Thursday, July 05, 2018

Privacy and Anti-Gay Discrimination: What's Old is New Again

By Sherry Colb

My column on Verdict this week discusses the US Supreme Court's decision in Carpenter v. United States. The Court held there that the government must get a search warrant before obtaining cell site location information from a target's wireless carrier. This means that if the government wants to know your comings and goings over the course of some period of time, and it hopes to do so by looking at a record of your cell phone's approximate locations (revealed to and recorded by your carrier at regular intervals when your phone is on), it needs to first go to a magistrate and successfully apply for a warrant.

The lineup for the 5-4 decision was somewhat reassuring: Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy was not part of the five, so his departure should leave things unchanged for now in this one area of Fourth Amendment law.  In writing his opinion, moreover, Chief Justice Roberts said that people enjoy a reasonable expectation of privacy in the approximate locations where their cellphones (and therefore they) visit over time.

Why is the "privacy" formulation important? Because procedural (Fourth Amendment) privacy has sometimes been linked to substantive privacy, and substantive privacy under the Fourteenth Amendment includes such rights as contraception, abortion, and gay sexual relations.

Does this mean that I think the Chief Justice is now on board with protecting substantive privacy rights? No. I think he believes in digital privacy and chooses to rely on the phrase "reasonable expectations of privacy" that the Court has used since 1967 to refer to freedom from unreasonable searches. He is less inclined than some of his colleagues to throw out everything he dislikes.

I do think that the decision by Justices Thomas, Kennedy, Alito, and Gorsuch to reject the Fourth Amendment privacy claim asserted here suggests a readiness on the part of those remaining on the Court to start hacking away at substantive privacy as well. Justice Gorsuch avoided even uttering the word "privacy" more than a couple of times during the Carpenter oral argument. I suspect he hopes to eliminate privacy--especially the substantive kind--from our constitutional lexicon.

In considering the vitality of privacy rights, I want to focus here on an argument about homosexuality that I had not heard since the early 1990's but which has surfaced again lately. In the late 1980s, liberal judges and scholars sought to circumvent the Supreme Court's ruling in Bowers v. Hardwick--which upheld the application of Georgia's sodomy ban to a same-sex couple--by arguing that laws discriminating on the basis of sexual orientation offend equal protection because they are based on status rather than conduct. A couple of examples of this effort to invoke the conduct/status distinction to challenge anti-gay discrimination can be found in Judge Norris's concurrence in the judgment in the Ninth Circuit's 1989 en banc decision in the Watkins case and Cass Sunstein's 1988 essay in the University of Chicago Law Review.

The Watkins case was a challenge to the version of the ban on military service by gay and lesbian service members that was then in place. Judge Norris was right that the ban targeted status, rather than conduct. It excluded people who were gay, independent of their sexual conduct. A man could be deemed straight even if he had had sex with another man.

The Supreme Court never ruled on the argument that the old ban was invalid as status-based, partly because the Ninth Circuit did not rule on that basis. The en banc majority in Watkins adopted an estoppel theory that applied only to Watkins. Meanwhile, the old ban was superseded by the "Don't Ask, Don't Tell" policy adopted during the Clinton administration. Under this policy, gay people could be admitted into or remain in the military but only so long as they kept the fact that they were gay a secret. Gay service members who came out of the closet were not welcome. In addition to targeting gay status (rather than just conduct), Don't-ask-don't-tell probably violated the First Amendment freedom of speech as well. After all, revelations of one's status were specifically forbidden.

Bowers v. Hardwick was overruled in 2003 by Lawrence v. Texas. Don't-ask-don't-tell was repealed by the lame-duck Congress in 2010. Thus, the conduct/status distinction may seem like a historical relic. Yet, as I shall explain shortly, it has lately made a comeback, this time in the service of conservatives rather than liberals. Hence, the distinction warrants some further thought. I'll consider it in the context in which it arose--gay rights.

According to some people, it is wrong to discriminate against a gay person for being gay, but it is fine to penalize gay behavior that one finds objectionable. The reason, they say is that people cannot change who they are or are not, but everyone can conform their behavior to prohibitions on conduct.

To be more concrete, imagine that you owned a lunch counter and refused to seat gay people. Even a celibate gay priest would not find a seat at your establishment, because you care about who someone is, not just what they do. Many people wold condemn your rule because you are choosing to treat some people worse than other people on the basis of a status characteristic that they cannot change. That seems unfair.

Now imagine that you change the rule. You say that you do not care what someone's sexual orientation is. All are welcome at your establishment, so long as they do not engage in same-sex sexual relations. (Put to one side how you would even know whether people do or do not engage in such relations). A strong believer in the status/conduct distinction would say that you are now treating everyone equally, because everyone is capable of refraining from same-sex sexual relations. You would welcome both a straight couple and a celibate gay priest.

