‘Discrimination, Non-Complicity, and Reasons that Mask Disdain’. With Scott Altman and Alan Patten

38 Replies to “‘Discrimination, Non-Complicity, and Reasons that Mask Disdain’. With Scott Altman and Alan Patten”

1. Thank you, Alan, for your clear and generous explanation of my argument and for your probing comments. Thanks also to Pea Soup for making our discussion possible, and (in advance) to everyone participating.

   Alan raises three challenges that go to the core of my argument: (1) whether a simpler explanation suffices; (2) whether the vendor’s underlying aims matter; and (3) whether disdain is always unacceptable.

   1. Is there a simpler explanation? Alan offers a simple and appealing reason to favor customers over vendors: customers have more at stake and cannot protect themselves from harm. In contrast, vendors have options for avoiding complicity without discriminating. This asymmetry in stakes and options justifies preferring customers.

   Both vendors and customers have practical alternatives. Customers can often find goods and services elsewhere, and vendors can shift their businesses to avoid both complicity and discrimination. However, customers face the humiliation of being turned away because of their identity or of being told in advance that people like them will not be served. Since this humiliation cannot be avoided (and might spread under political pressure), we should deny vendors the right to discriminate. Customers bear an unavoidable dignity burden that vendors do not.

   Alan’s asymmetry point is appealing, but I think the asymmetry between vendors and customers is only apparent. I agree that if we permit discrimination, then customers face unavoidable humiliation. But if we forbid discrimination, vendors face a parallel form of unavoidable humiliation. The law excludes them from the wedding services market because of their characteristics (in this case, their religious commitments to non-complicity). Being told you are unfit to serve customers because of your faith might be as humiliating as being told you are unfit to be served because of who you love.

   One might argue that the humiliation of religious vendors is less harmful given their social position. Unlike LGBTQ customers, conservative Christian vendors are not victims of widespread oppression. Perhaps that is right, but I was aiming for a less controversial account of why we should regard vendors and customers as not symmetrically situated.

   Alan also suggests that vendors benefit from participating in markets and, for that reason, cannot expect to cut off vulnerable people from those markets’ benefits. However, customers also benefit from participating in markets. Although there are many differences between buyers and sellers (and we tolerate discrimination by customers that we do not tolerate from sellers), we might equally ask why buyers should expect to cut off vulnerable sellers from participating in those same markets. I suppose we could say that sellers bring their vulnerability upon themselves when they decide to avoid complicity. But if we think that complicity avoidance is generally a morally acceptable practice, this line becomes less appealing. Or perhaps we think sellers have stronger duties than buyers to maintain equal opportunity in markets. But I do not think we can infer such role-based duties from the existence of public accommodation laws (or the absence of specific conscience exemptions) since it is those very laws we are trying to justify. While Alan’s asymmetry argument is appealing, I think it does not fully explain why vendors and customers are differently situated.

   My core claim, admittedly, is not simple. But I think it offers a way to tell vendors that their claims are not comparable to those voiced by customers—that there is an asymmetry—without comparing their histories of oppression or blaming vendors for wanting to avoid complicity.

2. 2. Why do the vendor’s underlying aims matter? As Alan rightly points out, in standard legal exemption cases, we do not ask about the morality of the exemption-seeker’s aims. I embrace this general norm, but I propose a limit to this non-inquiry norm and offer the Inflammatory Request case (about Sue borrowing a lighter from Bob to burn him in effigy) to illustrate its core motivation.

   Alan questions whether the Inflammatory Request example is comparable to vendor discrimination. Bob owes Sue his cooperation, which requires him to consider her needs when he decides whether to lend the lighter. But because she has no right to Bob’s lighter, Bob has discretion to consider other factors, including his need for the lighter and Sue’s disdainful purposes. Perhaps this example tells us nothing about disputes governed by rights, which might preclude considerations such as self-interest and the rightsholders’ disdain.

   I agree that my analogy is imperfect in this way. Rights (on some accounts) exclude otherwise applicable reasons. However, I did not view the lighter analogy as offering a free-standing argument for my position. I hoped it revealed an intuition about reasons, illustrating how disdain dressed up in neutral language might render neutral reasons unacceptable. Accepting disdainful reasons is humiliating and self-denigrating.

   If one shares this intuition about Bob and Sue, I think it can translate into an argument that applies to cases involving rights. Let’s assume you accept the claim that vendors have prima facie moral rights to avoid complicity, and customers have prima facie moral rights to avoid discrimination. Imagine that lawmakers are trying to decide between a discrimination ban that limits the vendor’s right to non-complicity or a ban with an exception that limits the customer’s right to non-discrimination. I claim that lawmakers should ask whether the reasons in favor of each option can be accepted by the group it disadvantages.

   My analogy enters the argument at this point. If reasons for laws must be acceptable to those the law disadvantages, then humiliating and self-denigrating reasons should not count. Just as Bob should not accept Sue’s reason (social cooperation on campus) when it masks disdain (we need the lighter to burn you in effigy), so too LGBTQ people should not accept the vendors’ reason (non-complicity) for favoring the law when it masks disdain (I need to avoid contact with your sinfulness). Vendors have no comparable reason to reject the customer’s justification for non-discrimination because customers’ reasons do not rely on disdain for the vendor. Since there are rights on both sides of this debate, I wonder whether the exclusionary nature of rights prevents each side from examining the justification offered for resolving the conflict.

   I hope this account explains why we should sometimes look beneath acceptable reasons to see masked disdain. We should usually ignore the underlying goals of people seeking exemptions because most exemptions, such as those for Sabbath worship or military service, imply no disdain. Admittedly, this account does not yet explain why we should ever accept disdainful justifications for discrimination, as I say we should in the priest example. Perhaps I will leave that question for later discussion.

3. 3. Is disdain always unacceptable to the person at whom it is targeted? Alan asks if people should always reject reasons that express disdain for them. He notes one of my examples, a caterer refusing to serve a banquet celebrating a recent Russian military victory against Ukraine. I offered that example for a different purpose, but it seems fair to ask that I analyze it under my theory.

   Alan offers several interesting observations about the example. He wonders if the connection between the victory celebration and being of Russian origin renders this an example of national origin discrimination. The example might also have been analyzed as ideological discrimination. Some places ban discrimination against customers or employees based on political views or speech. Employment discrimination provides a real-world counterpart to this hypothetical. The Metropolitan Opera fired singer Anna Netrebko because she refused to condemn Putin for invading Ukraine.

   Alan’s main point is that he sympathizes with this caterer because her judgment is perfectly reasonable, and the customers might see this as an opportunity to rethink their home country’s behavior (instead of resenting the vendor’s disdain). I share Alan’s sense that the caterer’s position is sympathetic. But I am not sure I agree about the best way to address that sympathy.

   There are two distinct lessons one might draw from Alan’s sympathy for the caterer. First, it might support narrowing the scope of anti-discrimination law. Second, it might support exemptions from discrimination law when a vendor’s disdain is reasonable. I am unsure which Alan meant, but I want to examine both.

   The first idea would exclude the Russian celebration from the scope of anti-discrimination law (and thus the need to grant an exemption). We could declare that rejecting a Russian military celebration does not constitute national-origin discrimination (because not all Russians support the war), and that discrimination based on political views or speech is permissible (which it is in most places).

   I do not favor this solution, for reasons I am happy to discuss if folks are interested. But the approach nicely illustrates that sometimes people should accept reasons that mask disdain toward them. When we permit discrimination based on a characteristic, people left unprotected by the law must tolerate exclusion for disdainful reasons. For example, I note in the article that a vegan mall owner may avoid complicity by refusing to rent space to a butcher. Because carnivores are not a protected class, the butcher must accept this exclusion, even though it expresses disdain. This shows that when a trait is unprotected, disdainful reasons can be legitimate. The same conclusion might apply to the caterer who refuses to work on a Russian military celebration. So, while narrowing the scope has dangers, it fits within my framework: unprotected traits can legitimately be grounds for exclusion, even when disdain is expressed.
   Alternatively, Alan’s sympathy might be read not as a call for narrow laws, but as support for exemptions in cases of reasonable disdain. Several scholars (Sepinwall and Nehushtan, though in different ways) embrace versions of this idea. These positions are appealing in part because they allow us to protect sympathetic vendors, such as the caterer asked to provide food for a Russian military celebration, while banning pernicious discrimination. The difficulty is that once we allow discrimination for reasonable disdain, we invite conflict over whose disdain is reasonable. Religious vendors see their opposition to same-sex intimacy as reasonable. Restaurants that refuse to serve Zionists, or law firms that refuse to hire pro-Palestinian protesters, also think their views are reasonable.

   Basing discrimination laws on assessments of reasonable disdain is troubling. Depending on the exact rule proposed, it might be hard to justify it on principles available to non-perfectionist liberals. Moreover, in our polarized circumstances (and with a deeply untrustworthy government), it seems ill-advised to embrace rules that allow discrimination only by vendors whose views the government deems reasonable or against customers the government thinks we should disdain. I favor a solution that precludes a vendor’s discrimination without declaring his views (as opposed to his behavior) unreasonable.
   Between the two options, I prefer narrowing the scope of discrimination laws rather than allowing exceptions for discrimination based on reasonable disdain. This avoids government judgments about reasonableness while still permitting some disdainful exclusions. This approach better fits liberal norms and is less likely to exacerbate polarization. I can see arguments for rejecting both views and compelling the caterer to serve these customers. But I leave those issues for later.

   These are quick (and perhaps overlong) thoughts. I look forward to hearing how others weigh these issues, and I remain grateful again for Alan’s generous engagement.

4. Thank you to Scott and the editors for inviting me to participate in the discussion of this fantastic article. The puzzle that lies at its core—why should vendors have to act contrary to conscience in order to avoid discrimination?—is important and really difficult. It is the subject of two recent U.S. Supreme Court cases involving wedding vendors who want to deny service to gay couples because the vendors oppose gay marriage as a matter of sincere religious belief. As Alan describes, Scott moves us beyond the seeming impasse of comparing the incommensurable values of non-complicity (the vendor’s interest) and non-discrimination (the customer’s interest), by recognizing an asymmetry between the two parties to the conflict: If the customer is made to defer to the vendor, they will have to take their “perceived immorality as a worthy goal comparable to [the customer’s] aim of avoiding discrimination. This acceptance is self-denigrating.” (16) By contrast, the reverse is not true—the customer’s insistence on service is not predicated on the belief that the vendor, or the vendor’s religion, is unworthy of respect. Because no one should have to accommodate another at the expense of their own denigration, Scott concludes that the customer should prevail. And I think he is entirely right here. He has uncovered the key to dispelling the apparent conflict. It is a significant achievement, for the way we conceptualize discrimination and for law and policy.

   I want to highlight what I think is a hard case for Scott, and then an easy case for him but one that I think his account gets wrong. I am eager to know how he would address the first case, and what he might say on behalf of his account for the second. I will also offer a few thoughts about Scott’s critique of my own account.

