Gay Rights and the Freedom to Buy

As the recent fight over religious liberty legislation shows, corporations are perfectly happy with a "tolerant" capitalism.

A window sticker on a downtown Indianapolis florist shows its objection to Indiana's religious liberty legislation. Michael Conroy / AP

Gay weddings need gay wedding cakes. But if Christian caterers can legally refuse service to gay couples, on the basis that homosexuality is a sin, are the victories of the LGBTQ movement in jeopardy? Might America be headed toward Jim Crow–style discrimination against gay people?

Is the United States public being forced to make a zero-sum choice between religious freedom and civil rights?

These are the anxious questions of analysts struggling to make sense of religious freedom legislation recently taken up in Indiana, Arkansas, and other states around the country. These bills — known as Religious Freedom Restoration Acts (RFRAs) — aim to protect religious actors from policies that burden their religious practices.

Critics maintain that “religious freedom” is merely a front for a right-wing Christian lobby that is attempting to curtail women’s reproductive rights, to penalize pregnant women, and now to deny certain civil rights to LGBTQ people. Proponents insist that the government should not force them to violate their religious beliefs. “A clash of cake and faith,” claims the New York Times, has pitted evangelical Christian confectioners against the gay couples requiring catering services.

Apple CEO Tim Cook is one vocal opponent. “These bills rationalize injustice by pretending to defend something many of us hold dear,” he declared in a March 29 op-ed in the Washington Post. “They go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality.” His company, Cook wrote, has a message for the world: “Apple is open. Open to everyone, regardless of where they come from, what they look like, or who they love.” He then urged supporters to join the “movement” to retain “a 21st century economy” that welcomes the participation of all.

Apple isn’t alone in corporate America. Salesforce has announced a ban on company-funded travel to Indiana. Walmart has affirmed its commitment to “diversity and inclusion,” suggesting that its evangelical “family values” do not extend into customers’ bedrooms. Eli Lilly has declared that it will sell us Prozac, no matter whom we love. The NCAA has reassured us that it protects its gay athletes (even if it won’t pay them).

Such interventions suggest the high stakes of religious freedom laws. And indeed the stakes of these cases are high, when understood — as they should be — in the context of economic and social deregulation that hands private interests increasing control over everyday life. Yet this is not the current valence of the outcry. The problem lies not only in the content of these measures but also in the indignant gestures that have followed them.

Corporate spokespeople have seized RFRA not only as a marketing opportunity, but also as a platform from which to assert free enterprise as the key that unlocks an egalitarian and multicultural social life. The message rings familiar. Sexual freedom needs the free market. The free market needs consumers. Discrimination is bad for business.

Religious Rituals to Corporate Persons

RFRA laws burst back onto the national stage in summer 2014, when the Supreme Court defined discount craft chain Hobby Lobby as a “religious person” that could be exempted from an Affordable Care Act requirement to include certain contraceptives in its employer-based insurance plans.

Company executive David Green and his family, joined by the Hahns of Conestoga Wood Specialties, claimed that this provision compelled them to facilitate abortions. It forced them to sin. Five of nine Supreme Court justices considered this to be a problem. Corporations, it turned out, could exercise religion and petition for religious freedom.

Progressives hit the roof. They decried the dissolution of church-state divisions and predicted the “slippery slope” to similar exemption claims. The uptick in state-based, GOP-backed RFRA measures, such as those in Indiana and Arkansas, seems to prove this point.

But RFRA laws have not always enjoyed such a controversial status. Over twenty years ago the federal version passed with overwhelming support, following a Supreme Court decision that limited the reach of the First Amendment.

In Employment Division v. Smith, the Court upheld an Oregon law that denied unemployment benefits to two men who tested positive for peyote, which they had ingested as part of a ritual of the Native American Church. For some members of the church, the implication of the decision was clear: they were being forced into a zero-sum decision between maintaining job security and access to welfare benefits, and participating in their tradition’s core sacraments.

A broad coalition of grassroots activists, which included much of the religious and secular left, mobilized to undercut this ruling. Congress followed suit. The result was the Religious Freedom Restoration Act of 1993.

