Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts involving same-sex weddings and religious business owners. In place of them, this article defends the doux commerce theory, which argues that markets manage social pluralism but only so long as they are largely disconnected from deeper moral or political struggles. Under this theory, the outcome of the debate over religious businesses and same-sex marriage should be empirically contingent. Aggressive antidiscrimination laws may be necessary to insure meaningful access to the market, but where instances of religious discrimination are rare, there is no compelling justification for punishing idiosyncratic religious behavior. Indeed, doing so will tend to degrade the value of markets. Religious business owners and same-sex couples have made dueling claims about injured dignity. Gays and lesbians insist that religious exemptions from antidiscrimination laws assault their dignity, while religious believers claim that without such exemptions the law assaults their dignity. The doux commerce approach does not require that we resolve this intractable dispute. Rather, it counsels in favor of maintaining the market as an ideologically blasé space where we may peacefully and productively interact in the face of deep disagreements.
92 Indiana Law Review 693-733 (2017)
Oman, Nathan B., "Doux Commerce, Religion, and the Limits of Antidiscrimination Law" (2017). Faculty Publications. 1842.