This argument sounds very much like the defenses people offer for voter ID laws that function much like the poll taxes, literary tests, and grandfather clauses of yore, to keep people of color from voting. On their face, all of these policies are individual-status-neutral: everyone has to refrain from same-sex relations, everyone has to obtain and bring a voter identification card, everyone has to pay the poll tax, everyone has to learn to read, and everyone needs to have a grandparent who voted. In practice, of course, the policies selectively harm particular groups and do so knowingly and often purposefully.

The baker in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n believes that he is not discriminating against gay individuals. He will sell bread and rolls and cookies to gay people just as readily as he will sell them to straight people. His only problem is with same-sex marriage.

The baker will not provide a cake for a same-sex wedding, because his religion prohibits same sex marriage (presumably, his is the religion whose Bible says "If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death; their blood is upon them."). But his opposition is to the conduct of marrying someone of the same sex, not to gay people as such.

The baker's approach is a bit milder than the Georgia law that was upheld in Bowers v. Hardwick or the Texas law that was struck down in Lawrence. By contrast with Georgia and Texas, the baker did not target everyone who engaged in same-sex relations, just those same-sex couples who were preparing for a wedding.

Still, the baker's belief that he was not discriminating rested on a very similar foundation. He viewed same-sex marriage as "conduct" that he could refuse to endorse with a wedding cake. He viewed gay people, by contrast, as occupying a "status" that he accepted and against which he did not discriminate. He is fine with gay people; he just does not want them to get married to someone of the same sex or to use his cakes when they do.

For a while, I found the "complicity" argument of the baker very difficult to understand. He said that because of his religion, he regards same-sex marriage as sinful. To nonetheless have to supply a same-sex wedding with one of his wedding cakes would be for him to condone a sin and to participate in violating the religious prohibition against same-sex marriage.

My reaction to this was to think that people do all sorts of things with the money we pay them or the products we sell them of which we might morally or religiously disapprove. Some of the people buying cakes will be celebrating the birthday of a white supremacist; others will be celebrating a marriage between people of different religions when the baker opposes such marriages; still others might be commemorating a relationship that began as an adulterous affair. We do not ordinarily get to (or even choose to) restrict sales to occasions of which we approve, and conversely, no one would infer our endorsement of a buyer's behavior from the fact that we sold her a cake.

I now understand the complicity argument better. The baker does not perceive himself as discriminating on the basis of sexual orientation at all. He therefore does not regard himself as needing an exemption from the anti-discrimination law. 

He is simply expressing his religious opposition to same-sex marriage by refusing to sell a cake that will honor a same-sex marriage. There is therefore no conflict between his rights and the rights of gay people. There are only his rights, which he can accordingly interpret expansively.

Here's an analogy. Imagine that I sell flowers. Imagine further that I am vegan and that I regard 4-H clubs in which children "raise" animals for market as a deliberate exercise in desensitization and an assault on children's empathy for animals. A child nurtures and grows attached to a cow or a sheep or a goat only to eventually hand him or her over for sale at auction to a slaughterhouse. According to one article praising the process, "[c]hildren learn what it actually takes to raise an animal for food and then let it [sic] go."

Children come to see this betrayal as part and parcel of a noble endeavor, turning trusting and gentle beings into food and clothing. In my example, I regard the endeavor as ignoble, given that we can replace slaughter-derived food (including cows' breast milk and chickens' eggs) and clothing with healthful, lovely plant-based alternatives. Assume that a man enters my flower shop and asks for ten bouquets of roses to celebrate the graduation of ten teenagers from 4-H. (Assume that 4-H holds such graduations). 

I refuse. I refuse because I consider 4-H an immoral and cruel endeavor, graduation from which signifies successful indoctrination into an extremely violent ideology about the proper place of nonhuman animals. I am not discriminating against anyone on the basis of membership in a protected group, and I am not even refusing to sell flowers to the individual graduates, if they purchase them for something more peaceful than 4-H, like a boxing match, say.

If asked what right I have to refuse to sell flowers in these circumstances, I might invoke veganism as a moral system in which violence against animals has the status of religiously prohibited behavior. I might even say that I would feel like an accomplice in 4-H's brainwashing efforts if I supplied flowers to the graduating students.

I would, in any event, reject the notion that I am discriminating against anyone. Perhaps everyone in this particular 4-H class is Christian. Their being Christian (or Jewish or Buddhist) has nothing to do with my refusal. I am protesting the normalization of violence against animals, and whatever traits the graduates happen to have are irrelevant to me.

Everything in this example makes sense. I could credibly say that I am not boycotting people; I am protesting the 4-H process, which is morally objectionable conduct. If anyone claimed that I was discriminating against Christians (who might be overrepresented in 4-H), I would scoff at the claim. I suspect that the baker feels that way about what he did. He has nothing against gay people, he says; he just believes that same-sex marriage is wrong and does not want to help celebrate it by selling a cake for the occasion.