   — The hard case – denigration on both sides:

   Imagine that a lesbian baker is asked to make a generic cake for a Westboro Baptist Church (WBC) banquet, at which the WBC will be broadcasting some of its central tenets, including its hostility to gay people. Importantly, turning the WBC member away because one does not want to support the WBC is a form of religious discrimination, just as refusing to bake a cake for a Bar Mitzvah or a baptism would count as discrimination on the basis of religion. The connection between event-based discrimination and identity-based discrimination is also what justifies concluding that refusing to provide a cake for a same-sex wedding is sexual-orientation-based discrimination.

   On Scott’s account, if the baker were to refuse to provide the cake for the WBC banquet because she thinks the WBC is condemnable, she would be requiring the WBC customer to accede to their own denigration. On the other hand, if the baker is made to comply with the commission, she then becomes a party to her own denigration. After all, the cake is intended for an event meant to celebrate hate for who she is. This is a case where the asymmetry in the standard case, which Scott so valuably “unmasks,” no longer holds. Does his account nonetheless have the resources to resolve the conflict?

   — An easier case that I think Scott’s account gets wrong – refusing to countenance contempt of others

   We can vary the preceding case, in which a WBC member requests a cake for a WBC banquet. This time, the baker in question is a straight man who is committed to equal rights and respect for all people regardless of gender identity or sexual orientation. The WBC member has not singled out this baker because of this commitment; we may assume the customer is entirely ignorant of it, and has chosen this bakery only for its excellent cakes. As with the original variant, turning this customer away would constitute religious discrimination as a matter of law. It would also convey disdain for the customer on the basis of who they are—precisely the feature that renders refusal of service impermissible for Scott. But unlike the original case, the baker in this one will not be a party to their own denigration if they accept the commission. Nothing in the WBC’s inflammatory rhetoric impugns straight men. So the asymmetry at the core of Scott’s account arises here, with the result that the baker may not refuse the commission.

   That result makes me very uneasy. More than that, it prompts me to want to distinguish between cases where condemnation is warranted (and I take the WBC to be one of them; Alan’s example of the caterer refusing to host a banquet celebrating Russia’s victory in Ukraine would be another) and cases where it is not. But venturing those distinctions, Scott argues in his critique of my own account, is incompatible with liberal neutrality.

   — Allowing refusals of service only where the customer would use the requested product to promote subordination

   On a view of anti-discrimination laws that I find compelling, the purpose of these laws is to counter subordination. If that view is right, there is something awkward, and maybe even perverse, in applying an anti-discrimination law to protect a customer’s right to engage in subordination. The law would then be requiring the vendor to subvert its very purpose. Yet this is what Scott’s account would entail in the case of the WBC member’s commissioning a cake for the WBC banquet, from either a gay or straight baker. The WBC customer would gain the protection of anti-discrimination laws for the purpose of pursuing the very ends these laws are meant to counter.

   My account allows vendors to refuse commissions where their goods would be used to promote the subordination of historically oppressed groups. I see these refusals as continuous with, rather than as deviations from, anti-discrimination norms.

   Scott worries about arriving at a principled, neutral definition of subordination. I define subordination not according to the vendor’s subjective sense of what counts as oppression but instead by reference to the law’s definition of what counts as hate for purposes of hate crimes. I gloss this as conduct that would assert or perpetuate the inferiority of a protected class. Scott is right to point out that it will be no easy task to determine just which conduct counts. As I describe, though, the ultimate decision is not left to the vendor’s discretion (45). Our WBC member who was refused service could file a complaint against the baker for violating anti-discrimination laws; the baker could invoke hate-promotion as their defense. An adjudicatory body would then be charged with determining whether the WBC’s event was one that asserted or perpetuated the inferiority of a protected class. The same process would apply for the case of a baker who refused to provide a cake for the marriage of a middle-aged man to a girl below the age of sexual consent (at the time of my writing, legal in all but three states) or a fabric seller who refused to provide fabric for a burka—a case I do not resolve either way, but instead acknowledge to be “difficult” and in need of further exploration (46). But the difficulty is not unique to my proposal. Courts needing to determine whether a criminal offense counts as a hate crime face the same difficulties.

   There is of course something non-neutral if the state allows vendors to discriminate against churches that promote hate, as the WBC does, but not those that promote equal love for all people. But so too there is something non-neutral in having the state allow vendors to discriminate against, say, left-handed people but not Catholics. Non-subordination is a value that our constitutional culture sometimes privileges relative to neutrality. Why think that non-subordination may displace neutrality only when it comes to deciding whom anti-discrimination laws should protect but not when exemptions from these laws are warranted?

   Very much looking forward to the discussion!

5. Hi. Thanks Scott for a terrific paper, and Alan for a really thorough precis.

   I have a question about the conscientious objector. According to Alan’s retelling of Scott’s view: ‘Giving the conscientious objector an exemption might mean that somebody else must serve instead, and presumably that person is owed a justification. But that justification could appeal to the value of noncomplicity without masking any disdainful judgment concerning the replacement soldier.’

   The conscientious objector thinks the war involves immoral killing. They therefore appear to imply that the replacement soldier is complicit in immoral killings. Why is this not disdainful? In addition, the combat soldiers who rely on support are also potentially owed a justification. Perhaps the conscientious cook is a superior cook to the replacement. The combat soldiers now get sub-standard food. The reason is that the conscientious cook believes them to be immoral killers — mass murderers in essence. Why isn’t this disdainful?

6. Professor Altman,

   Thank you for a very interesting paper. I was hoping to invite you say more about (i) when a justification for refusing service is demeaning, (ii) about your rejection of the objective account of complicity.

   1. Demeaning Justifications

   Suppose a vendor candidly refuses services to a gay couple by telling them the following: “Personally I think your marriage sounds beautiful, and I wish I could celebrate it. However, I believe that God will subject me to eternal punishment in the afterlife if I bake a cake for a same-sex marriage.” Is this demeaning? At first glance, it doesn’t appear any more demeaning that a deluded vendor telling the customers that an invisible man in the corner is pointing the gun at the vendor and will pull the trigger if he agrees to serve the same-sex couple. [Many critics of religion would presumably say that the cases are identical]. This type of case appears important in that–at least it seems to me–many believers may not have any view about the wrongness of same-sex marriage independent of the fact that they are commanded by God not to celebrate it, or independent of the fact that God will punish them for celebrating it.

   2. The Objective Account and Government Neutrality

   I understood the paper to argue that the objective account of complicity–endorsing noncomplicity objections only if the vendor is complicit in something actually wrongful–is untenable in part because it would require the government to “resolve controversial issues.” This argument appears to assume that implementing the objective account requires the government to make case-by-case determinations as to when customers are requesting something wrongful. But another way of implementing the objective account is to simply not provide for any exemptions from discrimination laws at all, or else to provide only for categorical exemptions (e.g. an exemption that portrait artists are permitted to decline to paint customers for any reason). Do you agree that we can implement the objective account without resolving controversial moral issues? If yes, does this leave autonomy as the proper grounds for rejecting the subjective account?

7. Thank you, Amy, for your thoughtful and challenging questions. You ask about denigration on both sides, refusing and countenancing contempt, and then (drawing on the appeal of these examples), whether my critique of your work is persuasive. Let me say at the outset that I admire your work and could not have done my own without your help. Your examples nicely show why your account leads to appealing outcomes that I might need to reject.
   The Hard Case—Denigration on Both Sides.

   I am not sure I agree with you that this case constitutes religious discrimination. If the baker turns away all catering jobs from groups that preach hate, religious or secular, I suspect the religious discrimination claim would fail. But this does not address your core point. So, assuming that this is religious discrimination, or that the jurisdiction bans discrimination based on ideology, your question is whether there is now symmetry between vendor and customer, with each offering neutral justifications that mask disdain. If there is symmetry, can I resolve the problem?

   Although I acknowledge that this is an awful case, I do not think it involves symmetry or masked disdain on both sides. The church has contempt for the baker. But the church wants to avoid being discriminated against by all bakers, both those it holds in contempt and those it does not. So, the principle of non-discrimination to which it appeals is not intimately connected to its disdain for the baker in the same way that the baker’s interest in non-complicity is intimately connected to the WBC’s views.

   I admit that providing the cake does involve the baker in self-denigration. But the self-denigration does not arise from accepting the WBC’s claim that discrimination is wrong. It arises from assisting someone in denigrating you. Perhaps my principle could extend to cases like this. But I worry that it would then expand much too far. For example, many religious sects believe that I am destined to go to hell. Some express this idea during worship services. I would not favor rules that allowed discrimination against such churches.

   In the end, I do not think this specific case creates a problem for me because I do not think this counts as religious discrimination, and I can see arguments for allowing ideological discrimination by vendors. But if this does count as discrimination, I might compel the baker to deliver the cake. BTW, you did not say that the group targeted this baker because she is a lesbian. I would have a different view in that case.

   An Easy Case that I get Wrong—Refusing the Countenance Contempt of Others.

   You are right that I view this as an easy case, at least intellectually. Of course, like you, it makes me uncomfortable. I would not want to help the WBC in any way. The egalitarian baker must aid an organization whose projects he despises. But, of course, that is also what we require of the religious baker who must provide a cake to a same-sex wedding, an event that the religious baker believes violates holy law.

   Finally, Amy’s view is indeed appealing because it offers a solution that saves the Lesbian and egalitarian bakers from the fate to which I condemn them. I agree with Amy that her view could be implemented in a way consistent with liberal neutrality. But her suggestion that a fabric seller might refuse to sell black fabric to a buyer who would make a burka suggests there is danger. Amy sees this as a hard case. I see it as alarming that we might bless discrimination against people who wear burkas because the state has decided that burkas are oppressive. Admittedly, the state must make judgments about who to protect when it enacts discrimination laws. But those judgments become far more dangerous when they decide that it is fine to discriminate against some religions but not others.

   Apart from worries about liberalism, I also see several disadvantages to a proposal that allows discrimination against people who use goods to oppress. One is that the stance will exacerbate polarization and culture wars. It feeds distrust to permit discrimination by progressives but not by religious conservatives. Amy does not embrace that as a principle, but it might be the effect. Another is that I do not trust our government to decide which groups engage in oppression. I suspect that groups advocating for DEI or justice for Palestine would be likely targets. Finally, although I find anti-subordination theories of discrimination law appealing, I prefer an account of the discrimination/complicity issue that many theories of discrimination can embrace.

   Thank you, Amy, for pushing me on these topics.

8. Thanks Alan. You ask why all instances of non-complicity do not involve disdainful reasons and offer conscientious objection to war as an example. I briefly address this in my paper. Likely this will not be satisfactory. But here is what I say about a parallel example.

