Wednesday, July 15, 2015

"Religious Liberty" Discrimination Cases -- What If a Business's Conduct Is Speech?

Our conduct must conform to the dictates of the law, but we cannot be punished for exercising our right to freedom of expression. What if our conduct is expressive? How do these principles apply in situations where businesses have religious objections to same-sex marriage?

There is no reason to have any sympathy for businesses that discriminate on the basis of race, gender, religion, disability, or sexual orientation. It is well-established that if a business's conduct violates non-discrimination laws then it must be held accountable. Businesses that claim that their religion justifies acts of discrimination are doubly wrong. They are legally wrong because once they enter the marketplace they are subject to the laws of society, and they are morally wrong because it is shameful to call upon a just God to justify acts of discrimination.

On the other hand, it is just as fundamental that all persons have the right to freedom of expression. The government may not prohibit people from expressing their views, nor may it compel people to express views they do not agree with. As Justice Jackson said in West Virginia Board of Education v. Barnette,
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
The First Amendment is not absolute. There are many situations where the law can punish people for expressing themselves. We may not threaten others. We may not incite riots. We may not conspire with others to commit a crime. We may not expose children to pornography, or create a hostile environment for co-workers, or bully schoolchildren.

But if we are not directly causing harm the law must leave us alone. We must be allowed to express our own opinions, and we cannot be forced to express opinions with which we disagree.

In this regard there is a difference between the actions of a business that are simply conduct - providing a non-expressive service or product - and the actions of a business that are inherently expressive.

When a business refuses to provide a non-expressive product or service to a same-sex couple because the owner of the business is opposed to same-sex marriage, it is discriminatory conduct and is unlawful. When a business that is engaged in expressive activity refuses to express a message in support of same-sex marriage, however, that is speech, and the law may not punish that expressive activity.

Most businesses are clearly engaged in conduct, not speech. For example, if a caterer refuses to provide food to a wedding reception for a same-sex couple that is clearly an act of unlawful discrimination. Similarly, the owner of a wedding venue that is open to the public had better take all comers, just like the owner of a bed and breakfast. Business owners do not have the right to decide whom they will serve.

There are other businesspeople whose services are clearly expressive. Musicians, wedding singers, and disk jockeys, for example, are clearly engaging in expression. If they categorically refuse to serve any same-sex couples that would be discrimination on the basis of sexual orientation, but if they simply refuse to sing songs or play music that expresses something they profoundly disagree with it implicates First Amendment rights.

Finally, there are businesses whose products and services may be conduct or may be expression. Photographers, florists, bridal shops, and cake bakers that refuse to do any business at all with same-sex couples are engaging in acts of discriminatory conduct, but can they be forced to create art that expresses views they object to?

No baker could be punished for refusing to decorate a cake with a symbol of hate such as the Confederate flag. But a baker could be punished for refusing to sell a cake to the KKK.

The line will not always be easy to draw, but we must distinguish between conduct and speech.

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