Abstract
I investigate the normative and conceptual account of the relationship between public recognition and dignitarian, or egalitarian, commitments. I do so through addressing the normative dispute, sparked by legal cases such as Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018) and Fulton v. City of Philadelphia (2020), as to whether there are dignitarian grounds for rejecting religious exemptions to antidiscrimination laws. I argue that there are such grounds. Specifically, I argue that, if granted, such exemptions would inflict dignitary harms against LGBTQ individuals by denying them the public recognition necessary for reliably sustaining civic self-respect. Such exemptions would deny this recognition in two distinct ways. First, such exemptions would institutionalize humiliation of LGBTQ individuals as market actors. Second, such exemptions would condition market access for LGBTQ individuals on unequal terms. Through making this argument, I hope to make three primary, and related, contributions: (1) I introduce a concept of civic self-respect; (2) I argue that the normative import of public recognition is grounded in the good of civic self-respect; and (3) I rely on this normative framework to show how religious exemptions to public accommodations laws inflict dignitary harms. My argument is relevant to both political philosophers and legal scholars grappling with questions of why public recognition matters and what it demands.
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Notes
First, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), the Court reviewed a case in which the owner of Masterpiece Cakeshop, Jack Phillips, refused to sell a wedding cake to an LGBTQ couple on religious grounds. While the Colorado Civil Rights Commission found that Phillips’s refusal violated the state’s antidiscrimination law, the Court reversed this ruling on the grounds that the Commission exhibited religious hostility in its review of Phillips’s case. Second, in Fulton v. City of Philadelphia (2021), the Court reviewed a case in which a religious organization, Catholic Social Services, adopted a religiously grounded policy of refusing to certify LGBTQ couples as foster parents. The Court held both that Catholic Social Services did not constitute a public accommodation, and therefore was not subject to the state’s antidiscrimination law, and that Philadelphia could not enforce an antidiscrimination provision in a contract with the organization because that provision violated legal requirements of general applicability. Third, the Court declined to review Arlene’s Flowers Inc. v. Washington (2021), a case involving a religious flower-shop owner who refused to sell wedding flowers to multiple LGBTQ couples. As a result, the lower court ruling which rejected a religious exemption for the flower-shop owner stands. Similarly, in Lee v Ashers Baking Company Ltd and others (2018), the Supreme Court of the United Kingdom ruled in favor of a religious cakeshop owner who refused to sell a cake with a an explictly pro-LGBTQ message on the grounds that the refusal did not constitute discrimination.
This idea of public recognition of one’s equal status has played an important role in contemporary egalitarian discourse among both political philosophers and legal scholars. For example, some philosophers argue that public recognition of one’s equal status is required to realize and sustain that equal status (e.g., Waldron 2012a,b; Anderson 1999). Similarly, some legal scholars argue that discrimination is morally wrong when it denies the discriminatee recognition of her equal status or value (Lim and Melling 2013, pp. 711–712; Hellman 2008, pp. 35–38; Eidelson 2015).
My primary aim here is to address the question of whether we ought, as a matter of political morality, to grant religious exemptions to antidiscrimination laws. However, this philosophical analysis is not wholly divorced from the question of how legal doctrine bears on such exemptions, as careful attention to the legal question can help us make progress on the moral one, and vice versa. I will therefore highlight some especially important connections between the philosophical inquiry undertaken here and the formal legal doctrine surrounding rights of relgious liberty as it exists within the United States.
The idea of a ‘compelling interest’ is important within U.S. legal doctrine surrounding rights of religious liberty. There are many circumstances under which the Court will only deny religious exemptions to a law if that law is narrowly tailored to serve a compelling interest. There is no precise legal test for identifying a compelling interest, but the Court has described such interests as ‘fundamental, overriding interest[s]’ (Bob Jones University v. United States 1983, p. 604). Identifying compelling interests thus unavoidably involves a kind of normative reasoning about what is fundamental or overriding in context of delimiting the scope of individual rights.
The dignitarian approach has roots in caselaw beyond Heart of Atlanta Motel, Inc. v. United States (1964). In Newman v. Piggie Park Enterprises, Inc. (1968), the Court relegated to a footnote its dismissal of the idea that the Free Exercise Clause grounds a right to discriminate based on race (Newman v. Piggie Park Enterprises, Inc., 1968, fn.5). And in Bob Jones University v. United States (1983), the Court held that ‘eradicating discrimination in education’ was a compelling interest in the context of a free exercise challenge (Bob Jones University v. United States, 1983, p. 604). Moreover, the Court has acknowledged a legal requirement to recognize the ‘individual dignity and autonomy’ of LGBTQ individuals (Obergefell v. Hodges, 2015, p. 2597). And in Roberts v. U.S. Jaycees (1984) the Court recognized that discrimination on the basis of sex ‘deprives persons of their individual dignity’ (Roberts v. U.S. Jaycees, 1984, p. 625).
Laycock’s argument builds on First Amendment speech jurisprudence according to which the mere offensiveness of speech is not a compelling reason for restricting it (see, e.g., Terminiello v. Chicago, 1949; Feiner v. New York 1951). Laycock points specifically to Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) wherein the Court wrote that the objective of ‘forbidding acts of discrimination toward certain classes…to produce a society free of the corresponding biases’ was not a compelling interest, but was instead ‘decidedly fatal’ in the context of free speech claims (Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 1995, pp. 579–580).
A reviewer helpfully pointed out that my argument seems to imply that all entitlements, including those related to distributive justice, are grounded in this status. Thus, my argument seems to implicitly reject the idea that relational and distributive egalitarianism give rise to independent, irreducible claims. While I do believe that all civic entitlements are ultimately grounded in this status, my argument here does not depend on this. For my argument here to work, we need only accept that my reasoning applies to all and only those entitlements grounded in relational egalitarian justice, whatever they may turn out to be.