   “Moral opposition to someone’s actions typically does not involve reasons that hide disdain or require self-denigration to be accepted. For example, people might lobby for laws restricting meat production because raising and eating animals causes suffering and harms the environment. This law would disadvantage me as a meat eater. Although the reasons supporting the law implicitly condemn my meat eating as immoral, accepting them as legitimate is not self-denigrating. I can recognize harm to animals and the environment as legitimate concerns, even if I disagree that raising animals for meat is immoral. Those who seek to ban meat production do not invoke my immorality as a reason. The reason is to prevent harm. However, in the case of noncomplicity, the supposed immorality of the discrimination victim is the reason for the discrimination. Without that supposed immorality, there would be no need to avoid complicity.”

   I am interested to know if this is persuasive.

9. Thanks, Gabriel (please, call me Scott),

   I do think the religious baker is expressing disdain (albeit polite and conflicted) by committing to the judgment that helping the couple is sinful because, according to a view the baker embraces, the couple is sinful.

   I think there are examples of non-disdainful rejection based on something that resembles non-complicity. I did not include this idea in the article because I do not think it arises in real cases.

   The example I have in mind is someone who refuses to help someone who is working against the seller’s goals. The seller does not think the buyer is wrong to work against those goals. But the seller does not want to help anyone block his efforts. Imagine, for example, an employer who has struggled to evaluate the morality of abortion, but has concluded that abortion is murder. He knows that people of good faith hold the opposite view, for good reasons, and respects their conclusions. He donates half of the profits from his business to anti-abortion causes. Someone applies to work for him, explaining that she donates half her income to pro-choice charities. The employer says, “I admire your commitment and could imagine doing the same thing – the arguments seem compelling on both sides. But given my life commitments, I do not want indirectly to fund groups working against my goals. So I will not hire you.” I do not favor allowing the employer to make this choice. But I do not think his reasons express disdain.

   You also ask whether a state can reject all complicity-based exemptions from discrimination law. I agree with you that this would avoid the problem of governments evaluating the accuracy of complicity claims. This would remove the government from making value judgments about which anti-complicity claims are true. But if it never grants exemptions, it will deny valid claims (assuming, on an objective theory of non-complicity, that those claims deserve exemptions).

10. I wanted to elaborate on my Answer to Gabriel — I think I failed to answer his question about why a vendor who admires the same-sex couple’s union before declining to help them has expressed disdain. After all, the vendor was polite and offered no sign of disrespect.

    My account does not rely on the vendor’s personal disdain, or its expression. Rather, it focuses on whether the vendor’s reason is tightly connected to a judgment that the customer is sinful or immoral. No matter how kind and respectful the vendor is, their view that serving the same sex couple makes them complicit in sin depends directly on the judgment that the couple is sinful. Accepting that judgment as reasonable seems self-denigrating.

    My abortion example (or the animal rights example I mentioned to Patrick (who I accidentally called “Alan” — sorry Patrick) do not involve reasons that are so closely connected to someone’s sinfulness. If I do not want to hire you because you will spend money undermining a project I support, I need not declare you or your project immoral. I simply do not want my project to fail.

11. I think Scott’s essay and Alan’s response raise interesting and important questions. I want to set out an immediate and small response — a nibble at the question, not a bite.

    Important aspects of the harm in being turned away by a vendor — say the baker who won’t provide a cake for one’s same sex marriage — is in the discriminatory choice made by the baker, not in its material consequences. The lost opportunity to secure one of that particular baker’s cakes may be of trivial consequence. Being turned away may nonetheless matter a great deal. The harm is sometimes described as “dignitary”, and can consist of at least of at least two elements. There is the harm of feeling turned away, devalued, disdained because of something about oneself, one’s identity or commitments. Then there is the additional harm of being publicly turned away, devalued, disdained because of one’s identity or commitments.

    Dignitary harms may well be sensitive to the reason for the refusal a vendor has for turning the victim of those harms away. And the stronger the reasons for the refusal the deeper those harms may be. If the baker invokes the teaching of her god, and that happens to be the god of millions of persons world-wide, and the god’s teaching happens to brand same-sex marriage as a particularly evil thing, the magnitude of the dignitary harm may be especially high. The more intense the disdain, the greater the potential of the transaction to harm in this way.

    This line of thought aligns with Alan in raising the possibility that there may be less subtle or complex explanations for views that resist moral complicity claims for exemption. It provides a ready answer to question of why the reasons for discrimination should matter. It does not turn on the acceptability to the victim of the claim for an exemption, but rather the size and shape of the harm to the victim.

12. Hi Larry,
    I agree that dignitary harms are sensitive to the reason for exclusion. But I am less sure about your intuition that the primary connections concern the depth of feeling or the extent to which those feelings are widespread.

    You suggest that exclusions based on religious commandments might cause greater dignitary harm than those based on less urgently felt concerns. I am not so sure. Consider religions that demand strict gender segregation. Some explicitly say that women are (sometimes) unclean and that they must be avoided. Others offer less demeaning reasons, for example, that gender mixing leads to sexual temptation. Suppose a religious person refuses to allow women into his male-only restaurant because God commands it. I think this reason poses a smaller dignitary harm than if someone refuses to admit African Americans because they regard them as inferior for secular reasons. The religious source seems less important than the reason for exclusion.

    As to views that are widespread (or might become so if indulged), this seems important. But I think the importance lies more in the potential for subordination than the level of dignitary harm.

    Perhaps you had in mind that dignitary harms grow far worse when they are repeatedly inflicted. This seems right – though it also seems to blend a dignitary and subordination account of discrimination.

13. Scott Altman proposes an elegant solution to a difficult conflict between conscience and equality. Taking the wedding vendor cases as his main examples, he says they seem difficult because they pit two neutral interests against each other: the vendor’s interest in integrity—avoiding complicity with same-sex marriage—and the customer’s interest in equality—access to public accommodations without regard to LGBTQ status. Altman’s solution is based on a claim that the vendor’s bid to avoid complicity “masks disdain” for the immorality of same-sex marriage. Because the customers cannot be expected to accept disdain as a reason for the denial of service, ruling against them is unfair, unreasonable, or illegitimate. By contrast, the customers’ interest in equality can be accepted by the vendor and therefore ruling against the vendor is legitimate.

    In articulating this argument, Altman has succeeded in making a contribution that is both original and interesting. It is also timely, because the Supreme Court still has not yet resolved a wedding vendor case under the law of religious exemption. In this post, I raise a few questions about the argument. (I wrote this before reading the other posts, so I apologize for any repetition.)

    First, I wonder whether it is true that disdain is motivating all vendors, even in a masked way. Altman seems to say that disdain is inherent in their complicity claims, which involve judgments of immorality regarding same-sex marriage (17). A dictionary definition of disdain is “the feeling that someone or something is unworthy of one’s consideration or respect.” Yet Altman recognizes that many vendors do not seek to demean customers (15), nor do they “intend any disrespect” (16). Whatever the meaning of the term might be, certainly Jack Phillips (the baker in Masterpiece Cakeshop) emphasized that he was happy to serve gay and lesbian people by selling them other products, such as birthday cakes, shower cakes, cookies, and brownies. He only objected to facilitating a ceremony that he regarded as a sacrament. Isn’t it possible to imagine wedding vendors who recognize that there are several reasonable positions that one could take on same-sex marriage, so that disagreement need not necessarily amount to disdain? If so, then the problem of symmetry persists—integrity still faces off against equality.

    Second, even if disdain is motivating the vendor, should that matter? A more familiar constitutional model asks whether the person seeking an exemption from civil rights law is substantially burdened in their sincere religious beliefs or practices, and if so whether the government can show that its enforcement of that law is narrowly tailored to a compelling interest, say ensuring equal economic opportunity and combatting structural injustice toward members of subordinated groups. (Alternatively, the less protective Smith rule might apply, but that would not alter the point here.) On this account, the vendor’s invocation of a religious commitment is what triggers a presumption of protection, without more. And third parties who are affected by an exemption can accept the government’s rationale, which is grounded in its interest in protecting free exercise. Understanding that Altman is interested in reason-giving and legitimacy (8, 14) why aren’t the government’s reasons for granting a religious exemption sufficient to satisfy the requirement of fairness or legitimacy?

    Third, does the disdain analysis really not apply symmetrically? Vendors like Jack Phillips do argue that they feel discriminated against by public accommodations laws, which they believe take sides on contested questions of conscience. Altman acknowledges that “vendors can claim to suffer comparable and unavoidable dignitary harm, indeed harm resulting from discrimination” (24). What’s more, civil rights laws are often said to be animated by a pedagogical interest in condemning invidious discrimination and teaching the value of equality, in addition to interests in economic opportunity and equal citizenship standing. To be sure, these government objectives purport to be neutral—they serve the democratic value of ensuring free and equal citizenship for all members of the political community. But could vendors say they “mask”—or simply amount to—moral condemnation of illiberalism? And would that be a reason for vendors to reject civil rights enforcement as illegitimate and unfair, on Altman’s account?

    Fourth, does the argument prove too much? There are some exemptions that could be conceptualized as complicity accommodations that have withstood consideration and are widely accepted. For example, the ministerial exemption allows congregations to hire and fire clergy without regard to employment discrimination laws. Some of these cases do not seem to involve complicity—such as when the Roman Catholic church hires only men as priests. But others do seem to invite the argument from disdain. For instance, a congregation may fire a clergy member who divorces or who marries outside the faith in violation of religious doctrine. Whether or not such a congregation is worried about complicity, it views the behavior as immoral or heterodox. Yet the ministerial exception is commonly accepted, at least in core cases where employment would violate a congregation’s theology. Or consider the “Ms. Murphy’s” exemption. As Altman notes (23), it exempts small landlords from antidiscrimination law when they live in the building. Some of these landlords exclude same-sex couples in order to avoid complicity. Is that longstanding exception unjustified in those cases?

    I am grateful to Scott Altman for writing this intriguing piece, and to the organizers for inviting me to respond.

14. Thanks to Scott for this incredibly rich and interesting paper, and thanks to Pea Soup for the opportunity to participate in this discussion. My comments focus on Scott’s precise understanding of disdain and humiliation. I worry that Scott’s disdain-based route for dealing with cases involving vendors who rely on complicity-claims to refuse customers does not obviously reach the outcome Scott desires in these cases. Further, I think we additionally have good reasons to reject the concepts of disdain and humiliation as they are presented here.

    For Scott, the resolution of these conflicts involving complicity-claims “must be justified in terms the disadvantaged party can accept” (8). A claim to live with integrity serves as a legitimate and neutral justification for discrimination (16). However, such a claim masks disdain where it is grounded in values which include regarding others – or even merely behavior that others deeply value – as immoral. Specifically, he writes that “[j]ustifying discrimination as necessary for vendors to live according to their values relies on customers not noticing that those values include regarding them (or behavior they value deeply) as immoral” (16). Humiliation is related to distain. Customers who take disdain, so understood, from vendors as “a reason and, therefore as reasonable” in the context of service-refusals self-denigrate and humiliate themselves (16). This is because “[s]uch blindness to unmistakable insults is humiliating” (16). Moreover, since “[r]easons that demand humiliation and self-denigration do not treat others as respectfully,” (16) they are unacceptable to the disadvantaged party, i.e. the customers (if we accept the vendor’s complicity claim). Thus, the complicity-claims from vendors in this context must be rejected.

