Creative Incoherence: 303 Creative and First Amendment Exemptions to Antidiscrimination Law

Abstract

In 303 Creative, the US Supreme Court examined the conflict between state laws designed to protect gay persons from stigmatic and material harm in the public marketplace and the First Amendment freedoms of business owners who objected to same-sex marriage on religious grounds. Writing for the majority, Justice Gorsuch concluded, “When a state public accommodations law and the Constitution collide, there can be no question which must prevail.” In this essay, I use two elements of late philosopher John Rawls’s Political Liberalism (2005)—the “criterion of reciprocity” and “liberty and integrity of the person”—to better understand the broad implications of the court’s ruling. My analysis reveals that the majority opinion in 303 Creative fails to acknowledge the need for achieving a coherent scheme of liberty within a liberal democracy and, in so doing, it undermines, rather than furthers, pluralism. Additionally, the logic of the court’s ruling produces incoherent and inconsistent results—results that simultaneously expand and contract religious freedom and unjustifiably treat sexual-orientation discrimination differently from other types of odious discrimination. However, supplanting the court’s approach with Rawls’s “criterion of reciprocity” provides a coherent and consistent adjudicatory method for balancing religious freedom and the demands of equal citizenship. Furthermore, the argument I offer comports with legal analyses that focus on religious exemptions and third-party harm and the value of equal citizenship in religious liberty debates. Thus, my work supplements existing arguments against religious exemptions to antidiscrimination law and provides another substantive rejoinder to those seeking to scale back civil rights.