Part I of this blog post addressed a recent federal appeals court decision that turned on the distinction between “status” and “act”. Now, Part II will discuss the larger significance of this distinction in other areas of the law.
In Manning v. Caldwell (4th Cir. 2018), the U.S. Court of Appeals upheld a law making it a crime for “habitual drunkards” to possess alcohol. The court’s decision turned on the crucial difference between status – being an alcoholic – and action – possessing or trying to possess alcohol. Is the act/status distinction a concern in other areas of the law? Definitely.
In the abortion context, pro-life activists fought a multi-year battle over the same key distinction. Abortion providers claimed that sit-ins to stop abortion were a manifestation of “animus” against women – i.e., a form of sex discrimination – which triggered the federal civil rights conspiracy law (42 U.S.C. §1985(3)). Their theory was that because only women could get abortions, opposition to abortion equaled opposition to women. But the Supreme Court, in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) [disclosure: I was co-counsel for the activists], noted that there are “common and respectable reasons” for opposing abortion (such as defending the lives of unborn children) that had nothing to do with opinions about women as such. Pro-lifers opposed the act – killing human beings before birth – not the status (gender) of those seeking abortion.
Most recently, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), the Supreme Court reviewed a charge of discrimination against a baker who said that he conscientiously objected to being complicit – artistically – in a same-sex marriage. The state commission equated opposition to the act of same-sex marriage with opposition to – and thus discrimination based on – the status of being homosexual.
Indeed, the state commission could draw support from what the Supreme Court itself had said, in Christian Legal Society v. Martinez, 561 U.S. 661, 689 (2010), namely, that “[o]ur decisions have declined to distinguish between status and conduct in th[e] context [of homosexuality].” But the baker insisted that he gladly served customers of all stripes, and simply objected to being forced to use his artistry for certain messages – i.e., he distinguished between the who (status) and the what (act).
While the Supreme Court did not definitively resolve the many issues in the case, the Masterpiece majority clearly took note of the difference between status and act in the baker’s position and even in the state commission’s behavior. 138 S. Ct. at 1723 (noting difference between refusing certain messages versus refusing all business to certain customers), 1728 (referencing implications of the distinction), 1730 (noting that in the context of a different viewpoint, the state commission itself viewed objection to a message as innocent and not status-based). This distinction may prove decisive in future disputes between merchants and customers seeking goods or services designed for same-sex weddings.
Beyond the hot-button topics of abortion and same-sex marriage, the status/act distinction can also play an important role in sorting out disputes in any context where there is a close association between certain acts and certain groups. Is a restaurant’s declining to serve halal or kosher meals discrimination against Muslims or Jews, respectively? Or is it simply a legitimately debatable business decision, like declining to offer gluten-free options? Can a professional speechwriter decline to write speeches that promote an objectionable agenda?
What if the refusal breaks along partisan political lines? Can a fashion designer refuse to serve a public figure associated with a cause the designer finds objectionable? Can a restaurant refuse to serve a prominent member of a presidential administration with which the restaurant owner vehemently disagrees?
In these and countless other cases, marking the distinction between status and act – the who and the what – can be instrumental not just as a legal analytical tool, but as a means of preserving a vital line between government power rightly to remedy invidious discrimination, on the one hand, and personal freedom to pursue one’s own principles and vision, on the other. And that is a very important line to preserve.
Walter Weber is a contributor at the Committee for Justice (CFJ) and is Senior Counsel for the American Center for Law and Justice (ACLJ) in Washington, D.C. Please note that views expressed here do not necessarily reflect the views of Walter's employer.