Religious Liberty, Same-Sex Marriage and Public Accommodations

Abstract

Against the legal recognition of same-sex marriage, many advocates of religious liberty argue that those who adhere to “traditional” understandings of marriage should not be forced to “recognize” same-sex marriages. This includes exempting individual business owners engaged in commercial activity from anti-discrimination laws. I argue that such exemptions overreach. Equal access to the commercial arena is an essential feature of life in America’s commercial republic, which means that public accommodations should not be given exemptions on religious grounds. Yet this does not require business owners to morally approve of same-sex marriage; nor does it require them to grant same-sex marriages “equal concern and respect.” Rather, it requires simple toleration, which is compatible with moral disapproval. Indeed, I argue that this is the very sort of toleration at the foundation of religious liberty in America. Efforts to grant religious exemptions to anti-discrimination laws invite the return of religious conflict and discrimination. Prohibiting discrimination on the basis of sexual orientation in public accommodations is necessary not only for equal citizenship, but to maintain the regime of toleration that undergirds religious liberty in a pluralistic democracy.