The negative Masterpiece effect is likely to add up to a meaningful increase in discrimination experienced by LGBTQ people. Couples of all identities typically contract with about 10 types of vendors in the process of organizing their wedding (e.g., reception venues, wedding planners, bakers, florists, photographers, videographers, bridal/groom salons, jewelers, DJs, and calligraphers). Many inquire with several vendors from each category, often amounting to 15 to 20 encounters. Taking these factors into account, I estimate that about three out of every four wedding-planning LGBTQ couples will experience discrimination they would not otherwise have encountered, had it not been for the Masterpiece decision. Of course, this risk can vary depending on the number of vendors a couple encounters.
Garrett Epps: Justice Kennedy’s Masterpiece ruling
These conclusions have several implications for the debate on religious exemptions. First, they discredit the argument that the effect of religious exemptions is negligible and that exemptions will not increase discrimination. Second, the results complicate the conventional portrait of religious objection as fixed and unyielding to change. Instead, the experiment finds that people’s behavior is influenced by signals from the government; if the government creates exemptions, people who had not discriminated before might start doing so.
Third, the finding that exemptions increase discrimination has legal implications. Under the most demanding legal standard, the government must justify laws that substantially burden religion, by showing that the laws are the least restrictive means to achieve a compelling state interest. If religious exemptions increase discrimination, as I have found, then enforcing antidiscrimination laws without exception may be the best way to promote equality, and perhaps the only way. (I discuss some potential ways forward in a forthcoming article in the Harvard Civil Rights–Civil Liberties Law Review.) Granting exemptions frustrates the government’s goal of ending discrimination. Indeed, Supreme Court justices on the right and on the left have always considered the consequences of exemptions when deciding whether to grant or deny them.
These findings should prompt the Supreme Court to proceed with great care as it sets to deciding the Philadelphia case and any future religion-equality conflicts. Undoubtedly, the Court faces an acute dilemma: Both equality before the law and religious liberty are fundamental constitutional rights, and setting their respective boundaries is no simple task. Yet however the Court decides to resolve the constitutional issues at hand, it must take into account that even a narrow and case-specific decision might have a significant detrimental effect on the broader population that stands to lose from the exemption—and it is the Court’s duty to avoid causing this harm.
*This article previously misstated which law is the federal discrimination employment law. It is Title VII, not Title IX.