Same-sex marriage and impacts on freedom of religion

IVN published a Dissident Politics article that describes the impacts of the June 2015 Obergefell v. Hodges Supreme Court decision that extended the fundamental right of marriage to same-sex couples across America. Freedom of religion and the exercise of same-sex marriage (SSM) rights sometimes conflict and can affect different groups of Americans in different ways. The IVN article is here.

Data and assumptions for various groups affected by exercise of SSM rights in the religious and commercial contexts are shown below.

Estimates of the size of major American groups that could be affected by the exercise of SSM rights in the economic or commercial context are based on the following data and assumptions:

1. About 321 million total U.S. residents, consisting of about 310 million citizens (Americans) and about 11 million non-citizens (3.5% of all residents)

2. About 77% of Americans are adults, about 239 million, and about 23% are under 18

3. About 3.8% of adult Americans, about 9 million, self-identify as LGBT (assume that nearly all LGBT support legalized SSM (> 98% assumed)), and about 230 million are heterosexual adults

4. About 77% of adult Americans, about 184 million, identify with a religious faith or group, while about 55 million identify with no religious faith or group

5. About 55% of adult Americans, about 135 million, favor legalized SSM, while 45% or about 104 million oppose SSM (this assumes that all of the 6% of Americans who have no opinion are in opposition to SSM but refuse to say so in polls - 39% of adult Americans oppose SSM based on recent data)

6. About 27.9 million small businesses and about 18,500 businesses with > 500 employees; about 27.9 million total businesses (27.9 + 0.0185); 79% have 1 employee, about 22.0 million single owners (27.9 x 0.79); about 40 million total business owners (22.0 single owners + 17.6 million co-owners (27.9 x .21 = 5.86 million businesses with more than 1 owner (assumes an average of 3 owners/business = 17.6 million (5.86 x 3)); ignore shareholders as owners of publicly traded companies

7. About 59% of adult Americans (and here) about 141 million (239 x 0.59), are in America’s work force (ignores military and workers 16 or 17 years old), which includes 40 million business owners and 101 million employees; 55% pro-SSM (76 million; 141 x 0.55; 22 proSSM million owners (40 x .55) & 56 million proSSM employees (101 x .55)), 45% anti-SSM (63 million; 141 x 0.45; 18 million antiSSM owners (40 x .45) & 45 million antiSSM employees (101 x .45)), 77% religious (109 million; 141 x 0.77), 23% non-religious (32 million; 141 x 0.23), 96.2% heterosexual (136 million; 141 x 0.962), 3.8% LGBT (5 million; 141 x 0.038);

8. About 41% of adult Americans, about 98 million (239 x 0.41), are not in America’s work force

9. About 1% of owner and employee SSM opponents, about 1 million (141 x 0.01), are "hard" opponents who insist on discriminating against same-sex couples in marriage-related commerce; the hard opponent estimate is probably at least 100-fold too high; the 1% estimate is based on (i) no data and (ii) rare anecdotal reports of hard opposition; 99% of employer and employee SSM opponents, about 1 million are "soft" opponents who are unwilling to overtly discriminate in commerce, about 140 million (141 x 0.99)

10. About 142 million people reside in the 22 states and D.C. that have laws banning discrimination in commerce based on sexual orientation (not based on discrimination against SSM ) (HI 1.4 million; WA 7.0; OR 4.0; CA 38.8; NV 2.8; UT 2.9; CO 5.4; NM 2.1; MN 5.5; WI 5.8; IA 3.1; IL 12.8; NY 19.7; VT 0.6; NH 1.3; ME 1.3; MA 6.7; RI 1.1; CT 3.6; NJ 8.9; DE 0.9; MD 5.9; DC 0.7); 44% (0.44) of all U.S. residents (142 ÷ 321); 56% (0.56) of all people reside in states with no antiSSM discrimination law; 

Base numbers:

239 million adults

9 million LGBT: 239 x .038 (assumes 0.98 support SSM = 8.8)

230 million heterosexual: 96.2% hetero: 239 x .962 = 230

184 million religious adults: 77%: 239 x .77 = 184.0

55 million not religious: 23%: 239 x .23 =

135 million favor SSM (55%):  9 (LGBT) + (230 x .55)(hetero)

