Impacts on freedom of same-sex marriage in commerce

IVN published a Dissident Politics article on conflicts when same-sex marriage rights arise in commerce. From an objective pint of view, conflicts in the context of commerce are different than conflicts in the context of religion. In either context, burdens on personal freedoms that same-sex marriage opponents typically claim are rarely as severe as rhetoric from media sources opposed to same-sex marriage claim.

The exception is for burden on the economic freedom of a few people who bitterly oppose same-sex marriage and live in one of the 22 states that have laws that outlaw discrimination against people on the basis of their sexual orientation. The article is here.

IVN previously published a related Dissident Politics article that describes the impacts of the June 2015 Obergefell v. Hodges Supreme Court decision in the context of religion. The Obergefell decision extended the fundamental right of marriage to same-sex couples across America. The IVN article is here.

SSM and rights impacts in commerce

Impacts of the exercise of rights associated with same-sex marriage (SSM) in commerce differ from impacts on personal freedoms in the context of religion. Data and assumptions for various groups affected by exercise of SSM rights in the commercial context 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) reside in states that have laws banning discrimination in commerce based on sexual orientation; 56% (0.56) of all people reside in states with no comparable anti-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 =55

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

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

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

Assumptions and legal 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: The analysis does not consider intensity of personal beliefs, e.g., a strong personal belief that absolute economic freedom (laissez faire capitalism) and/or freedom of speech are completely inviolate. Weighing of freedoms in that way introduces subjectivity into the analysis. That makes the analysis less objective and therefore not useful for understanding how conflicts could actually affect various groups of Americans. 

Context: There is no federal law that bans discrimination against LGBT Americans in commerce. About 69% of Americans favor nondiscrimination laws to protect LGBT people against discrimination in workplaces, housing and public accommodation. Despite majority public sentiment, businesses in the 28 states with no law that bans discrimination in commerce based on sexual orientation can legally refuse to serve customers based on their sexual orientation and/or their exercise of marriage-related SSM rights. Those states include about 56% of all Americans, including business owners and employees.

Context: The impact of Obergefell is likely to change for different groups over time. For example, some local or state governments may begin to discriminate against antiSSM businesses, e.g., in airports. However, the legality of such discrimination is an open question due to, e.g., conflicts with first amendment speech rights in commerce. The situation is evolving (here, here, here, here). States are constitutionally allowed to pass legislation that prohibits discrimination against same-sex couples in commerce, but no state is compelled to do so. Assuming that some socially liberal states do pass legislation prohibiting discrimination in commerce, the added economic impact of Obergefell would be negative for opponents, but mostly neutral for supporters. By the same token, socially conservative states that choose to support same-sex commercial discrimination by law would impose negative impacts on SSM supporters, but have little impact positive or negative on SSM opponents.

Context: This analysis focuses on assessing constitutional rights impacts associated with exercise of SSM rights in commerce. Other arguments are ignored, e.g., (i) God supports or opposes same-sex marriage or a non-heterosexual lifestyle or family, (ii) marriage is only for procreation or (iii) American civilization will collapse because the heterosexual family unit is necessary for any civilized society to exist. Those are subjective, often religion-based or religious-like personal faith-based arguments. Science (or objectivity) vs. religion (subjectivity) “debates” rarely or never resolve (here, here, here). People will simply believe whatever they want or what their religion teaches them. Trying to take on such subjective arguments sheds little light in any meaningful way and therefore was not part of this analysis. Despite the complexities, some meaningful conclusions can be drawn. 

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; includes both heterosexual and LGBT people; all unemployed people 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 and any positive or negative impacts are negligible at most; Assumption: impacts of exercise of SSM-related rights in commerce on religious freedom in this and all other groups are assumed to be none (or negligible) because personal religious freedoms are exercised primarily in places of worship and the home or private settings and not in commerce or commercial workplaces

1. proSSM owner - any state                                     none-low econ;
                                                                                    none speech, religion, s.o., SSM                
22 million; includes both heterosexual and LGBT business owners; no appreciable rights impacts in commerce - owners are free to act as they wish and say what they want without liability for illegal discrimination; discrimination (legal or not) from other businesses and customers can occur

2. proSSM employee, pro-SSM bsn - any state        none-low econ, s.o.;
                                                                                    none speech, religion, SSM                             
56 million; includes both heterosexual and LGBT employees; rights impacts in commerce are not from law or the Obergefell decision; negative rights impacts can arise from discrimination, legal or not, from antiSSM businesses, business owners or employees who discriminate against acts or speech in support of SSM or non-heterosexual s.o.; proSSM employees are free to act as they wish without liability for illegal discrimination under the law

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

                                                                                    none religion, SSM                                       

45 million; proSSM employees in antiSSM businesses can face discrimination for their religious or secular acts or speech in support of SSM or non-heterosexual s.o.; on the job discrimination, legal or not, includes potential burdens on speech and s.o. rights of proSSM employees, which can be sufficient to compel an employee to leave their job, a moderate negative impact on economic, speech and s.o.

