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The Problem With Antidiscrimination Laws

April 13, 2015

By Richard Epstein

My column of last week, The War Against Religious Liberty, addressed the combustible mixture of the antidiscrimination norm and religious liberty, as it applies to ordinary businesses that do ordinary things, like taking photographs and baking wedding cakes. In dealing with that issue, I implicitly accepted the common premise that the antidiscrimination laws as they apply to public accommodations are an acceptable part of the American legal culture, so that the one remaining serious question is what governments should do when small businesses in competitive markets are asked to perform services that cut against their sincere religious beliefs. For the most part, these conflicts are rare, but they do occur with regularity when religious Christians object on grounds of conscience to providing services for same-sex marriages and similar commitment ceremonies.

The standard method for dealing with these conflicts is to introduce a three-step balancing test under both the federal and state versions of the Religious Freedom Restoration Act. The first step asks whether a presumptive exemption is appropriate because the law places a substantial burden on the exercise of a religious liberty. That question is answered in the affirmative when individuals are asked to engage in close collaborative efforts. But it is answered in the negative when the transaction involves only the sale of prepackaged and standardized goods in routine market transactions. Next, where the burden is substantial, does the state have a compelling interest in imposing its antidiscrimination law? All too often today that interest is found, which leads to a simple decree that the service must be provided on pain of a fine or other sanctions, even for services readily available elsewhere. Finally, that state interest is to be satisfied in the least restrictive possible manner, which in this context means offering the requested service or going out of business.

This conventional approach sets up a large and persistent clash between the antidiscrimination law and religious liberty. Much of that problem rightly disappears if we ask the right fundamental question: why and when do we have any antidiscrimination law at all? In examining this issue, it is critical to return to fundamental legal principles that antedate the passage of the Civil Rights Act of 1964, which extended the antidiscrimination principle first to “public accommodations” under Title II of the Act, and then to employment relations under Title VII...

Read the whole article at the Hoover Institution's Defining Ideas blog: The Problem With Antidiscrimination Laws

Issue Categories : Free Speech & Religious Liberty,