104 million oppose SSM (45%): 0 (LGBT) + (230 x .45)(hetero)

Impacts of exercise of SSM rights in the context of religion

Groups in tables (numbers are in millions):
1. Adult LGBT Americans = 239 x .038 = 9

2. Religious-LGBT-proSSM religion = 4

3. Relig-LGBT-antiSSM religion = 3

4. Non-religious-LGBT = 2 (Religious-LGBT-proSSM = 239 x .038 x .77 x .98 = 7)

5-6. Religious-hetero-proSSM = 230 x .77 x .55 = 97 (proSSM religious group = 48; antiSSM = 49)

7. Atheist-hetero-proSSM = 239 x .23 x .55 = 29

8-9. Religious-hetero-antiSSM = 230 x .77 x .45 = 80 (proSSM religious group = 40; antiSSM = 40)

10. Atheist-hetero-antiSSM = 239 x .23 x .45 = 24

Groups 1, 5-7: proSSM = 9 + 97 + 29 = 136

Groups 8-10   antiSSM = 40 + 40 +25 = 105

239 million adults

9 million LGBT - 3.8% - 239 x .038 (0.98 support SSM = 8.8)

230 million heterosexual adults - 96.2% - 239 x .962

184 million religious adults - 77% - 239 x .77

55 million not religious - 23% - 239 x .23

135 million favor SSM - 55% - 9 (LGBT) + (230 x .55)(hetero) = 135.5 

104 million oppose SSM - 45% - 0 (LGBT) + (230 x .45)(hetero) = 103.5

230 million heterosexual adults: groups 5-10 = 97 + 29 + 80 + 24 = 230

239 million non-religious adults: groups 4, 7, 10 = 2 + 29 + 24 = 55
proSSM adults : 9 (LGBT) + 97 (religious) + 29 (non-religious) = 135

antiSSM: 0 (LGBT) + 80 (religious) + 24 (non-religious) = 104

Calc - base = 230 million: Hetero: 5-10 = 97 + 29 + 80 + 24 = 230

Calc - base = 239 million: non-religious: 4, 7, 10 = 2 + 29 + 24 = 55

Calc - base = total proSSM: 9 + 97 + 29 = 135

Calc - base = total antiSSM: 80 + 24 = 104

Impacts on SSM supporter groups in religious freedom context

Supporter group	Group size	Context	Rights impacts
1  LGBT	9 million	new SSM rights	high, positive for SSM
2  Religious LGBT	4 million*	religious group supports SSM	none for religious rights
3  Religious LGBT	3 million*	religious group opposes SSM	low, negative for SSM & religious rights
4  Non-religious LGBT	2 million	religious rights	none
5  Religious heterosexual	48 million**	religious group supports SSM	none
6  Religious heterosexual	49 million**	religious group opposes SSM	low, negative for religious rights
7  Non-religious heterosexual	29 million	religious and SSM rights	none

* Rough estimate of distribution between religious groups (no data); assumes religious LGBT tend to affiliate with religious groups that support SSM

** Based on 230 million adult heterosexual Americans, 55% of whom favor legalized SSM (126.5 million), 77% of whom are religious (97.4 million), and assumes the group is about equally split between affiliation with religious groups that support SSM and groups that oppose SSM

Impacts on SSM opponent groups in religious freedom context

Opponent group	Group size	Context	Rights impacts
8  Religious heterosexual	40 million*	religious group supports SSM	low, negative for religious rights
9  Religious heterosexual	40 million*	religious group opposes SSM	none
10  Non-religious heterosexual	24 million	religious and SSM rights	none

* Based on 230 million adult heterosexual Americans, 45% of whom oppose legalized SSM (103.5 million), 77% of whom are religious (80 million), and assumes the group is equally split between affiliation with religious groups that support and groups that oppose SSM

