Why Ross Douthat Is Wrong About the Hobby Lobby and Gay Wedding Photography Cases

The law, lawyers, and the court.
April 7 2014 6:22 PM

Who Deserves Religious Liberty?

What Ross Douthat gets wrong about the Hobby Lobby and gay wedding photography cases.

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Here’s another way to get to a similar pluralistic result. I am all for dissent and criticism by religious folk of all stripes. Shout it from the rooftop of your house, or your church, or your school or missionary group or your service project. Just don’t invoke the shield of religion if you’re the owner of a business who has chosen to incorporate for profit. Because at that point, you are shielded from personal liability. You’ve opted to become a “legally distinct entity,” as the Supreme Court has put it. For all intents and purposes, because it serves your interests, you’re not you anymore.

Unless I’m missing something, Douthat didn’t address this part of my argument. He said I’m only willing to allow for the religious liberty of powerless groups, like the Amish, who won the right to keep their children out of regular school, in the face of a state law that required attendance, back in 1972. Douthat points out that if the Amish kids disagreed with their parents, then the cost to them was real and searing. True. But courts generally treat the family unit as one in this kind of case, letting the parents speak for the children, and I was going along with that legal framework.

Here’s another Supreme Court decision I’m OK with: a 1987 ruling in which the court allowed the Mormon Church to fire a building engineer for “failing to observe the highest standards of Mormon belief and practice.” The engineer was building a gymnasium run by the church, which isn’t the same as building a temple. But the court recognized the trickiness for a church of separating its religious activities from its secular ones. And the justices emphasized the nonprofit nature of the church as a whole. So this ruling makes sense to me, even though it does impose an obvious cost on the guy who got fired. I can see balancing the scales differently when a church itself is involved. And I’d feel the same way if another case like this substituted Catholic or Baptist for Mormon.

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At the National Review, Yuval Levin says my conception of religious liberty comes out of a progressive vision in which “society really only consists of individuals and the government, and that the various institutions and power centers that lie between the two are inherently illegitimate and should either be seized or pushed aside when they get in the way of public-policy objectives.” I hope I’ve made it clear why this is not an accurate description of my position. I’d group churches and nonprofit organizations—just not businesses—with individuals. The history I keep flashing back to is the sit-ins at lunch counters in the South in the 1960s. Those businesses invoked their right to refuse to serve black customers. The courts said no, because they were open to the public. If you are a public accommodation, you have to be open to everyone. The same has to go for businesses today, in states that protect against anti-gay discrimination.

Douthat disagrees, in another piece called “The Terms of Our Surrender.” He argues again that requiring the New Mexico photography studio to serve a gay couple over its religious objections means the end of “carving out protections for dissent.” It’s like saying “you bigots don’t get to negotiate anymore.” And Douthat can call on Andrew Sullivan here, who has said he doesn’t want photos or cakes or flowers from a business that doesn’t want him as a customer. “We’re not talking logic here,” Sullivan says. “We’re talking religious conviction. My view is that in a free and live-and-let-live society, we should give them space.”

The pragmatist in me feels the same way. As Sullivan and Douthat both argue, the gay-rights side is winning. What harm does it really do if a few businesses insist on holding out?

If this were just about private lawsuits, I could live with that. But it’s not. It’s also about the responsibility of a state to enforce its own anti-discrimination laws. Here’s what the Washington attorney general recently wrote to a florist that refused service to a gay couple: “It is my job to enforce the laws of the state of Washington. Under the Consumer Protection Act, it is unlawful to discriminate against customers based on sexual orientation.” Exactly. Remember, this kind of discrimination is still lawful in plenty of states. But where it is not, businesses shouldn’t be allowed to flout the rules of their own communities. That’s my problem with Douthat’s argument. It’s what the New Mexico case comes down to—and why the Supreme Court was right to stay out of it.