Feldman: You can discriminate in the service of God, but not in the service of mammon
Supporters of same-sex marriage have been quick to condemn Arizona's "religious freedom" bill as pure homophobia. Not so fast. Unlike earlier legislative efforts to block gay marriage, this law, which would permit businesses to discriminate against same-sex couples on religious grounds, is probably constitutional.
Yet Gov. Jan Brewer still shouldn't sign it. To understand why, let's look at why personal discrimination is a protected right and business discrimination a social wrong.
Start with the all-important process whereby the religious right has lost the fight over same-sex marriage. In case after case, starting with the 2003 Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health, the courts have asked whether there is a legitimate reason for laws restricting marriage to one man and one woman. In the absence of such a reason, any prohibition is held to violate equal protection of the laws.
These cases all have a crucial feature in common: The real reason that many Americans still oppose gay marriage religious faith is systematically left out. Because under the Supreme Court's interpretation of the establishment clause of the U.S. Constitution, laws must have a primarily secular purpose, opponents of gay marriage can't win. The other justifications they have proffered sound like lame pretext because that's exactly what they are makeweights offered in substitute of the real motivation.
The Arizona law is different. It would protect from discrimination lawsuits business owners who used their religious beliefs as grounds to deny services to customers, such as a wedding photographer who refuses to be hired for a same-sex ceremony. True, a purely discriminatory law should not be constitutionally permissible just because it's framed in terms of liberty. But it's much too simple to claim that the Arizona law is motivated purely by hate. As religious conservatives have watched the victorious march of the gay marriage right through the courts, they've become increasingly nervous that their own religious liberty is under attack.
Some of this fear is no doubt spread by cynical gay marriage opponents who want to frighten the faithful with absurd images of priests and ministers compelled to perform same-sex marriage ceremonies against conscience. Yet the fear nevertheless has a basis in reality for believers who might in fact find themselves obligated to provide services to same-sex couples at restaurants, hotels and yes, weddings. It follows that the proposed Arizona law may well be constitutional. It is grounded in a genuine constitutional liberty with a long tradition in American life, not (only) in prohibited discrimination. And many people in Arizona and elsewhere actually believe that liberty is in jeopardy.
Nevertheless, the Arizona law is a mistake. To see why, consider history. After the Civil Rights Act of 1964, segregationists in the South could and did argue that their constitutional right to associate should permit them to refuse to serve blacks in their businesses. The religious liberty right has the same constitutional status as the right to associate, each of them grounded in the First Amendment. Should a Christian-owned motel chain have been able to bar blacks or mixed-race couples out of a sense of religious liberty? The answer, rather obviously, is no but the reason requires explanation.
Personal discrimination is a protected constitutional right. If I only want to marry a person of my own religion, that may be morally right or morally wrong, but it is my fundamental right to choose. The government could not pass a law prohibiting me from discriminating in my choices of romantic partners or friends, because these decisions are too closely connected to my conscience and sense of self.
The same is not true of whom I serve at my lunch counter a public accommodation. Even if I may make friends with my customers, I am in it to make money, not to form close personal bonds. My door is open to all because that's just good business. I may insist that, in good conscience, I can't serve people whose morals I reject. But the government is justified in ignoring that concern, because my general rule is that everyone can come in. I am only making exceptions on an ad hoc basis and that basis is unprotected discrimination.
Private associations form a difficult middle ground, with which the Supreme Court has struggled. To oversimplify a bit, the rule is that if the club will openly and credibly say that racial or sexual discrimination is part of its core mission, then the right to private association trumps anti-discrimination. But the Arizona law goes too far beyond this judicial guidance: It allows anyone to get an exemption from the state's anti-discrimination laws by asserting a sincere religious belief as the motive to discriminate.
This is an invitation to a society none of us would like to live in, where segregation could be reintroduced at least as a matter of state law so long as it went under the banner of religious liberty. It's no answer to say that federal law protects against racial discrimination. State laws that ban racial discrimination are also an important part of the civil-rights structure. Gutting them would be a terrible mistake.
The religious liberty line should be drawn where it always has been: You're free, if you wish, to discriminate in the service of God, but not in the service of mammon.
Noah Feldman, a law professor at Harvard University and the author of "Cool War: The Future of Global Competition," is a Bloomberg View columnist. Follow him on Twitter at NoahRFeldman.