A Free Speech Response to the Gay Rights/Religious Liberty Conflict

Andrew Koppelman | October 1, 2016

The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free speech problem, but the Supreme Court has left the pertinent doctrine in a state of confusion. I offer a better account of free speech law, one that depends on some neglected free speech values—the protection of religious disagreement, the promotion of mutual transparency among persons, and the positive valuation of ethical confrontation. I conclude that, under familiar rules of constitutional avoidance, state antidiscrimination laws should be construed to allow this kind of speech.