One important difference between the baker's actual case and my hypothetical case is that same-sex marriage is much more closely identified with being gay than is 4-H with being Christian or any other protected status. Refusing to bake for a same-sex wedding is thus more like refusing to bake for an interracial wedding than it is like refusing to sell flowers for a 4-H graduation. Though not all gay people marry, enough do that it makes sense to compare participants in opposite-sex marriage (straight people) with participants in same-sex marriage (gay people) and characterize the baker as refusing to sell cakes for the weddings of gay people while willingly selling cakes for the weddings of straight people. 

The baker, in other words, wants to know who the people getting married are--are they both men or women or is one a man and one a woman?--in order to know whether to sell them a cake. He then accepts or rejects their orders accordingly, the characteristic sign of discrimination. I, by contrast, look only to what the people buying flowers are doing, which is not a sign of being in one or another oppressed group; if the same 4-H people were to celebrate their college graduations or their victory in a table tennis competition, they could get whatever bouquet they wanted.

For the baker, this construction will seem unfair, because he would divorce gayness from same-sex weddings, welcoming the former while rejecting the latter. That separation makes sense if one adopts the act/status distinction from the bad old days, when everyone--gay or straight--could decide to marry someone of the opposite sex and no one--gay or straight--could wed someone of the same sex. The fact that gay people do not experience the opposite-sex marriage option as a benefit, and the fact that straight people do not experience the same-sex marriage prohibition as a burden, get lost when we embrace the act/status distinction when it comes to sexual orientation.

Whether he chooses to see it or not, then, the baker is discriminating against his gay customers. He believes that they should not be marrying each other and does not want to supply cakes for their wedding celebrations. That is the reason he is discriminating, not a negation of that discrimination. Racists, likewise, used to believe (as a disturbing number still do believe) that black people should not marry white people. They were fine with black people marrying other black people and white people marrying other white people. The Supreme Court rightly called that race discrimination at the late date of 1967.

Everyone can cite some reason for discriminating. Those who opposed interracial marriage did not lack for religious justification. As one judge said, before the Supreme Court struck down a ban on interracial marriage, "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix." 

The question that faced the Supreme Court and that the Court failed to answer in Masterpiece Cakeshop was whether the Constitution requires a religious exemption from a general law prohibiting discrimination on the basis of sexual orientation for someone who claims that selling a cake for a same-sex wedding feels like complicity in sinful behavior. Being gay is not just an orientation; it is also about conduct; excluding people who do "gay things" like same-sex marriage thus excludes gay people. It is discrimination.

I have little hope that the Court will answer this question correctly. In fact, I do not expect the Court to pose the question this way at all. Now that the "conduct/status" argument has been revived and converted to conservative ends, I expect to hear it again. 

The Court will, I think, characterize anti-gay bigotry as conduct-based rather than status-based and accordingly as nondiscriminatory. Sure, the conservative majority will say, a state can define refusal to participate in same-sex weddings as "discrimination" within the meaning of state public accommodations laws if it wants to do so, but that's not going to justify overriding anyone's speech or religion. There's a compelling interest in combating real discrimination, the Court will likely say, not this fake sort as defined by state law. The Court will then use this formalism to define constitutionally relevant discrimination narrowly: no one having a same-sex wedding would be able to get a cake from the baker, whether that person was gay or straight; and anyone having an opposite-sex wedding would get a cake from him, whether they are gay or straight. Bigotry magically disappears.

If it can, the Court will likely characterize the issue in just this way. And once we are no longer dealing with real discrimination, it becomes an easy call to allow the baker to act in accordance with his religious convictions. The contest, after all, would then be between the desire to purchase a cake for a same-sex wedding and sincerely held religious convictions barring same-sex marriage and barring the expression of approval for same-sex marriage. With no real opponent, the constitutional right to freely exercise one's religion (and to freely speak) would prevail.

Would it be better if the justices said that the baker was engaged in real anti-gay discrimination but was allowed to do that because his religion required it? It would be deeply upsetting, but it would be better, because people who oppose discrimination would know what we are up against.

So maybe the most we can hope for, when someone like the baker in Masterpiece Cakeshop eventually comes before the Court without a distracting and meritless claim of religious animus, is that when the Court invalidates laws prohibiting sexual orientation discrimination--as applied to people religiously opposed to same-sex marriage--it does so plainly and without artifice.


David Ricardo said...

What people who give even a small amount of understanding and support to the bigoted baker in Masterpiece fail to understand is the underlying religious aspect of discrimination. Freedom of Religion has long been used as a basis for trying to legitimize discrimination, both racial and religious.

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix"

Kinda makes you feel warm all over, those words by a Judge.