For a detailed discussion on the nature of the expressive function of law and its role in realizing equal social relations see Anderson and Pildes (2000).
Elizabeth Sepper helpfully highlights the connection between libertarianism and the competitive market approach (Sepper 2015, pp. 149–153).
Although we have been discussing religious exemptions to antidiscrimination laws in the context of religious vendors refusing LGBTQ customers, this argument ostensibly supports exemptions in other cases, including service-refusals based on race or alternative religious views which may conflict with the religious views of vendors.
Patten expressly includes freedom from discrimination as part of that standard liberal package (Patten 2014, pp. 166–167), but this does not settle the question of whether the competitive market approach satisfies this requirement.
A reviewer helpfully noted that throughout my discussions of the difference-grounded conception and the neutrality conception I consider the recognition interests of the religious business owners, but that I did not consider those interests in my discussions of the assurance-grounded or libertarian-based conceptions of recognition. This shift in focus occurs because the conceptions of recognition arising out of the multiculturalism literature explicitly ask us to identify competing identities or conceptions of the good and determine how they fare; the libertarian and assurance-grounded conceptions do not have this structure.
This concept is significantly indebted to John Rawls, who writes that self-respect has two constitutive components: the ‘sense of [one’s] own value’, including ‘the sense that one’s plan is worth carrying out’; and ‘a confidence in one’s ability…to fulfill one’s intentions’ (Rawls 1971, pp. 440, 178).
Other less intimate groups work as well. Social organizations, such as sports clubs, will have special communication channels, events, and shared resources for members. Professional organizations, too, will have communication mechanisms, shared workspaces, and social events for their members. Belonging to these groups consists in your standing to be an active participant in whatever activities, communications, or spaces are core to that social group, on equal terms with the other members.
Studies on how confidence gaps between male and female students affect their performance in certain subjects, such as mathematics and computer science, are illuminating here. They suggest that lacking confidence, or self-efficacy, can negatively affect both achievement (see, e.g., Stringer and Heath 2008; Kenney Benson et al. 2006; Lee 2006) and overall participation (see, e.g. Pajares 1996; Sankar et al. 2015, p. 8).
But it is only the grounds of civic self-respect to which states are required to provide access. So, this conception of public recognition is satisfied in circumstances where an individual would be justified in attaining civic self-respect but does not do so due to an abnormal psychology.
I rely on Bruce Ackerman, who writes that personal humiliation ‘strip[s] the victim of [an] ongoing presumption of competence’ within a particular sphere and that ‘humiliation is institutionalized by social practices which strip an entire group of this ongoing presumption’ (Ackerman 2014, p. 139).
With the possible exception of strong libertarianism, civic self-respect is compatible with each of the conceptions of public recognition that we have considered here. For instance, the idea of civic self-respect folds in considerations from the assurance-grounded conception and could be adopted as the limit on accommodation that was missing from both the difference- and neutrality-grounded conceptions.
Recall that this kind of missing link similarly exists within the dignitarian approach to religious exemptions insofar as authors emphasize the harm of public exclusion and humiliation without providing an explanation for why such harms generate obligations for state action. This kind of link is also arguably missing in conceptual work on discrimination which focuses on why discrimination is morally wrong (e.g., Hellman 2008, Eidelson 2015). In other words, the need to establish this link was a core motivation for this project, and insofar as the difference-grounded conception fails to provide such a link, it is especially ill-suited for our purposes.
One might question how this analysis applies to private organizations, such as religious groups and social clubs. I think there is an important distinction between the kind of dependency that can arise in the marketplace and the dependency that can develop within these groups. In other words, we can imagine an individual able to pursue many conceptions of the good and realize her legal entitlements while still lacking access to such groups. This is not to say that such groups are not important (nor that a state could ban access to such groups), but it is to say that exclusion and humiliation within these groups may be more acceptable than exclusion and humiliation within the marketplace.
Here I follow others who emphasize that ‘functioning as an equal citizen involves not just the ability to effectively exercise specifically political rights, but also to participate in the various activities of civil society more broadly, including participation in the economy’ (Anderson 1999, p. 317). This includes legal scholars who argue that a ‘free and democratic society … promotes equal access to the free market’ (Singer 2015, p. 949).
This is the view of the product adopted by Justice Kagan in Masterpiece Cakeshop (2018). For criticisms, see Justice Gorsuch’s concurring opinion in Masterpiece Cakeshop (2018) rejecting this analysis.
I think we should see the commitment to a norm of nondiscrimination as quite demanding and as generally precluding claims of conscience from justifying discrimination within the marketplace.
The Court has also rejected requests for religious exemptions which would facilitate race-based discrimination (Newman v. Piggie Park Enterprise, Inc. 1968, 402, fn. 5).
Koppelman articulates well how LGBTQ individuals have faced, and continue to face, such treatment within various aspects of their lives (Koppelman 2020, pp. 44–45).
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Acknowledgements
I would like to thank Deborah Hellman, Jeffrey Howard, Daniel Layman, Micah Schwartzman, and Adam Swift for their helpful discussion and comments on earlier drafts. I am also grateful to the two anonymous referees whose careful revisions and challenges made the project much sharper and stronger.
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Wilson, J. The Grounds and Demands of Public Recognition: How Religious Exemptions Corrode Civic Self-Respect. Res Publica 28, 339–363 (2022). https://doi.org/10.1007/s11158-021-09529-w
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DOI: https://doi.org/10.1007/s11158-021-09529-w