Conscience in Commerce

Abstract

According to much current law and theory, a retail business that sells a particular good to one customer cannot refuse to sell that same good to another customer simply because of the latter’s identity. Thus, in many jurisdictions, wedding florists and cake bakers must sell their wares to both same- and opposite-sex couples, and reception hall owners must rent their spaces to both the NAACP and the Christian KKK. Call the principle underpinning this policy the “Equal Access” principle: The principle holds that a vendor can choose the products he sells but not the customers he serves. It lies at the core of recent cases in which religion and sexual orientation, or religion and gender identity, have clashed in the commercial sphere, and it is pervasive among commentators who seek to ensure that the marketplace remain a discrimination-free zone. This Article champions the egalitarian spirit of Equal Access but it argues that the principle itself is unworkable, unreliable, and perhaps even incoherent. Equal Access permits impermissible discrimination and forbids refusals of service that in fact promote equality’s ends. Further, Equal Access derives support from a problematic conception of the retail sphere – one that sees commerce as amoral and so cannot even make sense of a vendor’s interest in exercising their conscience at work. In place of this morally neutered conception, this Article aims to vindicate a picture of the marketplace as richly moral. And in place of Equal Access, the Article aims to offer a more principled and nuanced account of when and why retail discrimination is impermissible. That account would forbid identity-based discrimination but permit refusals of service for projects that foster hate toward protected groups, even where the hate-based project is intimately linked to a protected characteristic (as with religious groups that mandate white supremacy). Far from perpetuating discrimination, these refusals instead promote anti-discrimination norms, and they help realize the vision of the morally inflected marketplace that the Article defends.