grounds race, gender, age, nationality, or religion, such denial of service would not be permitted. Sometimes, albeit rarely, we decide as a society that certain expressions of freedom are an offense to human dignity and corrosive of the common good, and that therefore they ought to be limited (this is why no freedom is absolute). In the instance of civil rights, I think we’re better for it.
I don’t prefer to approach this purely as a conflict between the individual rights of a potential business owner and those of a customer. Surely one could make a case on these grounds, and offer good reasons, but even still I’m not sure you can avoid the fundamental question of why. Answering the “why” question means reaching outside of the framework of procedural rights alone. I’m not sure that a debate between conflicting rights isn’t ultimately a debate over the good.
How the law stands, regardless of which side it takes, inevitably has something other than a neutral effect. It either allows for the discrimination or it doesn’t (or, on the other hand, it either protects this form of religious/moral expression or it doesn’t). This points to a fundamental issue in liberal political philosophy, which is the same issue I’ve discussed before: in liberal societies there is sometimes a conflict between one’s right to do something and what society deems to be good.*
Some liberal theorists like John Rawls have argued that a person’s right ought to be given priority over any legislated and enforced moral perspective. The state or society should remain morally neutral. I think the spirit of what Rawls is aiming at is right; that is, a liberal society is only meaningfully liberal if it makes considerable space for individuals to choose and live from their own moral perspective. But this ought not lead us to think that the right deserves priority over the good or that a society can, let alone should, attempt to remain morally neutral on all issues.
As a society we have determined that it is good that people cannot be denied public accommodations because of their race, sex, age, ethnicity, nationality, disability, or religion, even though this amounts to the limitation of certain freedoms. We’ve taken a moral position and willingly enforce it. We’re not neutral on these points because attempting to be so is to permit and protect a kind of marginalization that is an affront to human dignity and corrosive of the common good. The imposition it places on individual liberty is unavoidable, and the crux of the issue is not exactly that one right trumps another one.
We should add sexual orientation and gender identity to the list of protected statuses in our civil rights legislation in Indiana. This is my position and it ought to be the law if this decision is to be made democratically, as I argue it should. I don’t support this merely because I can reason all the way there by way of individual rights. Rights serve the good and are grounded in moral convictions, not the other way around. For moral reasons we should prohibit discrimination against people on the grounds of sexual orientation and gender identity.** We need not hide from the fact that by doing so we’re limiting some individual freedoms. We shouldn’t be happy about this fact or parade it around, but we can justify it on the grounds that it is morally necessary. The effects of such laws are never morally neutral, and so neither should our reasons for passing them (solely) be.***
* You might suggest that it is the Supreme Court’s job to do this. Often SCOTUS decides certain rights are preferable because they preserve the highest or broadest good. Yet it’s incredibly troubling that such issues are decided by the least democratic and representative branch of the US government.
** I’m not trying to imply that this is self-evident. I’m interested here in thinking through how we decide the issue, not what we decide about it – even though my opinion is clear enough.
*** But who gets to decide these moral issues? We do! Society, democratically, should. And slippery slope arguments aren’t convincing here. We already are deciding these things, even if in effect. RFRA is an example. The question isn’t whether our laws should always be morally neutral, it’s that because many of them are not and can’t be we should argue and think accordingly. An over-reliance on individual rights alone can impoverish the public discourse, emptying it of substantive arguments (Sandel’s point).