David H. Levitt

Where do we draw the line? The problem of polarization

I have struggled with this issue – and still do. I don’t claim to have the answer – but in my view, too few have even asked the question.  The late Elie Wiesel, in the commentary to his version of the Passover Haggadah, points out that sometimes merely asking the question is itself an essential act.  The process of plumbing for the answer, even if one is not ultimately achieved, can illuminate and has its own intrinsic value.

In a famous case, a bakery that, due to its owners’ religious beliefs, refused to provide services for the wedding of a same-sex couple was found guilty of illegal discrimination. In another famous case, a retailer – also due to its owners’ religious beliefs – was legally allowed to not include contraceptives in its company-sponsored health plan.

The decisions, by two different courts, seem inconsistent. But they provide an illustration of an essential point – where do we draw the line?  When ought it be treated as inappropriate discrimination, and when ought it be treated as recognizing the legitimate right of an individual to govern his or her own place in the world – the freedom to choose?

Turn the question from the bakery case around. Suppose that the owner of the bakery was an African-American, and the proposed customer was the Grand Wizard of the local Klu Klux Klan chapter.  See this satiric article making that very proposal.

Would those who so strongly criticize the real baker also criticize the African-American baker? Almost certainly not.

Both bakers operate private businesses; neither is a state actor or representative. Shouldn’t any private business have the right to decide with whom it chooses to do business?  And, no matter our answer to that question, is there a guiding principle that tells us why one business owner should be allowed to discriminate against those whose beliefs he opposes, while the other cannot?

While these are legal issues arising out of principles of law (the Hobby Lobby case, for example, was based on statutory interpretation), merely referring to precedent and statute does not really solve the problem, because the question of which laws to enact in the first place depends on the underlying philosophical proposition.

The contention that private businesses should be free to refuse service goes too far. That assertion would allow restaurants to refuse service to people with differently colored skin, to require Rosa Parks to go to the back of the bus.  And yet, isn’t that just what the African-American baker is doing – using her own fairly and strongly held beliefs to decide with whom to deal?

There are those who are labeled – often self-labeled – as “progressive” who believe the answer is easy: the anti-gay bakery is bad, the African-American baker is justified, Hobby Lobby is wrong and should be boycotted.  Equally, there are those who are labeled – often self-labeled – as “conservative” who believe that the answer is also easy:  freedom of religion and association are fundamental principles of the founding of this nation – they are what the Pilgrims sought and a core of the Declaration of Independence; individuals should have the right to decide without requirements imposed by the government.

But both sides are mistaken; the answer is far from easy. So far, the closest thing to a “principle” that can be discerned is from former Justice Potter Stewart’s famous concurrence in Jacobellis v. Ohio on the question of the definition of “obscenity”:  “I know it when I see it.”

Is that all there is? Is to be left only to the eye of the beholder?  Well, not entirely.  Hobby Lobby was not, after all, deciding that its employees could not get contraception.  It merely took the position that, due to its legitimately held religious beliefs, it did not want to be have to pay for the contraceptives.  I am a strong pro-choice supporter, but I have no problem with Hobby Lobby’s position.  There are other alternatives for a women who wants contraceptives besides her employer’s corporate health plan, which the employer is not required to have in the first place.

In the end, perhaps, the best we can do is to acknowledge that there are two sides, and that neither holds their positions in bad faith. We can acknowledge the evil of discrimination, but we must also acknowledge the evil of mandating conduct.  What is needed is to avoid the hubris of certainty, to recognize that very few things indeed are truly black and white, but rather that the gray dominates.

Polarization is the true enemy. If ever one hears someone say that he or she has all the answers, that is the time to be skeptical.  We must always consider the viewpoint of the other.  If we can do that, and act with that appreciation in our minds and in our hearts, we stand the best chance of drawing the line as close to the correct place as possible, together.

About the Author
David H. Levitt practices intellectual property and commercial litigation law in Chicago, and is a pro-Israel activist.
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