The law hinged on the recognition that the diversity of the country exceeded the reach of its laws. Ostensibly neutral policies could burden minority citizens. RFRA created an avenue through which minoritized subjects — such as members of the Native American Church and Muslim prisoners — could claim exemption from such laws.

This is the backdrop to the current commotion. In order to construct itself as a religious person — and to prefigure later RFRA claims by Christian corporations — Hobby Lobby thus had to successfully construct itself as personally analogous to the people that RFRA was written to protect.

Samuel Alito, writing in his Burwell v. Hobby Lobby decision, was happy to oblige:

Congress provided protection for people like the Hahns and the Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends.

In addition to reiterating a Citizens United precedent for defining corporations as people, the decision accomplishes a comparison between Native Americans who use peyote sacramentally and white Christian CEOs of a multi-million dollar craft store.

The juxtaposition suggests that the next frontier in building a free, multicultural society lies in extending legal and religious personhood to corporations. A law enacted to protect people generally made vulnerable by the law has come to protect people generally made powerful by the law.

Corporate Personhood to Consumer Rites

The legislation that Indiana Governor Mike Pence signed into law earlier this month mimics the federal version of 1993 — and the version currently enacted in nineteen other states — in both wording and reach.

There is only one difference. Rather than a multi-million-dollar corporation rising as the poster child of RFRA’s dangers, multi-million-dollar corporations have mobilized against such laws. Corporate spokespeople have described RFRA as the antithesis of free-market principles.

In a statement entitled “A Safe and Diverse Community of Sellers,” Square decried the Indiana law as “wrong, contrary to our core values, and inconsistent with the ideas of fairness and access on which the American marketplace was built.” Gap and Levi Strauss & Co. cited their companies’ “long history of standing up for equal rights” before declaring that RFRA laws “must be stopped.” And Apple CEO Tim Cook added, “America’s business community recognized a long time ago that discrimination, in all its forms, is bad for business.”

Such statements posit a history of social change in which social progress takes place in and through market expansion.

But this corporate chorus is decidedly not petitioning against the corporate personhood part of these laws. Rather, the assertions of political conscience construct the corporation as a person with a moral (if not explicitly “religious”) conscience, who can protest a state law — indeed, who can declare that their ethical commitments call them to act over and against this law.

The difference between a company like Hobby Lobby and a company like Apple is about neither form nor end. It is a difference of content and means. If Hobby Lobby is a right-wing Christian corporation, then Apple is its secular humanist cousin.

The rage against right-wing Christianity has become the implicit occasion to argue, through a performance of righteous indignation, that corporations can exercise agency like people. They can stand up for gay rights. These objections are the same logics at play in the Hobby Lobby case — a corporation stands up for Christian rights — directed toward a different end.

They also extend those logics. If Hobby Lobby helped redefine the corporation as a religious person for the purposes of jurisprudence, then Apple, Square, and Eli Lilly complement this redefinition. They imagine the corporation as the benevolent, omnipresent guardian of social life. They rearticulate the individual person as a corporate subject. In the context of their statements, the fully actualized human agent is also the fully actualized consumer and seller. She is not just free to consume, but free because she consumes and when she consumes.

It follows that the free society is a society in which all people are free to consume. Businesses, which have long recognized this idea, hold the mantle for guarding this freedom.

The Hobby Lobby case, using as its precedent Citizens United, affirmed that the corporation is a person. The current corporate efforts to brand themselves as opponents of RFRA affirm the human person as a consumer. These positions do not undercut each other. They are symbiotic. Together, they articulate the free market as the site of human freedom. An open market is a market in which all can participate; a moral state is a state that opens this market for all corporations.

It is this pronounced incursion of corporations into public life that merits our concern.

LGBTQ activists fretting about RFRA laws need not worry so much about the particulars of their texts. The problem lies elsewhere. The corporate world will remain open. They will accept the currency by which people become citizens of their multicultural and free public space.

To the gay rights movement, corporations say: let them eat cake (gay cake is our specialty).