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What We Mean When We Talk About "Compromising" Antidiscrimination Laws With Religious Exemptions

While attending a conference on creating religious exemptions to civil rights laws, I noticed a theme throughout: a standard plea for “compromise” to accommodate those with religious objections to antidiscrimination rules. And, although I don’t find arguments for religious exemptions for commercial businesses compelling, “compromise” does sound reasonable. The theory is that each side gives a little to get a little. But what does it really mean to “compromise” on antidiscrimination laws because some have religiously-motivated objections to those rules? Here, it seems that “compromise” means giving in and giving up on full equality.

In a case currently pending before the Supreme Court, the arts and crafts company Hobby Lobby and the furniture manufacturer Conestoga Wood Specialties are seeking to be exempt from covering the full range of FDA-approved forms of contraception in their employee health plans. The companies claim a right to engage in sex discrimination by denying their female employees coverage for certain forms of birth control based on the companies’ religious opposition to this basic health care. 

Should these companies prevail, their female employees will lose out on this important benefit—while the companies continue to cover the range of basic preventive services for their male counterparts. Moreover, because health insurance is a part of an employee’s compensation for work, female workers will see their overall earnings diminish (their male counterparts will not) and still have to pay hundreds of dollars out-of-pocket for this basic health care—and often more for the most effective forms of birth control. Or, because of cost, they will either use a less effective form of contraception or forgo it altogether. 

So, each woman employed by Hobby Lobby and Conestoga Wood—and the thousands of women employed by other companies seeking such an exemption—risks losing out on the numerous opportunities made possible by birth control. That includes education and participation in the workforce—what the Supreme Court described as “the ability . . . to participate equally in the economic and social life of the Nation.”   

And let’s not forget that using religion to resist antidiscrimination rules is happening in other contexts too, across the country. Bakeries in Colorado and Oregon have refused to sell cakes to same-sex couples celebrating their relationship; a florist in Washington State likewise refused to serve a same-sex couple. Two Illinois inns and a Hawaii hotel similarly refused to provide rooms to same-sex couples. And in one case that the Supreme Court recently declined to hear, a New Mexico photography business claimed that the First Amendment provides a right for it to turn away a lesbian couple who sought its services to photograph their commitment ceremony. Religiously-affiliated schools, too, continue to resist compliance with Title VII’s sex discrimination prohibition by firing women who are not married and become pregnant.    

In each of these cases, what is compromise? The employers and businesses do not seek some middle ground: they demand to be exempt from the law—carved out completely—at the expense of their female and LGBT employees and customers.

Allowing companies to pick and choose which laws they will comply with is not compromise. Shutting the door in the face of certain customers or employees, claiming that they can just go to another business or find another employer is not compromise.  The problem is not resolved by asserting that the gay customer or female employee may ultimately find a vendor willing to serve him or an employer willing to treat her equally. The discriminatory harm has already done once the first door shuts in their faces—one of the very harms antidiscrimination rules aim to prevent. 

Indeed, these businesses actually seek to renege on the compromise struck when they entered the commercial marketplace. That is, in exchange for the benefits of participating in the public marketplace, a business accepts certain rules—including constraints on its own behavior, like serving all customers. This principle is fundamental to antidiscrimination laws.  

The owners of Hobby Lobby want to retain the legal protections afforded them by becoming a corporate employer, but not follow through on its obligations.  The florists, inns, and bakeries are all businesses that open their doors to the public and benefit from being part of the commercial marketplace. They welcome those benefits, but demand to be released from the other half of the promise: treating customers in a nondiscriminatory and reasonable way.

The plea for compromise is that we should accept exemptions from equality laws because it’s the cost of getting those laws passed or keeping them in place. The theory is that because the law will apply to most employers or most businesses, we should accept that some will continue to engage in discrimination because they have religious objections to those laws. So, while many women and LGBT people won’t be told “we don’t serve your kind here,” we should tolerate the handful that will? 

That’s a twisted view of equality. It also obliterates any recognition of the harm done to those turned away because of their gender, sexual orientation, or gender identity. That’s a problem even if it is a handful of businesses (although it’s more than just a few businesses challenging these rules) or a small percentage of people that get the door slammed in their face.

So-called “compromise” was unacceptable when it came to race discrimination and has also been dismissed in response to sex discrimination. When a restaurant or university sought to use religious beliefs opposing intermingling of the races to deny equal access to customers and students based on their race or interracial relationships, the response was no. When employers sought to use religion to justify denying health insurance to married women, because they did not fit the Scriptural definition of “head of household,” the response was no. 

The very purpose of the laws at issue in each of these scenarios—past and present—is to promote equality. An exception when it comes to gender equality and LGBT equality is not a moderate or middle-ground position. It is not compromise. Instead, exemptions allow employers and businesses that seek to discriminate to continue do so, undermining the very purpose of antidiscrimination protections.  

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