The Opt-Out Problem in Anti-Discrimination Law

By Mike Dorf

Retired Justice Albie Sachs of the Constitutional Court of South Africa was visiting Cornell for the last few weeks as the A.D. White Professor at Large--a university-wide designation under which he will make a few more such visits during the next few years.  For those unfamiliar with Sachs, he is simply a giant, a world-historical figure who was a key figure in the anti-apartheid struggle (losing an arm and the use of one eye when he was bombed by agents of the regime, as well as spending years in exile and prison), a leading drafter of South Africa's post-apartheid constitution, and, as a Justice, one of the key figures in setting the path of its construction.  Sachs is also a wonderful person, a good man as well as a great man.

And so, naturally, I write to criticize him!  Or at least to register a reservation about something he said.

Last week, Justice Sachs gave a lecture on the Fourie case--the 2005 judgment of the SA Constitutional Court, authored by Sachs for a unanimous court and finding a right to same-sex marriage under the South African Constitution.  The lecture was riveting, weaving together Sachs's own experience in the anti-apartheid struggle with the struggles of LGBT South Africans for equal rights.  Although the decision was understandably controversial, Sachs and the SA Constitutional Court had two great advantages: First, the South African Constitution expressly forbids discrimination on the basis of sexual orientation (a provision for which Sachs himself deserves some credit); and second, the ANC relatively quickly came around to supporting the judgment so that even though homophobia, including homophobic violence, remains a real problem in parts of South Africa, the political system has accepted the judgment.

Justice Sachs also noted that the legal opposition to SSM in the Fourie case came mostly from the religious community.  He went on to say in the opinion that he thought it important to recognize and validate the "religious beliefs held by the great majority of South Africans."  And indeed, the opinion in Fourie does just that.  In the end, however, the Court states that religioius doctrine cannot be the basis for interpreting the Constitution, even as the Court also states that "no minister of religion could be compelled to solemnise a same-sex marriage if such a marriage would not conform to the doctrines of the religion concerned."

And thus we come to the point where the rubber meets the road.  Granted that constitutional democracies that protect both religious liberty and the equal dignity of persons will recognize a right to same-sex marriage (or interracial marriage, for that matter), even while acknowledging that no minister, priest, rabbi, or imam will be legally obligated to perform a marriage ceremony that he or she regards as impious.  But how much farther do such "conscience exceptions" extend?  To wedding photographers (as discussed in my post and Professor Colb's column on the New Mexico case last week)?  To bakers?  To individual government clerks who object to issuing marriage licenses?

During the Q&A session after Justice Sachs's lecture last week, I asked whether there had been post-Fourie cases in South Africa presenting this sort of question.  I also suggested that the recognition of a right to same-sex marriage itself has implications for the obligations of private third-party contractual relationships in light of Article 39 of the SA Constitution, which states: "When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights."  (In my question, I referred to this provision as giving the SA Bill of Rights "horizontal effect," but Justice Sachs resisted that characterization, calling it only "diagonal effect." Upon reflection, I agree with his correction.  Horizontal effect would mean that the Bill of Rights directly binds private actors.  The actual Article 39 only means that the Bill of Rights will influence the development of the law applicable to private actors.)

So, how should the Fourie decision apply in a South African version of a case like the one from New Mexico, involving a photographer?  Justice Sachs indicated, although he did not squarely commit to the proposition, that he generally favors wide conscience-based exemptions.  He noted (as did a commenter on my post last week) that it would be odd for a couple to seek out a photographer (or baker or florist) who is morally opposed to the very fact of their wedding.  Wouldn't they prefer services to be provided by people who want to help them celebrate?

I certainly agree as a matter of prudence.  Circumstances like those in the New Mexico case typically arise precisely because the parties want to bring a test case, rather than out of any real desire to employ the services of a reluctant merchant.

But in some circumstances there may not be any competitors eager to provide their services on a non-discriminatory basis.  In his Fourie opinion, Justice Sachs pointed to the fact that religious convictions are widespread in South Africa as a reason for giving them respect.  However, the more widespread the conviction, the more that giving exemptions based on that conviction undermines the anti-discrimination norm.  In a liberal metropolis, permitting an idiosyncratic religiously scrupled photographer, baker or florist to refuse services for a same-sex wedding does not undermine the ability of same-sex couples to find service providers.  But in a small town--the sort of place where the anti-discrimination law may be most needed--such a religious exemption could mean the complete denial of services.  Accordingly, the conflict between liberty and equality here strikes me as resolvable only by a judgment that one or the other value prevails.

My point is not that I would give greater scope to equality over liberty in this context than would Justice Sachs--although that appears to be true, as I favor limiting religious exemptions to a narrower category than he does.  My point is that this is a genuine conflict. Sometimes competing values cannot be reconciled; they can only be weighed to see which is the stronger in context.