Ever since the Supreme Court ruled in Obergefell v. Hodges that gay people have the right to marry, those upset by this ruling have shifted their strategy from denying the right to limiting its enforcement.
Even if gay people have a right to marry, they argue, people also have the liberty to practice their religion as they wish. Accordingly, they claim, they cannot be forced to “aid or abet” those seeking to marry partners of the same sex.
This argument obviously has some persuasive power, for statutes that claim to protect religious liberty in this sense have recently been proposed in 26 states. Some have even been enacted. And just a few weeks ago, the Supreme Court agreed to hear a case (Masterpiece Cakeshop v. Colorado Civil Rights Commission) that brings this supposed conflict between marriage equality and religious liberty to the fore.
In my view, however, characterizing what is going on here as presenting a conflict between marriage equality and religious liberty is incorrect.
To see why, it will be helpful to get familiar with some of the terms that political philosophers like myself use when we talk about liberties and rights.
Liberties vs. rights
Liberties give us the freedom to act, or to refuse to act, or even just to think in certain ways. But liberties do not always entail the freedom to do these things without any interference. For example, even though everyone has a liberty to open a lawful business, others can still interfere with that business by engaging in lawful competition.
Rights, in contrast, are stronger. They not only give us these freedoms, but they also protect these freedoms from any kind of interference. But not all liberties are protected by rights. When people talk about religious liberty, it is accordingly important to understand what kind of liberty they might mean. For it might not be a liberty that is protected from the kind of interference that is at issue in these cases.
Indeed, there are three very different kinds of liberty that might be at issue here.
Different kinds of liberty
First, there is “negative liberty.” This kind of liberty focuses on whether people are somehow restrained by other human agents (including the government) from doing what they would otherwise have the capacity to do. Laws that prohibit people from defrauding others, or from selling impure foods or unreasonably dangerous drugs or products, and yes, from discriminating against people on the basis of their race, gender, or sexual orientation,…