    By my understanding, then, on this view I express disdain for you wherever I regard you, or behavior that’s important to you, as immoral. And you are humiliated or denigrated whenever you accept as reasonable your suffering of harms (setbacks? costs?) justified by my view that something significant you’re doing in your life is immoral. Assuming this reconstruction of disdain and humiliation is correct, I worry that this account makes it far too easy to both disdain others and be humiliated. This generates some particular worries for the view and some more general concerns.

    Beginning with the more particular concerns, I worry that Scott does not escape what he calls the symmetry problem that he believes vexes harm minimization theories. Suppose we deny religious exemptions in the vendor case. On Scott’s view, vendors are harmed by having their complicity-claims denied and, correspondingly, by having their capacity to live with integrity impeded to some degree. Vendors are, in this case, the disadvantaged party. Scott claims that LGBTQ couples do not express disdain, as he understands it, for actors invoking complicity-claims (e.g., 32). But I’m not so sure. Isn’t the equality claim grounded in values that assert the particular vendor also acts immorally in countless ways? The vendor immorally condemns their marriage, the vendor immorally condemns LGBTQ relationships, the vendor immorally denies them service – to name a few. Why, then, isn’t it humiliating (on Scott’s view) for the vendor to see the harm imposed upon her as reasonable? Shouldn’t the vendor find these terms unacceptable? For Scott, it is clear that the neutral justification of integrity masks disdain – the thought that that the customers act immorally. Why doesn’t the neutral justification of equality also mask distain – the thought that the vendors act immorally?

    Note, too, that one justification Scott proposes for denying exemptions is a concern that vendor complicity-claims are insincere, at least sometimes (20). So, the justification for the harm of applying the anti-discrimination law is that vendors (immorally, I should add) lie, or at least because we think people relevantly like them tend to do so. This seems to aggravate the mirror humiliation worry, and it risks undercutting the idea that the justification for denying exemptions is being offered “in terms the disadvantaged party can accept” (8).

    A second worry for the view concerns Scott’s reliance on existing antidiscrimination law as a limit on the disdain-masking reason principle. Scott discusses how antidiscrimination law traditionally only protects certain groups or features (e.g., 17) and, similarly, that “when neutral principles mask distain for an appropriately unprotected group,” expecting acceptance of the principle might nonetheless be reasonable. I agree, as a descriptive matter, that discrimination laws draw these distinctions. I’m curious to hear more about why this should matter from a normative standpoint. Do butchers and vegans have less of an interest in avoiding humiliation, as Scott defines it? Should only those who are historically disadvantaged have a relevant (or maybe legally cognizable?) interest in protection from humiliation? Again, if so, I’d like to know why. Without more, the reliance on this limit seems unsustainable.

    Moving onto general concerns, I think I worry about the general reach of the disdain-masking reason principle. First, I am more worried than Scott that this framework has the power to powerfully undercut claims related to integrity. Scott writes that integrity-protecting claims “rarely” involve both “a demeaning request” on the object of distain and “available alternatives” (19). I am not so sure. As I’ll get to in a moment, such possibilities seem to routinely appear in the context of free speech. But I also worry that Scott provides his own examples when critiquing harm minimization theories. There, Scott notes that “[b]urdening someone to protect another’s integrity typically does not violate freedom of conscience” (26). So, one can suffer harms by being awakened by zoning laws which allow for early morning services or by being required to work an extra Saturday to cover for someone observing the Sabbath (26). Assuming I’m an Atheist, should I be humiliated here? Surely, I recognize that others think it immoral that I am not in church bright and early, and I have to accept that my sleep, peace, or the like is reasonably disturbed by this judgement. Similarly, I have to think it reasonable that my work schedule is more demanding, or less within my control, because another holds the view that it is immoral for me to work on Saturday.

    Second, I’m unclear how the disdain-masking reason principle interacts with principles pertaining to free speech. Scott seems to acknowledge that his principle is ill-suited in many contexts involving free speech. He writes “[w]e allow discrimination and expressions of disdain (even against groups protected in other areas) in settings such as dating, friendships, private associations, free speech” (18). Yet, I’d like to hear more. For starters, free speech seems less like a distinct “setting” than these others. Indeed, free speech claims are sometimes hard to cabin to a narrow setting and, more importantly for our purposes, they now frequently appear within the contexts of vendors refusing service. If distain, as Scott defines it, is at the heart of the matter, should free speech claims prevail in this context even where complicity-claims fail?

    Further, the commitment to free speech seems to require us to accept that it is reasonable for us to bear sometimes very significant harms or costs merely because someone thinks we’re doing something immoral. This often does not seem humiliating. Take the case of Pro-palestinian protests on campus which ask university leaders to divest from Israel. We might think protestors demand space for their expression whereas university leaders would rather not provide that space. Protestors rely on a neutral principle (something like free speech) which plausibly masks distain (the view that university leaders are acting immorally by not divesting). Do university leaders humiliate themselves by embracing the neutral principle?

    Although the free speech point is a bit of a digression, it helps me to sum up my overarching concern. I don’t quite agree that disdain and humiliation operate the way Scott suggests. I doubt my view that you’re acting immorally – even when vocalized and acted on, and even when pertaining to a significant dimension in your life – rises to disdain even in most instances. I also don’t think I’m humiliated every time I decide it is reasonable to suffer some harm because someone else thinks I’m doing something immoral. Further, I’m more sympathetic to Alan’s “simpler solution,” so I don’t think we need to embrace disdain and humiliation as Scott understands them to reach the outcome Scott wants to reach with the vendors in these contexts. Finally, if we do embrace disdain and humiliation as defined here, consequences arise elsewhere.

15. Hi Scott—
    Thanks for providing so fruitful a paperl
    Disdain as cause of harm is not binary, I assume, but a matter of degree. And it seems as though one element of the degree of a dignitary harm is the degree of the disdain. Religion is one source of fairly high or intense disdain. Religious claims often purport to come from what the claimant takes to be the highest source of normative guidance, and they supply a ready source of somewhat arbitrary beliefs that something is evil. So they frequently carry a high or intense charge of disdain. I am not at all inclined to think that religion is special. I only meant to note that the weighty or more intense the disdain, the greater dignitary harm it threatens. This is entirely sympathetic with your argument in making disdain pivotal. I only meant to point out that a fairly straight-forward claim about harm could offer an explanation for the role of disdain.
    My thought about numbers of believers goes something like this. The disdaining vendor is saying: “I don’t just think you’re behaving badly; I think you are evil. I don’t just think you are evil; my belief comes from the highest moral authority. I don’t stand alone in my judgments of you; they are shared by millions of people worldwide-wide. “ My thought was that each element of this could deepen the content of the disdain and the extent of the dignitary harm.
    Less me hasten to add, however, that I agree that the subordination of vulnerable groups lies at the heart of a persuasive account unacceptable discrimination.

16. Thank you, Nelson. I fear I will not adequately answer your many good questions and challenges. I will try to take them in turn.

    1. You first note that religious vendors are not necessarily disdainful if we understand disdain to describe their motives. Several other people have offered similar observations. This is undoubtedly a natural reading of my claim, and I can only express regret at having used the phrase “disdain masking reasons” (in my title, no less). It is, of course, too late to fix my article. But I would be happy to adopt a better phrase if folks have suggestions.

    The idea I had hoped to convey (which, clearly, I failed to do adequately) was something like this: non-complicity involves a desire to avoid certain connections with another person’s wrongdoing or sin. When my alleged wrong or sin is tightly connected to my identity, your desire to avoid connection with that sin is disdainful, even if you are polite and happy to associate with me in other ways and wish me no harm. Embracing your non-complicity as a reason to accept a setback requires accepting your view that I am sinful as reasonable. This is self-denigrating. None of this requires that the vendor be motivated by a desire to denigrate me or a yearning to express disdain.

    2. You ask why we cannot avoid these questions of disdain by looking at neutral government justifications for regulation. If the government exempts religious vendors from a discrimination law, it can cite free exercise as a non-disdainful justification; if it does not create exemptions, it can cite non-discrimination as a neutral justification.

    Unlike several participants in this discussion, I am not a scholar of constitutional law. So, I hesitate to say much here. But I think this suggestion merely replicates my problem at a higher level. If the government justifies non-complicity exemptions on free exercise grounds, this offers the same kind of neutral justification as the vendor’s non-complicity justification. Beneath both interests is a desire to avoid contact with the customer’s supposed sin. Although this is not a great analogy, I think calling the non-complicity exemption an example of free exercise should be no more acceptable to a gay patron than calling exclusion based on race “associational freedom” is to a black patron. The underlying desire for associational freedom derives from a belief that the excluded person is racially inferior, just as the desire for non-complicity derives from the belief that the customer is a sinner.

    3. I do not think there is symmetry of disdain here. Victims of discrimination do not want protection for reasons related to the discriminator’s religious beliefs, or because they think those beliefs are immoral to hold. They want protection so they can live as equals in public.
    You raise a parallel question about whether civil rights laws are disdainful of religious beliefs in a way that should make them unacceptable to religious people on my account. I do not think they need to be. Laws can forbid discrimination without expressing disdain for the religious views that lead people to discriminate. But I acknowledge that some lawmakers go much further and condemn the views of religious people. The Supreme Court has recently taken note of such expressions when striking down laws as violations of the Free Exercise Clause.

    Finally, I acknowledge that we sometimes should protect people, even if their claims include disdain for those disadvantaged by legal rules. This is not the most persuasive part of my article (assuming any part is persuasive). But I think we should treat discriminators differently (sometimes) if they have no alternative way to live with integrity. Priests might be one example. To me, a key feature of vendor discrimination is that they offer disdainful reasons and can live with integrity by changing jobs.

17. Hi Scott

    Thanks for your reply. I was thinking about conscientious objection in particular, because many conscientious objectors clearly believe that those fight/participate in wars are very serious wrongdoers. So… here’s the nub….

    ‘Those who seek to ban meat production do not invoke my immorality as a reason.’ The thought here I take it is that there is an important difference between refusals based on participation in wrongdoing and refusals based on some lofty goal and where the wrongdoing is related to that goal.

    In your case example, the primary goal is to protect animals, and my meat-eating is (seen as) immoral for the same reason as the ban is sought, but my immorality is not the reason the ban is sought.

    I’m not sure I’m convinced, for three reasons. First, just because preventing my immorality isn’t the goal, it still seems centrally connected to the ban. And I’m not sure why I should care whether it’s what drives the ban or not. The proposed ban still suggests Im still being called a murderer. The war case seems even more stark. My refusal to fight/be involved because I believe this is immoral slaughter of innocent people seems to suggest you are involved in that.