States with law against discrimination based on sexual orientation

4. religious soft antiSSM owner                                low econ, speech; none religion                      
13 million; Assumption: s.o. and SSM rights do not apply to this or any other heterosexual group; "soft" s.o. and/or SSM opposition results in no overt acts that incur legal liability under anti-s.o. discrimination law and therefore economic and speech impacts are low despite owner's opposition to exercise of SSM-related rights in commerce; speech impact is low because (i) to the extent that services or goods contain speech, e.g., decorations for a same-sex wedding cake or photos of a same-sex wedding, (ii) that kind of speech is not extensive, and (iii) same-sex customers are a small fraction of the clientele provided in normal commerce and can usually be legally avoided, e.g., "I can't be your wedding photographer because I am busy that day" or "we are too busy to make your wedding cake in the days before you need it"; Assumption: some degree of lying to or deceiving customers in many or most commercial transactions is common or routine and not considered a significant burden on any personal freedom - puffery, which can be exaggerated claims of being too busy to serve a customer, is legal in commerce and therefore declining a customer for a legal reason will not incur legal liability for unlawful discrimination against a customer based on their s.o.

5. religious hard antiSSM owner                               moderate-high econ; none-low speech;

                                                                                     none religion                                                   
0.1 million; compared to any other group, this group suffers the highest negative personal freedom impacts from the exercise of SSM-related rights in commerce - the severity of impacts depend in part 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; Assumption: this group size is an estimate based on no published data; hard SSM opponents refuse to serve same-sex couples in SSM-related commercial transactions despite state law banning discrimination on the basis of s.o.; this group is small in part due to economic and social pressures that tend to discourage overt discrimination, e.g., from loss of customers and/or from gaining a reputation as intolerant or a bigot; legal liability arises from discrimination based on s.o., not based on exercise of SSM rights (the acts that incur legal liability are the same, i.e., refusal to provide service or sell goods related to SSM); burdens on speech and religion are none to low because anti-SSM oral speech does not incur liability for discrimination

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

34 million; impacts on economic freedom for employees are lower than owner impacts because employees are free to change jobs without closing, selling or changing their business -- employees can choose to work with employers or businesses that are at least quietly accommodating of their opposition to SSM

7. religious hard antiSSM employee                         low-moderate econ; low speech;
                                                                                    none religion                                      

0.3 million; negative economic impacts on hard antiSSM employees are generally higher than impacts on soft antiSSM employees - hard SSM opponents may need to change jobs to find work with an accommodating business; antiSSM speech does not generate legal liability, but can force an antiSSM employee in a proSSM business to change jobs - the net impact on speech is low at most because antiSSM speech constitutes a tiny fraction (less than 0.01%) of all legal free speech topics

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                none-low econ, speech; none religion               

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

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

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

0.7 million; at most, there are negligible rights burdens on these owners -- customers can refuse to use such businesses and other businesses can subtly discriminate against LGBT business owners, but LGBT owners are free to conduct commerce with customers and businesses that do not discriminate against them or their businesses due to antiSSM sentiment; burden levels for other freedoms are as described for relevant groups described above

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                                                                 none-moderate econ, speech, s.o.;
                                                                                        none SSM, religion                                    

0.8 million; depending on how state laws are enforced, LGBT employees may be subject to on the job discrimination that causes them to change jobs or that causes loss of income or promotion opportunities; Assumption: antiSSM businesses can subtly discriminate against LGBT employees without incurring legal liability; speech burden on LGBT employees can come from a  business work environment that discourages overt 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 discriminate against same-sex couples or SSM-related transactions in commerce based on s.o. or SSM-related rights without affecting any of their own rights - there is no applicable state or federal law that burdens any relevant right; all rights impacts are none or negligible; customers can choose to patronize the business based on its formal or informal antiSSM policies, but customer choices do not affect the owner's rights; rights impacts are none or negligible

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

0.2 million; business owners can subtly or overtly 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 some of these employees may change jobs because of their work situation to work for a business that accomodates the employee's opposition to SSM; rights burdens are not compelled by law or the Obergefell decision, but manifests potential discrimination by proSSM businesses against soft antiSSM employees; evidence of discrimination by proSSM businesses against antiSSM employees is scarce so this form of discrimination is likely very rare

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

0.4 million; burden levels on SSM and religious freedoms are as described for group 17

