When Rights Collide: Same-Sex Marriage vs. Economic Freedom
The Supreme Court’s June 2015 Obergefell v. Hodges decision held that the fundamental right to marry extends to same-sex couples, a small minority of Americans. Among other things, the new right includes constitutionally guaranteed rights of inheritance and parental status for children.
An objective assessment of the impact of the Obergefell decision on religious freedom indicated that, despite contrary assertions from same-sex marriage (“SSM”) opponents, burdens on religious freedoms are low at most.
This article examines the impacts of Obergefell on economic freedoms in the context of commerce, not religion. The economic context is different from the religious context. It is more complicated because economic, religious, SSM, and sexual orientation (“s.o.”) rights or freedoms are all in conflict, usually in different ways for different groups of people.
The analytic framework
As described before, assessment of personal freedom impacts can be based on: (1) considering whether each affected freedom or right is constitutionally fundamental; (2) determining whether (i) impacts are high, moderate, low or none (or negligible), (ii) impacts are positive (freedom-expanding and/or easier or less costly to exercise) or negative, and (iii) the approximate number of people in major relevant groups; (3) current and projected public opinion; and (4) whether an overall net freedom gain or loss best serves the public interest based on objectively balancing all significant competing considerations and interests.
Speech, religion, SSM rights, and civil rights are all fundamental constitutional rights and are thus on an approximately equal constitutional footing. Economic freedoms are not fundamental and are subject to greater regulation.
There are many different groups of people that are either largely or potentially affected by SSM rights. Personal freedom impacts on individuals who live in the 22 states and D.C. that have laws banning discrimination on the basis of s.o. in commerce can differ from impacts on those who live in states where discrimination against customers on the basis of their s.o. is legal.
To limit the length of this article, key assumptions, the legal context, their estimated sizes and relative impacts on personal freedoms related to economic activities, speech, religion, s.o. and SSM are described here.
Transactions related to SSM in commerce constitute a very small proportion of all U.S. commerce, presumably less than 0.1% of GDP. Impacts on economic freedoms for people and businesses that support or oppose SSM are considered in that context. That consideration reduces the severity of negative economic and other rights impacts.
Summary of impacts on personal freedoms
In the case of religious freedom, the rarity of SSM-related commercial transactions, coupled with the fact that religious freedoms are overwhelmingly exercised at places of worship, the home or in private settings, no group is considered to experience any appreciable negative or positive impact on their religious freedom in commerce.
Many religious people who oppose SSM on religious grounds might argue that their religious freedom is heavily infringed, especially for religion-based businesses. That argument is judged to be too subjective and contradicted by the objective reality of (1) limited actual exercise of religious freedom in commerce and (2) the rarity of SSM-related commercial transactions.
The low frequency of SSM-related transactions in commerce coupled with the form of speech reduces the severity of freedom impacts on free speech. At most, some members in any affected group could experience a moderate negative impact on their freedom of speech.
For example, to the extent that the expressive content in cake decorations or same-sex wedding photographs constitute speech, it amounts to a tiny fraction of all free speech. In the case of people who want to express anti-SSM sentiments on the job, employers can allow, discourage or, in 28 states, prohibit that kind of speech or expression.
Again, many people who oppose SSM will argue that the burden on their free speech rights is higher but the objective reality of the commercial context contradicts those subjective arguments.
Surprisingly, the exercise of SSM rights in the private commercial context has no significant positive freedom impact on any group for any freedom. Impacts are all negative or none because (i) states can ban s.o. discrimination by law or tacitly accept discrimination by having no law and (ii) individuals, not laws, can choose to discriminate against disfavored groups -- e.g., LGBT people (about 9 million) and heterosexuals who support SSM (about 69 million).
The highest negative economic impacts arise for a very small number of people. For business owners and employees who strongly oppose SSM rights, the economic burden can be so high that affected businesses are economically not viable or that anti-SSM employees are forced to change jobs.
A high potential economic burden applies to business owners (about 0.1 million at most) in states with anti-s.o. discrimination laws.
For example, a Colorado state agency imposed a $135,000 fine against a Christian owned bakery for the owner’s refusal on religious grounds to make a wedding cake for a same-sex couple. Colorado is one of the 22 states with laws that ban discrimination based on s.o. in commerce. Despite a motive grounded in religious freedom, the bakery was liable for discrimination on the basis of the customer’s s.o.
Court cases like this are still ongoing, so the legal situation could change. That could result in lower economic burdens on SSM opponents if the Supreme Court ultimately decides that discrimination against SSM-related commerce on religious grounds is legal despite state anti-discrimination laws.
The biggest group of potentially affected people -- unemployed heterosexual and LGBT adults in any state (about 98 million) -- face no or only negligible impacts on any of their freedoms regardless of state law. Unemployed people may not care about what policies a business has toward commercial SSM marriage-related transactions or they can almost always find a business has acceptable policies.
Because of that, freedom impacts for this group are judged to be none or negligible.
Impacts on other groups and the rationale for impact judgments are described here.
The foregoing analysis indicates that extension of marriage rights to same-sex couples created a net contraction of personal freedom in the commercial context. Despite arguments by SSM critics that their religious, speech, and economic rights have been significantly burdened, the highest negative impacts affect very few people and most people experience no negative impact or low impact at most.
Burdens on personal freedoms of SSM opponents come from state anti-discrimination laws, while burdens on personal freedoms of SSM supporters and LGBT people come from SSM opponents.
Arguments by SSM opponents asserting serious freedom impacts overstates their case. The few exceptions occur for people in states with anti-s.o. discrimination laws. SSM opponents generally ignore or downplay impacts of Obergefell on both SSM supporters and the broader public interest. Similar biased opinion sometimes comes from SSM supporters. Those individuals tend to downplay the potentially catastrophic economic impact of state anti-s.o. discrimination laws.
Unfortunately, America’s two-party system, including most of the mainstream press, has done a poor job of explaining the situation to the American people. That failure constitutes a serious disservice to the public interest.
Serving the public interest generally favors expanded personal freedom when reasonable and confers reasonable deference to the will of the people. Expecting increasing acceptance of SSM in society is reasonable.
Poll data shows that about 69% of Americans favor laws that ban discrimination against same-sex couples in commerce, while about 55% support SSM rights. If this information is correct, it is fair to say that the will of the American people (i) supports SSM and (ii) opposes discrimination in commerce against people based on their sexual orientation. SSM opponents who discriminate against SSM supporters and LGBT people in commerce are a clear minority.
If nothing significantly changes in terms of the status of the law, the negative impacts on freedoms will decrease as time passes.
Absent unexpected events, the proportion of Americans who support SSM will continue to increase. Passing time will also reduce Obergefell’s polarizing social impacts, which is a benefit to the public interest. People will become accustomed to the new situation.
In view of all the circumstances, it is reasonable to conclude that extension of marriage rights to same-sex couples is more beneficial than detrimental to the public interest now and it will become more beneficial in the future.