    Second, in the war case, if I know I will be replaced, I can’t say that protecting innocent human life is my goal. My goal is not be involved / complicit in wrongful killing. The immorality is central to my reason for refusal.

    Third, won’t some refusals of the type you want to rule out have this flavour of wanting to achieve some independent goal? ‘I just want to protect the traditional understanding of marriage. Your wrongdoing is not central to my refusal. My goal is to protect my own marriage etc [like protecting animals]. Your wrongdoing is related to that goal [like the wrong of eating meat].

18. Thank you, Jocelyn,

    Your comments, like many others, raise deep and complex issues that I fear I can only begin to address.
    You start with a challenge to my asymmetry claim, wondering whether non-discrimination rules express disdain for religious people by condemning as immoral many of their acts. You include among these the vendor’s denial of service to same-sex couples. Later in your comment, you also wonder about my church examples: perhaps I should not accept the disturbance of church bells as an atheist, because the people going to church might think I am sinful for not believing in God.

    I have connected these two questions because I think they attribute to me a view I do not hold (and I think I do not need to accept). I think we should reject disdainful reasons, not reasons given by people who disdain us. The church is not ringing bells because it thinks I am sinful (even as you say, it hopes the bells might rouse me from my illicit sleep). It is ringing bells AND it thinks I am sinful. We should reject neutral reasons offered by people who have disdain for us, as long as those reasons do not depend on that disdain. This was the main point of the animal rights example I noted in response to Patrick. Similarly, civil rights laws do not prohibit discrimination because they think people who discriminate are evil. They prohibit discrimination because it unjustly harms victims.

    You raise a second worry about my reliance on antidiscrimination law and wonder why unprotected groups, such as carnivores, must suffer the humiliation of embracing reasons that express disdain. I gesture briefly at an answer in my article (top of page 18). But to be honest, I see this as a gap in my argument that requires better development. I talk about oppression and the importance of certain traits to identity to suggest that some forms of disdain are more humiliating than others. But this is little more than a gesture. I am happy for suggestions on improving this idea.

    Finally, you ask about the connection to free speech. My original article had a long section on that topic (which I have since published as a separate article. I can send you a link.) The question is challenging because, of course, free speech can express disdain for people’s identities, including those connected to historical oppression. If my claim applies with full force to free speech, it could have radical and unacceptable consequences.
    My spinoff article emphasizes the available alternative question. Vendors almost always have ways to live with integrity without discriminating. Speakers also have an integrity interest in expressing views, including disdainful views. If disdainful speech were unlawful, they would have no alternative way to live with integrity. For this, and many other reasons, we confine the scope of equality norms so that there are realms in which we cannot expect to be protected from disdainful expression. In these realms, we can expect to exercise vital freedoms that cannot be exercised without showing other people disrespect.

    I know you made several other excellent points, which I would like to discuss. But I fear my answers are already far too long.

19. Thank you, Patrick, for clarifying and pressing me to give a better answer.

    Let’s stick with the war case—perhaps my animal rights example wasn’t helpful. Assume I am a pacifist and refuse to participate in any war (just or unjust) in any capacity (fighting or support) because I believe all intentional killing is immoral. If I am exempted, Bob will be forced to serve in my place.

    Let’s also assume that my main goal is avoiding complicity. But I also hope to inspire others to follow my lead, and I believe that anyone who participates in the war is acting immorally.

    You suggest that (on my theory) Bob should reject my desire for non-complicity as a reason to serve in my place because my reason is disdainful. It purports to rely on non-complicity. But the alleged evil with which I want not to be complicit is Bob’s behavior.

    This is a stronger claim than I initially thought. Still, I do not think I agree. The evil I want to avoid being complicit in is fighting a war, an action for which Bob has nearly no responsibility. If there is someone to blame for this evil, it is the country’s leaders or the leaders of the country that started the war. I want to avoid complicity with their wrongdoing.

    Admittedly, I think that Bob is a wrongdoer. He is either wrongly complicit in the war or a direct wrongdoer if he kills people. And I might think he is a wrongdoer for his failure to refuse service. But my desire not to participate in the war is not a desire to avoid participating in Bob’s wrongdoing. Indeed, I would want to avoid serving even if Bob did not exist, and my refusal would mean no one else would serve.

    I think this differentiates refusing to bake a cake for a same sex couple from refusing to serve in war. In both cases, as you rightly say, I might believe that the person disadvantaged by my choice is immoral. But in the wedding cake case, their immorality is at the core of my refusal to serve. That is not true in the military case.

    Finally, (although I might have said this too many times today), the fact that I think Bob is immoral is not the same as his alleged immorality being central to my reason for disadvantaging him.

20. Thanks, Larry, for your second post (which I almost missed in the flurry of other comments – sorry).

    I agree with your thoughts now that I understand them better. Thank you for clarifying.

    I am not sure if you had a chance to look at my reply to Alan. It is tough to keep up with all the discussion. But if you did, I am curious what you think of the following. Alan thinks (as you do) that the severe and unavoidable dignitary harm to customers offers a more straightforward solution to this puzzle than my account.

    Although I agree with both of you that this unavoidable dignitary harm must be taken seriously, I think there is a parallel harm imposed on religious people by telling them that people with their views cannot live according to their values in a public marketplace, while people with secular views largely can. Do you deny the existence of this opposing dignitary harm? Or perhaps you think it exists but is less severe?

21. Scott Altman argues that exemptions from antidiscrimination laws should be denied when they are sought by those who seek to avoid complicity in another’s immorality. This would categorically bar the now-familiar claims of wedding vendors, such as bakers or photographers, who object to facilitating same-sex weddings. He thus disagrees with writers such as myself who have argued (see my Gay Rights vs. Religious Liberty? The Unnecessary Conflict, Oxford University Press, 2020) that such claims ought to be legislatively accommodated if that can be accomplished without personally turning away those who seek services for such weddings.
    Granting such exemptions, he argues, implicitly accepts and endorses the view that the customer’s immorality makes them unfit for commercial interaction. Laws should rest on bases that everyone can accept, and that is not a justification that all citizens could accept. “Reasons that demand humiliation and self-denigration do not treat others respectfully.” (16) The vendor’s request for exemption “relies on neutral language that masks contempt, requiring the customer to participate in self-denigration by embracing the vendor’s disdain as reasonable.” (16)
    Altman is right that the claims of these wedding vendors are predicated on an objectionable kind of disdain for one’s fellow citizens. But in a diverse society such disdain is common. Normally citizens cope with that by declining to associate with one another. Antidiscrimination law is an exception to that right of nonassociation. The law also sometimes has exceptions to that exception, as part of the general structure of liberal accommodation for diversity. The exceptions can be invoked even when their motives are invidious.
    More generally, lots of familiar laws allow us to injure others for disdainful reasons. Suppose I bake the prettiest cakes in town, but I won’t sell them to Herman because I hate him and believe that he is accursed before God, a being of an inferior order, loathsome and foul. My objection is weird and idiosyncratic. There’s no law on the books anywhere, so far as I know, that bars such discrimination. Generally, discrimination needs to be common before the legislature acts against it. (See my Justice for Large Earlobes! A comment on Richard Arneson’s ‘What is Wrongful Discrimination?’, 43 San Diego L. Rev. 809 (2006).) Suppose that Herman would like very much to buy one of my cakes, so my denial injures him. My preference not to sell to him is mild: if the law forced me I would grudgingly comply and would stop thinking about it 20 minutes later. Any balance of burdens would thus force me to make the sale. But I get to turn him away: the background law of property masks my disdain. Like other individual rights, this one can be deployed in morally repellent ways, because the rights holder has no obligation to explain to anyone his reasons for exercising his right as he does.
    Does Altman propose to modify all these background rules? Another background rule is the limited reach of antidiscrimination statutes. He writes on this blog: “unprotected traits can legitimately be grounds for exclusion, even when disdain is expressed.” So Herman is out of luck. But why should his moral rights depend on the accident of which traits happen to be protected by positive law?
    Altman acknowledges that some integrity-based exemptions are “part of a web of fair compromises that adjust the burdens of social life.” (8) He also concedes: “Many antidiscrimination laws include exceptions when a few discriminators are considered to have strong interests and exempting them would not impede the law’s primary goals.” (23) He acknowledges, for instance, the 1968 Fair Housing Act’s exemption excusing dwellings with four or fewer units if the owner lives in one of the units. Vice President Hubert Humphrey explained why the exemption was there: “The relationships involved in such situations are clearly and unmistakably of a much closer and more personal nature than in the case of major commercial establishments.”
    In those housing cases the discrimination in question was frankly racist. Its motives were far worse than those in the modern wedding cases. That doesn’t mean it was wrong to accommodate such personal concerns. The statute did not accept the disdain in question as reasonable. Those turned away because of the exception were not asked to accept the landlords’ racism as reasonable. The statute created (or, more accurately, preserved) a right to be unreasonable. Was it wrong to do so? People ought to have safe space for even their morally repellent concerns.
    More generally, all laws, including antidiscrimination laws, have boundaries. Frederick Schauer showed long ago that there’s no analytic difference between rules and exceptions. (Exceptions, 58 U. Chi. L. Rev. 871 (1991)). The wedding vendors’ claim is a proposal to adjust the boundaries.
    This of course does not settle the question of whether any particular proposed accommodation would thwart the law’s goals or impose unacceptable costs on the people who are discriminated against – whether it is an appropriate way to meet the urgent needs implicated on both sides of this cultural conflict. But that is the question we should be asking.
    Altman’s essay is smart and tightly reasoned, but it shows the limitations of attempts to adjudicate this question with the tools of armchair philosophy. Lawyers are trained to think about conflict resolution by devising abstract principles that should cover all future cases, and which incidentally entail that their side wins. But this is not the only way to think about conflict. Sometimes, the right thing to do is not to follow a principle, but to accurately discern the interests at stake and cobble together an approach that gives some weight to each of those interests. Ethics is not only about principles. There is a tradition in moral philosophy, going back to Aristotle, that holds that a good person does not necessarily rely on any abstract ideal, but rather makes sound judgments about the right thing to do in particular situations. Sometimes principles are overbroad generalizations from experience, and distract us from the moral imperatives of the situation at hand.

22. The discussion so far has raised so many interesting and generative points!

    (Scott, the distinction you identify between the lesbian baker and the WBC church member strikes me as right, and I see now that it dispels the worry I had. Thank you!)

    I want to return to the case of the conscientious objector to war. I find Scott’s responses convincing. But the discussion has prompted me to think about what else might be said, including what Scott might say but hasn’t already said.

    The disagreement between Scott and Patrick (and maybe also Alan on this score) seems to turn on the way one understands what the objector’s reasons are.

