Hate Has No Home Here – a better policy?
Monday’s Kenan Graduate Fellows in Ethics seminar featured Amy Sepinwall, Associate Professor of Legal Studies and Business Ethics, the Wharton School at the University of Pennsylvania. Sepinwall began her presentation by narrating her academic journey from undergraduate degrees in philosophy and English, to a bioethics Master’s, then a doctorate in philosophy along with a JD. Considering herself a bit of a “foreign animal” in a business school, Sepinwall has built her career on tackling head-on the ethical complexity involved in collective responsibility and complicity: while her PhD work looked at the nation-state and citizens’ responsibility in reparations for slavery, or in the conduct of war, her later research has focused on the corporation. She briefly touched on her writing about the 2014 Hobby Lobby case, where she asked “When is it reasonable for an employer … to think itself complicit in the conduct of its employees or customers? And when is a reasonable claim of complicity compelling enough to warrant an accommodation?”
In her talk, “Commercial Complicity: Religious Liberty, Discrimination, and the Masterpiece Cakeshop Case,” Sepinwall built on this earlier discussion of the subjective nature of complicity to analyze the Court’s 2018 Masterpiece Cakeshop decision.
While the Supreme Court’s narrow decision to vacate the lower decision against Masterpiece Cakeshop hinged on evidence that Colorado commissioners acted with hostility toward religion, the Court’s ruling did not offer general guidance on whether or when discrimination is ever permissible in the sale of goods or services. Several of the justices’ remarks lay out the No Person Discrimination (NPD) principle. Advancing this principle, Justice Kagan and Justice Ginsburg’s remarks both affirm a business should serve based on inventory rather than on the basis of the customer: if a business sells a product to someone, they must be willing to serve that identical product to any person without discrimination. The assumption of NPD is that if the product is not objectionable to the vendor, then there would be no grounds to refuse its sale to an individual or group the vendor might find abhorrent. Sepinwall argues this principle is flawed.
In laying the groundwork for her alternative “hate has no home here” (HHNHH) model, Sepinwall invented an illuminative example: Two identical, non-descript frosted carrot cakes – each with a note saying it is for the KKK event. Under the NPD principle, if a shop would sell this cake at all, then it must be willing to sell to any party. In her next slide, we find that one hypothetical cake is destined for a Klu Klux Klan event while the other is going to a party hosted by the three Kardashian sisters. Sepinwall is sympathetic to some refusals of service and argues for a better model which would allow doing so: “A better policy is discrimination against a project that has hate as its core.” In this example her alternative model would allow discrimination (refusal of sale) to entities like the Klu Klux Klan, because those “goods or services … would be used in projects promoting animus toward individuals or groups on the basis of their protected characteristics.”
One of the graduate students asked Sepinwall how “hate” would be defined. Her response:
“Hate here is defined consistent with the spirit of anti-discrimination laws. Far from frustrating anti-discrimination laws, vendors who deny their products to hate-based projects advance the state’s policy of thwarting discrimination against protected classes.”
In conclusion, Sepinwall asserts HHNHH honors conscientious businesses:
“HHNHH recognizes the value in having businesses operate conscientiously, even while it places limits on the operation of conscience more defensible than those of the NPD.”
Sepinwall praised the question and answer format of this talk and thanked the attendees for their thoughtful inquiries and observations that continue to help her test and refine her philosophy. As the seminar came to a close only because of time, the students were overheard with many versions of “this was so interesting” and “such a good semester” as they filed out into the hallways of the West Duke Building – bringing “ethics everywhere.”
The Kenan Graduate Fellows in Ethics Program brings together an interdisciplinary cohort of doctoral students whose dissertation research engages in interesting ways with significant normative issues. Fellows participate in regular seminar discussions and present their work in twice-yearly research workshops.