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 as described for group 17

22. non-religious hard antiSSM employee               none-low 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 as described for group 17

23. any LGBT owner                                                 none-low econ;
                                                                                   none religion, speech, s.o., SSM          
0.9 million; Assumption: all LGBT business owners are proSSM; discrimination and impacts on personal freedoms are not compelled by law or the Obergefell decision; discrimination can come from antiSSM businesses that discriminate against LGBT business owners or their businesses; customers are free to patronize or boycott LGBT businesses based on their opposition to or support for SSM rights - those customer choices do not affect any rights of  LGBT business owners

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

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

25. any LGBT employee, antiSSM bsn                      none-moderate econ, speech, s.o.; 
                                                                                     none religion, SSM                                        
1 million; this situation is not compelled by law or the Obergefell decision; discrimination 
arises from antiSSM businesses or their employees against LGBT employees; on the job discrimination against s.o. or proSSM speech can be sufficient to compel a LGBT employee to change jobs, a moderate impact on economic, speech and s.o. freedoms                                         

* 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)

Explanation of rights impact assessments

All unemployed adults (group 0) are free to do business where they wish without regard to their own or the business' known or unknown proSSM or antiSSM beliefs or policies. For this group, s.o. and SSM rights apply only to unemployed LGBT adults. ProSSM business owners (group 1), are considered to experience no or negligible rights impacts in commerce. Business owners are free to act as they wish and say what they want without liability for illegal discrimination under the law. This ignores discrimination (legal or not) from other businesses and customers that can arise, but that is considered to rarely or never rise to more than a negligible rights burden on proSSM owners. That judgment call, like all the impacts assignments described here, is open to debate.

ProSSM employees working in proSSM businesses in any state (group 2) are considered to experience none to low economic, speech, s.o. and SSM rights impacts in commerce. Those impacts are not from law or the Obergefell decision, but arise from discrimination (legal or not) from other businesses and customers. These employees are free to act as they wish and say what they want without liability for illegal discrimination in any state.

Impacts on economic and speech freedoms for proSSM employees in antiSSM businesses (group 3) can be more pronounced due to on the job discrimination. This form of discrimination arises from personal biases against s.o. or SSM rights (or from biases in favor of s.o. and SSM rights in other groups), and not from any state law or the Obergefell decision. Distinguishing freedom impacts from laws compared to impacts from personal bias is important. Overall freedom impacts in different groups can come almost as much or more from personal animosities between s.o. and SSM rights supporters and opponents, and not from rights impacts from any law or the Obergefell decision. Discrimination against disfavored groups or tribes is a normal human trait that is at least hundreds, if not thousands, of years old. Many or most people will discriminate to some degree against people they disagree with and are in a position to negatively impact, which includes negative impacts on freedoms.

This aspect of human behavior complicates analysis of how exercising SSM rights in commerce affects other rights. In states with laws banning workplace discrimination on the basis of s.o., both human bias and laws together can affect freedoms. That makes it hard or impossible to separate impacts of law from human animosity toward people or groups they disagree with. In states with no applicable law, impacts on freedoms are presumably due more to animosity toward disfavored people than anything else.

An important indirect effect of the Obergefell decision is that people in four groups experience moderate to high negative impacts on economic freedom in states that have laws banning workplace discrimination on the basis of s.o., i.e., “hard” antiSSM business owners and employees (groups 5, 7, 9, 11), who refuse to provide SSM-related services in commerce despite state laws banning discrimination against s.o. in commerce. A very high estimate is that about 540,000 people are in these four groups (assumes 1% of SSM opponents are hard and 99% are “soft” opponents and unwilling to break state laws). Based on the rarity of cases where a business refuses to provide service related to SSM rights, these four groups are probably at least about 100-fold smaller, i.e., about 5,400 Americans or fewer. The impact of Obergefell on these Americans is indirect because hard SSM opponents choose to discriminate against exercise of SSM rights in commerce but that defiance of SSM rights generates potentially crippling legal liability for discriminating on the basis of illegal s.o. discrimination.

The counterparts to groups 5, 7, 9 and 11, i.e., groups 16, 18, 20 and 22 (up to about 0.57 million hard SSM opponents), experience lower levels of negative impacts on their freedoms because there is no state law that generates liability for illegal s.o. discrimination in commerce. The negative impacts for SSM opponents in these groups are based almost exclusively on hypothetical discrimination by proSSM business owners and employees who choose to punish hard SSM opponents. Reports of that kind of discrimination are rare to non-existent in private sector commerce. The concern may be more of an issue for government employees. In other words, Obergefell and the new SSM rights it created, exert essentially no negative freedom impacts on hard SSM opponents in commerce in the 28 states that allow discrimination in commerce against people based on their s.o.