    I take it that the objector Patrick imagines is one who wants an exemption not because of a generic pacifistic commitment but instead because he wants nothing to do with “mass murderers.” It seems implausible though that most conscientious objectors (COs) seek to avoid service because of the supposed bloodthirst of the people they would be fighting alongside (most of whom, as the CO should realize, are serving only because of conscription anyway).

    It is also worth noting that, when thinking about exemptions generally, many individuals seek them to uphold commitments that they do not take to be universally morally binding. Observant Jews, for example, will not wear garments made from a combination of linen and wool but there is no associated belief that wearing this mixture of fabrics is morally wrong. Some Jewish texts understand the prohibition on eating pig in the same way—as an instance of malum prohibitum. I don’t know if there is a coherent (or an actual) understanding of pacifism according to which one might view it as required only because mandated by the “highest normative authority” (to borrow Larry’s nice term) and not because war is wrong. But if there were such an understanding, the bid for an exemption of someone bound by it would not imply a negative judgment about those who fight. At any rate, Scott allows that some bids for non-complicity arise out of a concern for (non-moral) integrity. Where non-moral integrity drives the commitment, it may be pursued with no accompanying moral condemnation for others who don’t share the commitment.

    There is a second and, I think, important way in which the CO case seems different from Scott’s central case, of the baker who would deny service to the gay couple. Causation works differently in the two: The baker’s exemption consists in the couple’s being turned away. By contrast, the conscientious objector’s exemption does not depend on anyone else’s being conscripted in their place. The government could decide to fight with one fewer person. In this way, the CO does not cause anyone else to bear the burden that would have been theirs. As such, it may not fall to the CO to have to justify his exemption to anyone.

23. Scott,

    If you’ll allow me another comment on disdain: You helpfully explained above that a vendor acts disdainfully when they seek to avoid connecting their services to a customer’s “wrongdoing or sin” which is in turn connected to the customer’s identity. Accordingly, a vendor may act disdainfully when discriminating even if the vendor bears no ill will towards customers, or even wishes the customers the best (e.g. the vendor who reluctantly discriminates because they believe God condemns gay weddings, even though they can’t understand why God would feel this way about them).

    A concern I have about this is that it makes the viability of a noncomplicity claims depend on the particulars of a vendor’s faith in (I think) odd ways. Contrast the following cases:

    Case 1: Vendor’s religion asserts that all same-sex relationships are abominations and condemns any involvement in celebrations of same-sex marriages.

    Case 2: Vendor’s faith tradition prohibits entering into same-sex relationships, but holds that persons of other faiths are permitted to enter into same-sex relationships. However, the tradition forbids members of the faith to aid in celebrating same-sex weddings out of a fear that doing so would normalize these relationships for people in the faith. [See Amy’s comment above on non-universal religious beliefs].

    Case 3: Vendor belongs to a charismatic faith group led by the Prophet–a man who receives frequent revelations taken by the group as binding. Recently the Prophet declared that members of the faith must abstain from celebrating same-sex relationships or contributing to celebrations of same-sex relationships; the Prophet explained that the decree is a simple test of faith not connected to any divine condemnation of same-sex relationships per se.

    I take it that under the proposed conception of disdain, Vendor would lack a noncomplicity claim in Case 1, since acceptance of this claim on the part of a same-sex couple would be demeaning. However, Vendor might possess a noncomplicity claim in Cases 2 and 3, where Vendor does not appear to believe that a same-sex couple seeking Vendor’s services are sinful or acting wrongly. [Is this right?].

    I find it somewhat troubling that verdicts about noncomplicity would depend on the theological content of vendors’ faith traditions in this way. In addition, implementing this noncomplicity framework might require the state to determine of a religious tradition views a set of customers as wrong/sinful or not [is the tradition more like Case 1 or Case 3?]; I don’t feel especially comfortable with the state deciding religious doctrine.

24. Hi Scott,

    Thanks for your response! It’s helpful. I know my original post was long so I just want to try the symmetry objection one more time – briefly – and only in the context of the vendors/customers. This will help me avoid (I hope!) the “disdainful reasons” rather than reasons from persons who “disdain us” distinction.

    Customers want to apply the general principle (anti-discrimination) to the particular vendors in front of them irrespective of the vendor’s self-identification as religious because customers take the vendor to act immorally against them (through declining them service, condemning their relationship, etc). This is symmetrical because the vendors also want to apply the general principle (integrity) to the particular customers in front of them irrespective of their self-identification because vendors take customers to act immorally against them (by involving them in religiously violative conduct). In each case, particular parties justify the application of the principle by appeal to their judgement of the immoral acts of the other and to prevent themselves from being touched by this immorality. Moreover, each must accept the other’s “disdainful” reason to assent to the principle. So, customers have to, as you say, take as reasonable the vendor’s judgement of their conduct and views as immoral. Similarly, the vendor must take as reasonable the customer’s judgement that her conduct and views are immoral.

    Maybe my skepticism is coming from a place of seeing anti-discrimination principles (and law) as deeply embedded in moral claims/commitments (not unlike integrity claims)?

    Thanks again! (And I would absolutely love the free speech paper if there were time to send!!)

25. Thanks, Scott. You have a lot going on here, so thank you for engaging. Don’t feel compelled to respond, but here are some further thoughts on your responses.

    1. This goes to the core of your argument, so it’s worth pursuing. Of course I read and understand your main point about disdain, which you repeat above. But it still leaves me with a question about your conception of reasonable disagreement. Why exactly is it unreasonable for the customer to accept the fact of disagreement on a moral question? That the moral question involves the customer’s own conduct seems to me inessential. A thinking person in a diverse society might well be able to appreciate moral differences, even about their own conduct, quite plausibly.

    2. With regard to the government’s interest, you say that it is no different from the vendor’s interest for your purposes, because “ Beneath both interests is a desire to avoid contact with the customer’s supposed sin.” But surely that’s not the case. The government has no interest in avoiding contact with the customer’s sin, or even in allowing the vendor to avoid contact. Rather, the government recognizes the value of freedom of conscience, whatever the content of the beliefs. You compare cases of racial discrimination. But we do actually protect the ability of individuals to intimately associate on any ground, even race. If you were right about that analogy, then those bedrock protections would be questioned. The reason constitutional law doesn’t allow businesses to refuse service on the ground of race is because of the government’s strong interest in combatting structural injustice, not because of a concern about disdain.

    Maybe I’ll leave it there—thank you again for generously engaging!

    Nelson

26. Thank you, Andrew, for your comments. I suspect we disagree less about matters of policy and method than you think. Still, you offer a powerful challenge to my view.

    Let me begin by agreeing that anti-discrimination laws should have boundaries, in part for the reason you say: people need space to act unreasonably and sometimes to act on morally repellent reasons. As Jocelyn noted yesterday, free speech is one example. You give another by noting the limits of anti-discrimination law. Can my account allow for these limits?

    For example, many states allow businesses to discriminate (except based on race) against customers for any reason. Other than restaurants, hotels, and a few other businesses regulated by federal law, these businesses (including bakeries, photographers, and web designers) can exclude customers based on religion, national origin, sexual orientation, or political views. If we embrace an anti-subordination account of discrimination law’s purpose, perhaps these laws make sense. It is far more urgent to prevent discrimination in housing and employment than in the sale of most goods and services, including those connected to weddings.

    I do not think that is an ideal arrangement. But I can imagine an argument in its favor that does not conflict with the claims in my article. For example, I (and some other participants in this discussion) take seriously the dignitary harm of exclusion (even exclusion by public notice, rather than face-to-face rejection). One might disagree, noting that we all tolerate a variety of indignities and insults in our lives and that material deprivation matters far more than symbolic insult. Based on this view, we might abolish laws banning discrimination against customers by sellers of non-essential goods and services. If we made that choice (and it was a morally acceptable choice), then I would think it appropriate to ask customers to accept vendors’ disdainful reasons, whether based on non-complicity or personal hatred.

    My argument was not that we should always forbid discrimination, even by people seeking to avoid complicity. Instead, my argument was that if we decide discrimination is wrong and appropriately forbidden in a particular realm, then we should not allow non-complicity concerns to override that choice. If bakers should not be allowed to discriminate, and sexual orientation is an appropriately protected characteristic, then complicity is not a reason that customers should accept for allowing some bakers to discriminate against them.

    You are right to press me on the housing analogy. As you mention, the Fair Housing Act permits discrimination in small owner-occupied apartment buildings. This rule has always seemed unjust to me. It was likely enacted because the FHA could not garner enough votes without this compromise. Some state housing laws (including where I live in California) forbid such discrimination, limiting exemptions to people who rent rooms in their homes. I suspect those who favor the federal approach think that one’s home is a space where people ought to have the right to act unreasonably, even on disdainful or hateful views, and that an owner-occupied small building more closely resembles a home than a business, where people should have to restrain their unreasonable impulses. Exempting such places from non-discrimination law might resemble exempting friendship and dating relationships from non-discrimination laws.

    I admit that this is just a gesture. If my argument is correct, it should have something to say about the permissible scope of housing discrimination law. I am clearly not there yet.

27. Thank you, Gabriel, for these excellent hypotheticals and for your question.

    Example 2 is (by design, I assume) a borderline case, which I am unsure how to resolve. But your worry focuses primarily on the gap between examples 1 and 3. For several reasons, this gap does not seem problematic to me.

    I do not think example 3 is really a non-complicity claim. The vendor does not want to discriminate because he (or anyone he regards as an authority) thinks same-sex marriage is wrong. So, being complicit in wrongdoing is not the nature of his claim of conscience. On my account, this is the feature of non-complicity that makes its reasons disdainful.

    Still, vendor 3 is claiming a right to be exempt from a non-discrimination law based on conscience, much like a fundamentalist might demand access to gender-segregated public spaces for religious reasons.

    I am unsure if you see vendor 3 as problematic because you find my distinction arbitrary – allowing the validity of a conscience claim to turn on details about that claim’s content, or only because you think the state should not inquire into such details. I have tried to address the first worry. Regarding the second, I do not think the legal system should inquire into vendor motives at this level of detail. As we all know, the law is a blunt instrument for doing justice. Your excellent hypotheticals are excellent in part because they are so innovative. They do not resemble most (perhaps any) real discriminators. There is no reason our law must seek to identify people who are rare or non-existent.

    There is a final question about vendor 3 that you do not mention, but that I want to note. My argument does not show that discrimination by vendor 3 is permissible. I argued for an asymmetry between discriminating vendors and customers: most vendors offer disdainful reasons for legal protection. Vendor 3 illustrates symmetry. Both sides now offer respectful reasons for protection. I am unsure what the law can do in cases like this (assuming they are common enough for the law to recognize). Balancing of interests seems to me the best option. We could compare the inconvenience of seeking other vendors and seeking other business models. Or we could compare the dignitary harm of being excluded as a buyer with that of being excluded as a seller. Or we could consider broader social goals (as Andrew suggests) that might be advanced by either outcome. My main point is that finding a non-disdainful reason for discrimination puts us into the difficult position of comparing comparable, varied, and sometimes incommensurable harms. It does not automatically require an exemption.