The Court rejected a religious based discrimination against mixed marriages in Loving. If anyone bothers to look at the underlying state cases in Vriginia they would see that religion served as the basis for the Virginia law disallowing racially mixed marriages. The principle in Loving was that no, religion cannot be the basis of racial discrimination. A person in commerce may sincerely believe mixing of races is against God's word, but that person cannot refuse to serve mixed race coupls.

Now the Court has moved away from this principle. If a bigoted baker can refuse service to a SS couple, can't the same baker refuse service to a mixed race couple? Can't anyone in commerice refuse to serve anyone whom they dislike on prejudicial basis because it violates their so-called religious beliefs? The Court in Masterpiece says sure they can. A dark day for equal rights.

Joe said...

DR references Loving and the "it will lead to incest, polygamy etc" [which a person who commented here and later went to the Trump Administration argued in fact is easier to defend as a constitutional right than same sex marriage] argument showed up there too as someone who looks thru the transcript of the oral argument over at can see.

One contributor here thinks Roe v. Wade was wrongly decided but that Obergefell v. Hodges was not because that protects equal protection. But, as suggested by the main post, there is an interconnected character to these subjects. Griswold argued that privacy was a necessary component (using fancy words that some ridicule though the concept is mundane) to protecting various enumerated rights. Justice Douglas earlier (and later) was more open-ended about rights necessary a free people. Justice Kennedy also broadly spoke of "liberty."

But, the debate often boils down to equal protection, in this context based on sex/gender/sexual orientation. There is a legitimate obligation in public accommodations to serve people without discriminating by personal characteristics of that sort. An argument that religious belief could justify it was rejected. That left a poorly argued result in Masterpiece Cakeshop claiming religious discrimination on behalf of the government. A view that was not so respectfully followed in the travel ban case.

Two justices wanted to go further and two more at least voted to take the case & probably would have gone further if they had a fifth vote. Like Kagan and Breyer, Alito and Roberts vote strategically. A new fifth vote is coming.

Shag from Brookline said...

A bigoted baker might object on religious grounds to vend a birthday cake ordered by one spouse in a SS marriage to honor his/her spouse's birthday with a message of love.

Joseph said...


What about refusing to sell flowers to the Church of the Lukumi Babalu Aye? Maybe you're willing to sell to individual members and even maybe for some church events but not where you believe animal sacrifice may occur. What if instead of flowers you sell knives?

Far as I can tell, the conduct/status distinction never really went away but it has always had limited power. You very well may be right about the future, but I don't see where the argument has noticeably greater strength today. That view did not prevail in Masterpiece.

In the employment context courts make conduct/status distinctions but they are fairly limited. Discrimination on the basis of pregnancy is established as discrimination on the basis of sex, for example. But requiring female employees to wear makeup may be allowed (Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006)).

David Ricardo said...

Those of us who are veterans of the Civil Rights movement thought we had decided the question of discrimination in the market place, specifically, that no one has to enter into commericial activity, but if you do you have to serve any and all. The Freedom of Religion argument against doing business with African Americans was supposedly decided in favor of equality and against bigotry, even religious bigotry.

Now we have a Court that wants to revisit the issue, and there is every indication that the Court will validate discrimination as long as a person professes a 'deeply held religious belief'. They already have, not just in Masterpiece but also in cases involving employer discrimination against women who have a right to contraception access. It's not religion we are talking about here, its is discrimination pure and simple, and something conservatives on the Court and in the Republican Party while not necessarly being bigots themselves are willing to tolerate in law for others. Which of course makes them bigots despite their denials.

Shag from Brookline said...

It took 217 years to "weaponize" the 2nd A and perhaps a few more to "weaponize" the 1st A.

Joe said...

Item: reports Trump has narrowed #SCOTUS search to 3: Kavanaugh, Kethledge and Barrett.

Two typical white guy court of appeals conservative types and a younger newbie to the court of appeals with court evangelical cred that conservatives already using to criticize liberals as anti-religious. "We are the true feminists" message also possible.

David Ricardo said...

The reason it is taking so long to 'weaponize the first amendment' is that conservatives were not sure it should be used as supresssion (see, the term 'Gag Order' is associated with them and the Docs v Glocs cases proscribe government speech) or to characterize religious bigotry as free speech. This conflict has now been resolved, 1st amendment can be used to supress speech conservatives do not agree with, and to support bigotry they do agree with.

Shag from Brookline said...

Trump's "Despot Dome" Administration is designed to protect the Trump brand of swamp. While Scott Pruit, an accomplished wheeler-dealer, has departed, his "acting" stand-in will be another wheeler-dealer. Unlike Harding's "Teapot Dome" scandal, Trump's career demonstrates his long engrained "The Art of the Wheeler-Dealer" accounting for Trump's Hokie-from-Okie former swamp master.