There are virtually endless scenarios in which an employee, a small business owner, or a sole proprietor might decline to participate in a business activity or deny service as a matter of personal convictions or corporate values. In the absence of compelling reasons to punish such conscientious objection, they should be free to do so. The First Amendment guarantee of freedom of religion (i.e. freedom of conscience) is most necessary when it protects a minority with whom others strongly disagree. In the “land of the free”, the burden of proof should be on those who would use the power of government to coerce another to do their bidding. Here’s a couple dozen of the endless instances in which an individual or business should be able to make decisions in keeping with their ethical commitments. Such decisions inescapably discriminate (i.e. make a distinction or judgment) — not against vendors, customers or clients, but rather — against particular products or services that, for the provider, have an ethical dimension.
Two Dozen Examples of Conscientious Declination
- An online retailer might choose to not sell the Confederate Flag because of its association with slavery and secession.
- A tattoo artist might decline to ink a large swastika on the chest of a customer, or even to tattoo the face or hands.
- A caterer might decline to serve food at a bachelor party where there will be strippers.
- A private company might recognize same sex partnerships as marriages in their own benefits packages even in a state that doesn’t offer the same recognition.
- A Jewish talk show host might decline, or not decline, to pitch for Farmer John’s Pure Pork Sausage.
- A private computer company might choose to reject some submissions to its app store based on company values.
- A technology company might choose to not source its parts from China in view of its suppression of Falun Gong and Christianity and dismissiveness toward LGBT concerns.
- A freelance web designer might choose to not build a website for a local televangelist whom she thinks is misusing funds raised.
- A scientologist church might refuse to rent their meeting space to the local psychologist meet-up.
- An actor might choose not to play a part after seeing the script because of moral qualms about what is involved in the role.
- A national chain of bookstores might choose not to stock a book which denies the Holocaust, even if it is in high demand and the decision forces customers to look elsewhere.
- A sound mixer might refuse to master the tracks of a performing artist whose lyrics denigrate women.
- A Main Street ice-cream shop might decline to contribute to the annual Columbus Day Parade fund when solicited by the local Italian association after reading The Oatmeal.
- A grocery store might refuse to sell foods that include GMO ingredients.
- A bartender who has served a patron for years, after learning that this patron, when drunk, consistently walks home and verbally assaults his wife, might refuse service.
- An adoption service might not refer a client to an abortion clinic, or a pharmacist might not stock abortifacients, not wanting to participate in what they regard as the killing of an innocent human person.
- An art gallery might choose to not feature artwork by an artist whose content is, to the curator, morally objectionable.
- A real estate agent might choose not to represent a lot for sale based on opposition to its zoning and development plans.
- A T-shirt shop owner might refuse a job to print an inflammatory, anti-gay slogan on a hundred T-shirts.
- A Muslim press might decline to publish a book that contains depictions of Muhammad.
- Doubting their therapeutic efficacy, a pharmacist might choose not to sell some popular essential oils to avoid implying endorsement.
- A cosmetics store might refuse to sell products that have been tested on animals.
- A private university might refuse to host a conservative speaker that a student group has invited.
- A large company might refuse to do business with another business that does not treat their laborers fairly.
- A coffee shop might refuse to entertain offers from suppliers who sell non-fair-trade coffee.
- A florist, after selling flowers to a gay customer for years, might politely decline to do the floral arrangements for that same customer’s same sex wedding.
Decisions like these are made countless times every day. It is likely that you sympathize with some of the decisions, and not others. That is to be expected. The point is that it is the same principle of free exercise that protects in the sympathetic cases as in the unsympathetic. It is the same principle that permits a private company like Apple Inc. to discriminate between states by boycotting the one that violated its company’s values that ought to also protect another less powerful company when it declines to participate in events that violate its values. Freedom of conscience is for everyone.
The Religious Freedom Restoration Act in Indiana was a balancing test for litigation, a reasonable way of ensuring that ethical commitments, held personally and corporately, are held in balance with the noble ideal of equal treatment of all. It did not provide carte blanche for any party, but rather sought to keep potentially conflicting virtues — freedom, equality, and ethical conviction — in balance.
Until recent years, I had always thought that the liberal principles of toleration and freedom of conscience were two of the few values held in common by all parties in the American public, not to mention freedom of association and of contract. As Edward Feser points out:
In short, what conservatives are proposing is not only extremely modest, but is being defended in the name of their opponents’ own principles, the most liberal of principles, viz. the Jeffersonian principle that it is tyrannical to force someone to act against his conscience, and the Rawlsian principle that a pluralistic society should strive as far as possible to respect and keep a just peace between citizens committed to radically different moral, philosophical and religious views.
Freedom of conscience is, after all, our first freedom, as it ought to be. It is what has enabled us as an exceedingly diverse nation to live peaceably with others with whom we deeply disagree. But as it turns out, there is a new right in town to which all other rights must acquiesce: the right to be endorsed and celebrated for your sexual expression, no matter what it may be. Dissent will not be tolerated. Failure to comply will cost you dearly.
What country is this?
As a web designer, I have served clients who were pitching a product or idea I did not think much of. And if I were a florist, I would not, as a Christian, have scruples about providing bouquets to a gay wedding. But I have my own lines I will not cross. Hopefully we all do. If participating in an event violates one’s conscience, shouldn’t the state have a very compelling reason to coerce someone to conform using threats of punishment and poverty. Are those who opposed the Indiana bill really claiming that the kinds of moral considerations enumerated above should be barred from our economic life? Matters of ethical conviction are woven into one’s self-identity, and we can hardly insist that one’s work, to which we give so much of ourselves, should be an amoral space where genuine ethical convictions must be forfeit. If our ability to tolerate differences is so weak that we are unwilling to allow dissent that costs us no more than a call to another vendor, any regard for freedom of conscience we claim is shown to be hollow.