Impacts of exercise of SSM rights in the commercial or economic context

Assumption 1: Overt acts that generate legal liability for discrimination against sexual orientation in commerce, e.g., refusing marriage-related service to same-sex couples, are the same as the acts of discrimination against exercise of SSM rights in commerce. Because of that the law does not distinguish liability for discrimination based on exercise of religious or free speech rights from discrimination against sexual orientation and/or exercise of SSM rights.
Assumption 2: There is no, or at worst, a negligible burden on exercise of SSM rights in the commercial context because (i) very few same-sex couples are refused same-sex marriage-related commercial service (no burden), or (ii) for the few who are refused service, they can easily find another vendor who will provide service (negligible burden).
Assumption 3: Extension of marriage rights to same-sex couples has no impact on SSM rights in the commercial context or, at most, a negligible positive right or freedom impact because of the small numbers of people affected and the availability of accommodating vendors.


Group sizes (all groups are heterosexual unless stated otherwise):
0. unemployed adults - any state = 239 x .41 = 98 million
1. heterosexual or LGBT proSSM business owner - any state = 40 x .55 = 22 million
2. heterosexual or LGBT proSSM employee, pro-SSM business - any state = 101 x .55 = 56 million
3. heterosexual or LGBT proSSM employee, anti-SSM business - any state = 101 x .45 = 45 million

States with law that bans discrimination in commerce based on sexual orientation (44% of all owners and employees):
4. religious soft antiSSM business owner = 40 x .77 x .99 x .44 = 13.4 million
5. religious hard antiSSM business owner = 40 x .77 x .01 x .44 = 0.1 million
6. religious soft antiSSM employee = 101 x .77 x .99 x .44 = 34 million
7. religious hard antiSSM employee = 101 x .77 x .01 x .44 = 0.3 million
8. non-religious soft antiSSM business owner = 40 x .23 x .99 x .44 = 4 million
9. non-religious hard antiSSM business owner = 40 x .23 x .01 x .44 = 0.04 million
10. non-religious soft antiSSM employee = 101 x .23 x .99 x .44 = 10.1 million
11. non-religious hard antiSSM employee = 101 x .23 x .01 x .44 = 0.1 million
12. religious and non-religious LGBT owner = 40 x .44 x .038 = 0.7 million
13. religious and non-religious LGBT employee, proSSM business = 101 x .44 x .038 x .55 =
.93 million
14. religious and non-religious LGBT employee, antiSSM business = 101 x .44 x .038 x .45 =
.76 million

States with no law that bans discrimination in commerce based on sexual orientation; businesses in these states can legally refuse to serve customers based on their sexual orientation, including refusal to serve same-sex couples in SSM-related commercial transactions (56% of all owners and employees):
15. religious soft antiSSM business owner = 40 x .77 x .99 x .56 = 17.1 million
16. religious hard antiSSM business owner = 40 x .77 x .01 x .56 = 0.17 million
17. religious soft antiSSM employee = 101 x .77 x .99 x .56 = 43.1 million
18. religious hard antiSSM employee = 101 x .77 x .01 x .56 = 0.44 million
19. non-religious soft antiSSM business owner = 40 x .23 x .99 x .56 = 5.1 million
20. non-religious hard antiSSM business owner = 40 x .23 x .01 x .56 = 0.05 million
21. non-religious soft antiSSM employee = 101 x .23 x .99 x .56 = 12.9 million
22. non-religious hard antiSSM employee = 101 x .23 x .01 x .56 = 0.13 million
23. religious and non-religious LGBT owner = 40 x .56 x .038 = 0.85 million
24. religious and non-religious LGBT employee, proSSM business = 101 x .56 x .038 x .55 =
1.2 million
25. religious and non-religious LGBT employee, antiSSM business = 101 x .56 x .038 x .45 =
0.97 million 

Red text = negative freedom or rights impact; black text = no or negligible rights impact

Groups are heterosexual unless otherwise noted as mixed or LGBT

Group*                                                                          Personal freedom impacts                        

0.  all unemployed adults - any state                              none econ, speech, religion, s.o., SSM       
98 million; all unemployed are free to do business where they wish without regard to their own or the business' proSSM or antiSSM beliefs or policies; impacts on s.o. and SSM rights apply only to unemployed LGBT adults 

1. proSSM** owner - any state                                     none econ, speech, religion, s.o., SSM        