28. Scoot, as I have said to you privately, yours is a really informative paper; clearly written; which significantly contributes something new to an already crowded field. While I very much commend the framing of the paper in a liberal neutral framework, like others, I think your argument which relies on masked disdain has a further limitation than the ones you already acknowledge: those that rely on laws protecting people from sexual orientation discrimination may rely on these laws with an explicit motivation of disdain of Christian vendors. If this is so, then it would not be reasonable, on your account, to ask the vendors to accept the enforcement of these laws because they are based on an insulting view of their Christianity. That this can in fact be the case is exemplified twice by the Jack Phillips case: First, (at least on the Supreme Court’s reading), some of the Colorado Commissioners who supported the same-sex couple explicitly condemned the baker’s version of Christianity; second, a transgender woman ordered a cake from Phillips to celebrate her gender transition. Lawyers for Phillips reasonably claim that this was part of a concerted campaign of harassment of the baker due to his anti-LGBT Christian beliefs.

    Just like the Supreme Court accepted in Masterpiece that the Colorado Commission unconstitutionally acted out of animus for Phillips’s beliefs, I think your argument commits you to accepting that whenever SOGI laws are enforced with an explicit message of disdain of Christian vendors (either by state bodies or by individuals), then we should not ask vendors to accept the legitimacy of the enforcement of these laws.

    In fact, I think that this could be more than a further limitation of your view. On Yossi Nehushtan’s view (which I do not share), SOGI laws implicitly express a moral condemnation of the Christian beliefs of the vendors who discriminate. If this view were correct (while I reject it, it is still at least plausible), then your argument would entail that these laws could never be enforced against the vendors because they also contain masked disdain.

    Given the above, my view is that the most promising avenue is to rely on dignitary harm. In my ‘A General Right to Conscientious Exemption’ I go to great lengths to show that dignitary harm is not symmetrical between Christian vendors and LGBT costumers. Nevertheless, you claim that there is often symmetry in dignitary harm but only devote a few lines (in and around footnote 48) to defending this claim. I think more needed to be said on this.

29. Thank you, Jocelyn, for this challenge. In my article, I tried to press the vendor’s claim for symmetry in ways that many readers likely found stretched too far. For example, I suspect many readers reject my argument that vendors and customers suffer comparable dignitary harms when excluded from commerce.

    I have a similar reaction to your symmetry argument. I do not think, as you say, that customers want to apply non-discrimination norms to vendors “because they take the vendor to act immorally against them.” I would have thought that customers want non-discrimination laws to apply because they think they are entitled to avoid the indignity and inconvenience of being turned away based on their identity.

    Your account feels to me like someone saying: I want you to follow the law against battery because you would act immorally by punching me in the face. A more natural account might be that I want you to follow the law because I do not want to be punched, and I am entitled to insist that you respect my rights. My additional judgment that you would act immorally by not respecting my rights is not central to why I want you to follow the law.

    Indeed, I might accept the position of legal philosophers who think there is no general moral duty to follow the law, but that in a just legal system, it is permissible to punish lawbreakers. In that setting, I might not think you are immoral for ignoring the law, but I would still think I am morally entitled to legal enforcement.

    You say at the end that your skepticism is connected to thinking that anti-discrimination law is deeply connected to moral claims and commitments. I agree with this. But the connection can take several forms. One (which I reject, but others embrace) is that anti-discrimination law condemns as immoral the impulses that lead people to discriminate. So, if we ban discrimination based on sexual orientation, we condemn as immoral people who view same-sex intimacy as a sin and want to avoid serving same-sex couples. This stance seems unnecessary and largely harmful to the liberal aim of fostering cooperation among people with varied views. The second form is that when we ban discrimination, we judge discriminatory actions as immoral. We can remain, as a society, agnostic about religious beliefs and the desires for non-association or non-complicity they support. Our condemnation can be reserved for acting on those desires in contexts where the law justly demands equal treatment.

    On this latter account, I think the law can offer non-disdainful reasons for regulating discrimination. We can tell religious vendors that they cannot discriminate because discrimination causes dignitary harm and contributes to unjust oppression, and that their need to avoid complicity does not justify these harms because it relies on disdainful reasons. They also have alternative ways to avoid complicity. The moral judgment is based on neutral reasons that the vendor should accept. It is no more insulting to the vendor than telling him he cannot punch customers if his religion commands violence.

30. Thanks, Nelson, for the follow-up. I am sorry if I misunderstood your first comments. As you say, a lot is going on, and it is easy to miss ideas. Your clarification does go to the core of my argument. So, I will try to respond.

    I have worried from the start about your question of reasonableness. I mention that worry in the article (17): “One can argue that we should overlook disdain in others’ reasons because moral judgments about others’ behavior are not inherently disrespectful, even when used to justify legal rules. Suppose I believe your actions are immoral and argue that you should suffer a minor setback so I can avoid contact with you and live with integrity. You should accept this because you might have similar desires to avoid complicity.” I think this is your main point – there is nothing unreasonable about wanting to avoid contact with those we think act immorally, and nothing disrespectful about moral disagreement. So, we should take other people’s non-complicity concerns seriously, even if their view of us as immoral underlies their non-complicity claim.

    I tried to address this in the article. But I fear this was a weak point, and you are right to press me about it. Let me try a slightly new version (though perhaps it is unwise to float new arguments in a forum like this, so forgive me if this is just wrong).
    When we enact anti-discrimination laws, say against racial discrimination in restaurants, we reject disdainful arguments that can be voiced in neutral terms. The racist restaurant owner might say, “There are just some people I do not want to associate with. I feel uncomfortable in their presence because I dislike them and do not think we are meant to be near each other.” The owner might also say, “I know those excluded feel insulted by my views. I do not blame them for feeling this way. But they should stop and consider whether they share similar attitudes. Likely, there are people they dislike and do not want to associate with, and that recognition should lead them to see that accommodating my associational preferences is part of reasonable social cooperation.”

    When we adopt specific anti-discrimination laws, such as bans on race discrimination in restaurants, we prioritize non-discrimination over non-association. Undoubtedly, several features justify this choice. I think one of those features is the disdain underlying the neutral reason for exclusion, and the absence of disdain in the reasons for equality.

    It seems odd to me that we would enact an anti-discrimination law, despite the possibility of claiming that discrimination is part of reasonable associational desires we all have, in one form or another, and then accept parallel claims when non-complicity is offered as a reason for exemptions to those laws. Whatever concerns led us to reject disdainful neutral reasons against the laws likely remain as reasons for rejecting disdainful neutral reasons for exceptions.

31. Thank you, John, for these thoughtful comments. You raise four issues: bad-faith customers, animus by lawmakers or other officials, perfectionist interpretations of discrimination laws, and my claim of dignitary symmetry. I will take these up in turn.

    1. Bad-faith customers: When a customer’s request is primarily aimed at humiliating or harassing a vendor for their beliefs, my view does not require protecting the customer. Although these cases are not typical, when they arise, they are paradigmatic cases of masked disdain toward the vendor. The challenging question is practical: can the law reliably distinguish harassment from ordinary requests? If viable mechanisms exist, I might support allowing discrimination against bad-faith customers.

    2. Disdainful state officials: Your second question is more complicated. We should distinguish isolated remarks by a lawmaker in a large body from animus by an enforcement authority. The appropriate legal response might differ. I would hesitate to strike down laws that can be neutrally justified merely because a legislator offered inappropriate reasons (though the US Supreme Court, as you note, has focused on such remarks). In cases of biased enforcement, the proper remedy might be to correct or invalidate the tainted enforcement, rather than dismantle neutrally justified statutory protections. Inappropriate motives for justifiable laws raise a general problem in constitutional law about which I have little expertise. I do not think this general problem undermines my argument in principle.

    3. Perfectionist theories: If one adopted Nehushtan’s perfectionist reading, discrimination laws would arguably embed masked disdain by design. But that understanding of non-discrimination law is not required, and I think there are good reasons to reject it. Of course, I am not trying to resolve the broader debate between perfectionist and neutralist liberals. But in this instance, adopting Nehushtan’s account threatens to fuel our out-of-control polarization.

    When same-sex marriage was constitutionally protected in the US, Justice Kennedy wrote, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” Although Kennedy’s non-disparagement claim was ridiculed as naïve, the dissent underscored the urgency of taking a neutralist view seriously. Justice Alito scoffed, “Those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

    If we want to avoid further enflaming the culture wars and the democratic dysfunction they have produced, we cannot afford to prove Justice Alito right and Justice Kennedy wrong. A sincere commitment to non-condemnatory interpretations of our laws would be a good start. My account is not the only way to achieve that goal—John’s book offers an alternate, respectful view. But one of my central aims was to show how we can oppose discrimination without demeaning religious people’s non-complicity concerns as immoral or trivial.

    4. Symmetric Dignitary Harms: I do not think the first three concerns you raise undermine my core claim and require that I accept harm balancing as the right approach. But I agree with you that my argument that vendors and customers face comparable dignitary harms is only briefly defended and vulnerable to challenge. If that claim fails, then a harm-based approach like yours might be the best alternative.

32. Scott, I applaud your patience, stamina, and ingenuity in responding to so many interesting questions and objections!

    In your reply to Larry’s second post, you ask whether religious vendors would suffer a dignitary harm if they were required to leave the market or live against their values. If they would, then this makes their situation parallel to LGBTQ+ customers who suffer a dignitary harm when they are denied service by religious vendors.

    So far, I find this symmetry claim unconvincing and I want to try to articulate why.

    People sometimes feel humiliated by another’s enforcement of a moral norm even when that norm is fully justified. Suppose I am lazy and I let the garbage pile up outside my home for weeks, until eventually the neighbors call me out. Being called out is something I might experience as humiliating even though my neighbors are fully justified in doing so. If I were to feel humiliated, this wouldn’t detract from the justification of their complaint. (It’s true that the prospect of my feeling humiliated might arise for my neighbors as a consideration at the level of interpersonal ethics that counts against calling me out, but I don’t think it would make them less justified in calling me out if that’s what they do).

    In the scenarios you are studying, the reason given to religious vendors to justify making them serve LGBTQ+ customers is the value of nondiscrimination. They might feel humiliated to be called out by the law in this way, but that wouldn’t detract from the justification provided by that value.

    Likewise, the reason given to the LGBTQ+ customer is the value of noncomplicity. He too might feel humiliated by being turned away, but again we might say that if noncomplicity is an important value the humiliation doesn’t make a difference.

    In this way the dignitary objections do seem symmetric. In both cases, there may be humiliation at the moment of enforcement – call it “enforcement humiliation.” But, in neither case, does the enforcement humiliation move the needle if the values being enforced offer a good justification.

