Liberals think it obvious that evangelical Christians should not have a constitutional right to discriminate in hiring or in deciding which customers to serve on the basis of sexual orientation. I agree with these conclusions, but I think the question whether good faith religious liberty claims should be respected in the case of customer discrimination should be regarded as a closer question than most liberals would concede.
It is not that I have appreciation for the religious position taken by evangelicals. I enjoyed a sermon on Easter by a Methodist minister who said she regarded those who discriminate on the basis of sexual orientation as wolves masquerading as the Lamb of God, and she found it hard to believe that Jesus died on the cross, so that Christians could discriminate against people on the basis of who they love.
Nonetheless, religious liberty claims should not be dependent on whether we subscribe to the religion in question. Quakers should be entitled not to fight in wars whether or not we think the just war doctrine is correct and the Native Americans in Employment Division v. Smith were wrongly denied the religious right to ingest peyote in their religious ceremonies. Religious liberty rights should have particular force when a believer in good faith professes a religious obligation to do something or not to do something.
But religious liberty claims have to give way when the government interest is sufficiently strong. In the employment context, because job opportunities are scarce, equality protections against discrimination are of substantial material importance. What is the interest of gays and lesbians in not being discriminated against as customers? Frequently, discrimination in the consumer market will be of no material importance. A gay or lesbian citizen in most circumstances will be able to purchase the product or service elsewhere. Let us assume that. What then is the harm of the discrimination?
The harm is the stigmatizing effect of the discrimination, and the failure to respect the equal citizenship of gays and lesbians by the discriminator. This is reinforced by the state permitting the discrimination. Government has a strong interest in assuring that gays and lesbians are equal citizens. Permitting discrimination in employment and consumer markets should not be tolerated.
This brings me to the main point of the post. Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.
Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our C onstitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).
Which is worse? Denying the sale of a product on the basis of sexual orientation because of a traditional, albeit untenable, religious position or engaging in a homophobic diatribe designed to stigmatize gay and lesbian citizens on the basis of who they love? I think the question answers itself.