At the most basic level, commerce is simply a matter of exchange between two parties, both of whom consider the exchange beneficial. It should be uncontroversial to observe that this perceived benefit is often not merely material or financial.
Human beings are not simply material utility-maximizers. We are moral beings with higher-order duties, responsibilities, and commitments in addition to our material needs and concerns.
People spend more for “Fair Trade” products not because they are necessarily better quality but because they believe it reflects their character and does not implicate them in immoral business practices.
Business owners often pay employees more than the market demands out of loyalty and personal concern.
Some people eat at Chick-fil-A because of their Christian principles. Others don’t for similar reasons.
Milton Friedman’s protests notwithstanding, corporations often tout their social responsibility bona fides because they think (often with good reason) that this will help them compete in the marketplace. Even Walmart emphasizes “Community Giving” on its corporate website.
Recently we’ve seen many prominent persons and institutions make public commercial decisions as a result of moral commitments.
Both the ACC and the NCAA chose to pull scheduled events from the state of North Carolina in the wake of the now infamous H.B. 2. And Bruce Springsteen chose to cancel a concert in protest of this same bill.
Many musicians refuse to perform in Israel because of what they deem unjust treatment of Palestinians. In years past the same sort of performance boycotts were levied against South Africa. Indeed, Jesse Jackson’s Rainbow Coalition is famous for threatening boycotts to achieve its racial justice ends.
In each of these cases these decisions have elicited praise and endorsement as well as criticism and counter-protests and boycotts. But no serious commentators or politicians have sought to make such decisions in the service of moral principle illegal. No one has suggested putting Mark Emmert, the President of the NCAA, in prison. Nor does Bruce Springsteen face fines for his stance.
It is important to note that these decisions do cause real financial harm. In fact, they are intended to do so. This is the whole point of boycotts. Despite the harm these decisions do to sports venues, local businesses, state tax coffers and consumers, no one suggests making these decisions illegal.
That such decisions cause financial harm to other parties is not seen as a compelling reason for state action.
And yet, as we see in the cases of bakers, florists, and caterers around the country, some decisions not to engage in commerce are considered beyond the pale and subject to legal sanction. Entrepreneurs who, as matters of religious conviction, have declined to offer their services in the celebration of same-sex unions have been fined and sued by state governments.
Significantly, this is not because these bakers, florists, and caterers are causing financial harm. In contrast, in the cases of the NCAA, the ACC and Bruce Springsteen, the financial harm to North Carolinians is substantial. Moreover, there aren’t substitutes available to North Carolinians who had hoped to attend the ACC Tournament or see the Boss in person.
Significantly, none of the small businesses that have been sued have had a local monopoly; none were unique. There were readily available substitutes in each case. The harm, if any, to those seeking their services is that of inconvenience.
It follows that these legal sanctions can only be explained as, in the best case, irrational excess or, worse, expressions of bias or animus against certain religious beliefs on the part of the state. It should be easy for partisans of all stripes — believers as well as non-believers — to stand against this. If the state can sanction business decisions despite the absence of compelling legal or economic reasons for such sanction, then everyone runs the risk of eventual persecution for acting on conviction.