22 million; no rights impacts in commerce - owners are free to act as they wish and say what they want without liability for illegal discrimination; ignores discrimination (legal or not) from other businesses and customers

2. proSSM employee, pro-SSM bsn - any state            none-low econ, speech, s.o., SSM;
                                                                                       none religion                                                 

56 million; econ, speech, s.o., SSM rights impacts in commerce are not from law or the Obergefell decision - employees are free to act as they wish without liability for illegal discrimination; rights impacts arise from discrimination (legal or not) from other businesses and customers; religious practice is largely disconnected from commerce, so impacts are considered to be none or negligible at most

3. proSSM employee, anti-SSM bsn - any state           none-moderate econ, speech; 

                                                                                      none-low s.o., SSM; none religion                  

45 million; proSSM employees in antiSSM businesses can face discrimination for religious or secular acts or speech in support of SSM or can face on the job discrimination, which includes potential low burdens on s.o. and SSM rights of LGBT employees; discrimination (legal or not) from other businesses and customers can give rise to burdens on personal exercise of affected freedoms

States with law against discrimination based on sexual orientation

4. religious soft antiSSM owner                                 low econ, speech, religion                              

13 million; impacts are low because anti-s.o. discrimination law imposes no penalty despite owner's opposition to SSM; speech impact is low because to the extent that services or goods contain speech, e.g., wedding cake decorations on a same-sex wedding cake or photos of a same-sex wedding, the speech is not extensive and only rarely provided in normal commerce; impact on religion is low because to the extent that providing services or goods in commerce contradicts religious belief the frequency of those transactions is low and most or all such transactions are easily avoided, e.g., "I can't be your wedding photographer because I am busy that day"; some degree of lying to or deceiving customers in many or most commercial transactions is routine and not considered a significant burden on any personal freedom

5. religious hard antiSSM owner . . . . . . . . . . . . . . . . moderate-high econ; low speech, religion    

0.1 million; depending on how state law is enforced, fines or restrictions on business can be great enough to bankrupt a business that overtly discriminates against same-sex couples who exercise SSM rights in commerce -- liability is for discrimination based on s.o., not based on exercise of SSM rights -- the acts are the same, i.e., refusal to provide service or sell goods; burdens on speech and religion are low for the reasons described for group 4  

6. religious soft antiSSM employee . . . . . . . . . . . . .  low-moderate econ; low speech, religion     

34 million; impacts on economic freedom for employees are lower than owner impacts because employees are free to change jobs without loss of a business -- employees can choose to work with employers or businesses that are at least quietly (maybe not overtly) accommodating to their opposition to SSM; burdens on speech and religion are low for the reasons described for group 4

7. religious hard antiSSM employee . . . . . . . . . . . . . low-moderate econ; low speech, religion     

0.3 million; burdens on economic freedom and speech and religion are low for the reasons described for groups 4 and 6

8. non-religious soft antiSSM owner  . . . . . . . . . . . . low econ, speech; none religion                    

4 million; burdens on economic freedom and speech are low for the reasons described for group 4; there is no burden on freedom of religion because these people are not religious and have no religious freedom to burden 

9. non-religious hard antiSSM owner  . . . . . . . . . . . moderate-high econ; low speech; none religion

0.04 million; economic freedom burden is as described for group 5; speech burden is as described for group 4; freedom of religion burden is as for group 8

10. non-religious soft antiSSM employee . . . . . . . . low-moderate econ; low speech; none religion

10 million; burden levels are as described for the relevant groups described above
 
11. non-religious hard antiSSM employee . . . . . . . . moderate-high econ; low speech; none religion

0.1 million; burden levels are as described for the relevant groups described above

12. religious and non-religious LGBT owner . . . . . none econ, speech, religion, s.o., SSM                    

0.7 million; there are no or negligible rights burdens on these owners -- customers can refuse to use such businesses and other businesses can subtly discriminate against LGBT business owners, but those owners are free to conduct commerce with other businesses that do not discriminate

13. religious and non-religious LGBT employee

pro-SSM bsn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . none econ, speech, religion, s.o., SSM                    
0.9 million; burden levels are as described for group 12

