Abstract

Should a liberal state grant religious vendors exemptions to generally applicable antidiscrimination law so they may refuse service to LGBTQ customers in the marketplace, such as in the provision of wedding cakes to same-sex couples? Andrew Koppelman thinks those exemptions are warranted when the marketplace is competitive enough that LGBTQ customers can acquire the goods they are denied elsewhere at roughly equal cost and quality. I suggest that this presents a problem for opponents of such exemptions in the competitive marketplace: it seems to make every party better off in terms of opportunities to achieve their conception of the good. LGBTQ citizens can still acquire goods and do not suffer material harms. Meanwhile, religious citizens now escape violating their religious commitments that are imperilled by serving LGBTQ customers. There is a ‘trade-in’, rather than a trade-off, of citizens’ interests here.

I assume that liberal states ought to decide exemptions cases on the basis of a liberal-neutral or public reason framework. That kind of framework is ultimately concerned with respecting the equal standing of citizens through securing their shared interests. Since the equal standing of citizens is defined as opportunities to exercise their moral powers to achieve and revise a conception of the good, and hold a sense of justice, it seems there is a clear case for allowing exemptions to discriminate against LGBTQ + customers in a competitive marketplace.

This paper objects to that conclusion by noting a crucial assumption in the foregoing argument: the equal standing of citizens is necessarily linked or reduced to opportunities to achieve one’s conception of the good or one’s commitments. Consequently, granting (or denying) religious exemptions follows a logic of ‘balancing’ between different citizens’ conceptions of the good implicit in many approaches in the literature. But why should we link citizens’ standing to conceptions of the good in this context?

I identify two kinds of (public) justification for this reductionist assumption in the literature that appeal to the interests of religious citizens: fair opportunity and integrity. I critique both, weakening the case for exemptions to discriminate against LGBTQ + customers and showing that they may not justify religious exemptions in other similar cases either, generally speaking.

First, Jonathan Quong and Jonathan Seglow have suggested citizens share interests in opportunities to combine religious or cultural pursuits with important civic opportunities such as employment and education. I argue that Quong’s argument for exemptions relies on a faulty analogy while Seglow’s argument relies on a misunderstanding of the value of nonexploitation or fair play between religious citizens and wider society.

Second, there is an integrity-based justification for religious exemptions championed by Cécile Laborde and Paul Bou-Habib. I suggest that the integrity interests of LGBTQ citizens are also at stake in the case we are considering – and there are reasons to think that it is in fact more at stake by granting an exemption. At the same time, religious integrity is much less burdened by serving LGBTQ customers than proponents of exemptions think.