    But I wonder if there is an additional dimension of humiliation for the LGBTQ+ customers? Being turned away reinforces for them pre-existing social stigmas about sexual minorities (that they are shameful and abhorrent, belong in the shadows and closets, shouldn’t be publicly acknowledged and celebrated, etc.). It is humiliating to be treated in a way that reinforces these harsh but still fairly pervasive judgments about commitments that are central to one’s identity. (This bears on the question, which others have raised, of why discrimination law should single certain characteristics out for protection).

    Is there an additional dimension for religious vendors? Some secular people think of religious people as homophobic. Does forcing religious vendors to sell to gay people reinforce this stigma? This seems like a stretch (but maybe I am lacking in empathy). The implication would be that to avoid humiliating the religious by reinforcing a social stigma that regards them as homophobic they should be permitted to continue engaging in a practice that is widely regarded as homophobic. Scott, do you think there is an additional dimension of dignitary harm for religious vendors?

33. Thank you, Alan, for pressing this issue. As I just noted in my responses to John and Jocelyn, my symmetry-of-dignitary-harm claim is only briefly defended and strikes many people as counterintuitive. If that claim is wrong (and if we accept that the customer’s dignitary claim is weighty—which I think Andrew might doubt), then my argument loses some force.

    My claim might still be valid. But, as you noted at the start, it might be unnecessary. We might conclude that exemptions are unnecessary by comparing the unavoidable, severe dignitary harm to customers with the avoidable, practical harm to vendors. This conclusion is not without problems – the harm to some vendors of having to change jobs might be severe, while the dignitary harm to some customers might be small. But this balancing approach might resolve the conflict without any need to consider disdainful reasons.

    I like your distinction between enforcement humiliation and humiliation that stems from pre-existing stigma. As you imply, being excluded from some activity because of who you are might be more humiliating if that exclusion evokes a broader set of disadvantages and associated stigmas. This idea might prompt inquiries into comparative historical disadvantage or current stigma. I suspect some religious people would claim that they suffer from the stigma of being regarded as bigots (as you suggest), but also that they are stigmatized as backward and superstitious in a largely secular society. Of course, we might disagree and find that fundamentalist Christians in the United States suffer no recent stigma or oppression that is comparable to that of LGBTQ people. This is another way to deny symmetry.

    I think there are other ways to understand the issue than either enforcement humiliation or pre-existing stigma humiliation. One might regard the dignitary harm of exclusion based on central features of identity as a formal (rather than emotional or oppression-connected) harm. A person is not treated as equally worthy of respect if they are banished from an essential part of public life based on their characteristics unless they are willing to compromise their integrity. The dignitary harm is a denial of equal worth, without any need to ask whether the denial is distressing or connected to a network of other social stigmas and disadvantages.

    This more formal account of dignity may not appeal to everyone, and I am not sure it is appealing to me. However, I see it as an advantage of my account that it offers a reason to refuse complicity-based exemptions that can be accepted by people who embrace this account of dignitary harm. Alternative approaches depend on controversial claims about which form of dignity matters, whose exclusion is more humiliating, or which group suffers more from social stigma. I do not mean that the state must remain neutral about these questions. I mean only that justifications that can be accepted by those they disadvantage might be preferable to justifications that rely on claims that enflame our disagreements by comparing the feelings of opposing groups, each of whom feels they are wrongfully stigmatized by society.

34. Thank you, Scott, for the fascinating and rich paper, and Alan, for the extremely clear précis.

    I wanted to press further on the point that Jocelyn and Andrew have both raised about how the account leans heavily on the fact that existing antidiscrimination law classifies some groups as protected. If the account is to explain, for example, why the vegan mall owner’s complicity complaint should win out over the butcher’s interest in avoiding disdainful judgment, but why this should not be the case for the religious baker and the lesbian couple, then the account will have to say something about why discrimination against gay people is worse, morally speaking, than discrimination against carnivores, and hence why special protection under antidiscrimination law is warranted in the first place.

    To put my cards on the table, I (like Amy) favor a subordination account of discrimination and discrimination law, and so I think that the reason why discrimination based on protected traits (like being gay) is worse than discrimination based on “idiosyncratic traits” (like being a carnivore or having big ears) is that people with those traits are subject to a public, widespread pattern of unmerited lesser regard, which in turn constitutes their unmerited lower social status. (In this respect, I am also sympathetic to Alan and Larry’s observations about public humiliation and social stigma, as well as to work by Niko Kolodny and Sophia Moreau.)

    In your recent reply to Alan, you suggest an alternative explanation, namely that protected traits deserve special consideration because they are central features of identity, and “A person is not treated as equally worthy of respect if they are banished from an essential part of public life based on their characteristics unless they are willing to compromise their integrity.”

    Although it is no doubt true that a person’s race, religion, and so on will often be closely related to their identity, I doubt that this is always the case. For example, consider the Nazi persecution of people with at least one Jewish grandparent, or discrimination against people with remote Black ancestry under the “one-drop rule” in the Jim Crow South. Although the people who were targeted by such discrimination often did not see being Jewish or Black as part of their identity, it nonetheless seems to me that racial and religious ancestry are traits that ought to be given special protection under anti-discrimination law. (Indeed, California classifies ancestry as a protected trait.) To take some less fraught examples, age (over 40), national origin, marital status, and genetic traits are classified as protected traits in at least some US jurisdictions, but I suspect that, for many people, these traits are not part of their identities. It seems plausible to me that the law ought to prohibit discrimination against a white person from Mexico on the basis of national origin, even if that person immigrated to the US as a baby and does not “identify” as Mexican.

    In contrast, the subordination approach has a straightforward explanation of these cases: such traits deserve special protection under the law if people with these traits have inferior status in our society. This is one reason to prefer the subordination account of an identity-based one.

    That being said, I understand that one advantage of the identity-based approach you float is that it does not require courts to make contentious judgments about connections to social status or subordination, and hence fits better with liberal neutrality and avoids the danger of polarization. So one might both accept the claim that protected-trait discrimination is wrong for anti-subordination reasons and nonetheless think that the law should follow the identity-based approach in determining which traits are protected. However, one might also worry that this hybrid approach is problematic for reasons of public justification, since it would require the law to mask its own purposes. If the real reason the law prohibits discrimination against LGBTQ people is that they are unjustly subordinated, but it publicly justifies that protection by appeal to identity-centrality, it would ask citizens to accept a neutral-sounding justification that conceals a more controversial moral judgment.

35. Thank you, Christian, for these excellent points. You mention (as have several other people) my reliance on existing law. In the rush to address other issues, I have not had a chance to explain that idea. Maybe I can say something about it now while I address your concerns.

    Likely, I have been insufficiently careful in some of my statements. The position I intend to defend is that if we adopt an ideal form of anti-discrimination law, those protected by it should not have to accept disdainful reasons for being subjected to discrimination by those seeking exemptions. I suspect I hold the same view about imperfect, but reasonably just, existing law.

    My aim in adopting this position is to develop an argument against complicity-based discrimination that is agnostic about the nature of discriminatory wrongdoing. Whatever one’s view of why discrimination is wrong, I think you should regard exemption requests based on non-complicity as inappropriate because they offer disdainful reasons.

    You, like Amy and many able scholars in law and philosophy, embrace an anti-subordination view about the wrong of discrimination and the point of anti-discrimination law. You offer insightful observations on how other theories fail to fit our laws and intuitions. If pressed to choose, I would side with you (though I have not developed a firm view—discrimination is not my primary field of study). I did not mention alternatives to anti-subordination because I think they are better. I mentioned them because I think it counts as an advantage of my theory that people with varied views on anti-discrimination law can embrace it.

    Several people, including Alan, have urged that my account is not needed and that a simpler balancing of interests can resolve conflicts between discrimination and non-complicity. I worry about that approach for various reasons. But the main one is that dismissing a vendor’s dignitary concerns as unimportant or less urgent than customers’ concerns relies on an anti-subordination account of discrimination. If you think such accounts are valid, perhaps this reliance is unconcerning. But the account is controversial and very likely not embraced by the same conservative vendors who are disadvantaged by discrimination rules. Of course, if they are wrong, it might be too bad if their interests are defeated by a controversial theory they reject. But as a political matter, I favor justifications that try to reduce political tensions rather than those that enflame them.

    To be clear, I am not making an argument about legitimacy. If anti-subordination is a valid theory, then it should be accepted by everyone. My point is more practical. We should favor widely acceptable theories that might actually be embraced by those whose interests they disadvantage.

    I know that my effort at remaining agnostic about the wrong of discrimination might be frustrating. I hope this better explains why I have avoided taking any stand on the issue.

36. Scott—
    I join Alan in congratulating you and thanking you for a bravura performance here. Your paper and energetic fielding of our questions has made for a terrific conversation.

    I have an observation about your ongoing colloquy with Alan as it overlaps with my interventions. We all three agree that there is the possibility of substantial dignitary harm in the picture. I think we all three would agree that some vendors thwarted by anti-discrimination laws would feel harmed — not just by the frustration of their chosen course of action, but by the community’s repudiation of their beliefs and commitments. I think we all agree on a further proposition: We agree that we should reject the claim by the vendor that the dignitary harm of they experience should entitle them to an exemption. Where we disagree, I think, is in what moral analysis is required to justify the rejection of the vendor’s claim. You offer an argument that travels through the acceptability of the vendor’s claim to the person the vendor refuses to serve,. Alan offers an outweighing claim based on the special depth of dignitary harm experienced by members of subordinated groups. Alan’s approach could be enlarged upon: Not only do members of subordinated groups experience a magnification of dignitary harms, they experience the great harm of being members of a subordinated group and their rebuff by vendors in the aggregate may well exacerbate or reinforce their subordination. You might well respond to this by saying that members of a subordinated groups have a special dignity-rooted reason to reject the claims for an exemptions by vendors. But then we are back at the question of whether we are advantaged by invoking the test of the reasonable rejection of a claimed exemption by the victim of discrimination, over acknowledging more directly the moral force of claims by members of subordinated groups not to be discriminated against.

37. Thank you, Larry, for your kindness and insights. I think I will forgo a reply. I am running low on new thoughts (not to mention the energy Alan kindly admired), and I suspect anyone who remains online may be running low on patience. Although it is, of course, too late to fix my article, I expect to enjoy rethinking these ideas as I review our discussion. Thank you for giving me so much to consider.

38. Before Pea Soup closes the comments, I want to thank everyone for a wonderful exchange. Of course, thank you to Patrick and Ignacio at Pea Soup for inviting us and facilitating, and Alan for the fabulous precis and follow-up questions. Thanks, everyone, for engaging with the ideas, pressing me to be clearer, gently pointing out challenges, and offering creative solutions. I knew coming in that these questions were complex, and now I have a deeper appreciation for the difficulty. I enjoyed getting to know you and hope to talk with each of you again.

    Scott

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