14. religious and non-religious LGBT employee
anti-SSM bsn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . low-moderate econ, speech, s.o.;
                                                                                        none SSM, religion                                            

0.8 million; depending on how state laws are enforced, LGBT employees may be subject to discrimination that causes them to change jobs or that causes loss of income or promotion opportunities; speech burden can come from business work environment that discourages support for SSM rights in commerce or on the job; burden levels on SSM and religious freedoms are as described for group 12

States with no law against sexual orientation discrimination

15. religious soft antiSSM owner . . . . . . . . . . . . . . none econ, speech, religion                         

17 million; business owners can quietly discriminate against same-sex couples in commerce based on s.o. or SSM rights without affecting any of their own rights because there is no applicable state or federal law that burdens any relevant right -- rights impacts are none or negligible

16. religious hard antiSSM owner . . . . . . . . . . . . . . none econ, speech, religion                       

0.2 million; business owners can openly discriminate against same-sex couples in commerce based on s.o. or SSM rights without affecting any of their own rights because because there is no applicable state or federal law that burdens any relevant right; such businesses may lose some customers, while attracting new ones, but that has no impact on owner's exercise of personal freedoms -- rights impacts are none or negligible

17. religious soft antiSSM employee . . . . . . . . . . . none-low econ, speech, religion                  

43 million; religious antiSSM employees working for proSSM businesses can face discrimination from proSSM owners and a few such employees may change jobs because of their work situation -- this situation is not compelled by law or the Obergefell decision, but manifests discrimination by proSSM businesses against soft antiSSM employees

18. religious hard antiSSM employee . . . . . . . . . . . none-moderate econ, speech, religion          

0.4 million; religious antiSSM employees working for proSSM businesses can face discrimination from proSSM owners and many of such employees may change jobs because of their work situation -- this situation is not compelled by law or the Obergefell decision, but manifests discrimination by proSSM businesses against hard antiSSM employees

19. non-religious soft antiSSM owner . . . . . . . . . . none econ, speech religion                               

5 million; burden levels are as described for group 15

20. non-religious hard antiSSM owner . . . . . . . . . . none econ, speech, religion                               

0.05 million; burden levels are as described for group 16

21. non-religious soft antiSSM employee . . . . . . . none-low econ, speech; none religion                   
13 million; this situation is not compelled by law or the Obergefell decision, but manifests discrimination by proSSM businesses against soft antiSSM employees 

22. non-religious hard antiSSM employee . . . . . . . none-moderate econ, speech; none religion

0.1 million; this situation is not compelled by law or the Obergefell decision, but manifests discrimination by proSSM businesses against hard antiSSM employees

23. any LGBT owner . . . . . . . . . . . . . . . . . . . . . . . . none-low econ, s.o., SSM;
                                                                                   none religion, speech                                  

0.9 million; this situation is not compelled by law or the Obergefell decision, but manifests discrimination by antiSSM businesses against LGBT business owners or businesses

24. any LGBT employee, proSSM bsn . . . . . . . . . none econ, speech, religion, s.o., SSM            

1 million; proSSM businesses are assumed to not discriminate against LGBT workers on the basis of their exercise of SSM rights or their s.o. status; LGBT employees are assumed to be proSSM

25. any LGBT employee, antiSSM bsn . . . . . . . . . low-moderate econ, speech; 
                                                                                   none religion, SSM                                      
1 million; -- this situation is not compelled by law or the Obergefell decision, but manifests discrimination by antiSSM businesses against LGBT employees
                                                                                                                                                         

* All groups except LGBT are heterosexual; heterosexuals experience no impacts on exercise of personal SSM or s.o. rights

** Abbreviations:

proSSM = SSM supporter; antiSSM = SSM opponent

owner = business owner; bsn - business or company; econ - freedom of economic activity

s.o. = rights related to sexual orientation

soft = unwilling to break law, change or abandon business or move to another state, e.g., a state with no anti-discrimination law, due to opposition to SSM

hard = willing to overtly or subtly break law (discriminate against LGBT employees, refuse to hire LGBT employees or refuse to do business with same-sex couples relative to SSM rights), change or abandon business or move to another state due to opposition to SSM)