Data‐Driven Accommodations: Testing Religious Exemptions in Markets With Discrimination

When conflicts between religious wedding vendors and same‐sex couples arise, courts and legislatures face a dilemma. Existing empirical work such as audit studies and field experiments shows that religious exemptions may lead to higher refusal rates for same‐sex couples seeking wedding services. But judges are hesitant to use this empirical evidence to address these conflicts. Doing so appears to balance two harms: the same‐sex couple's harm from being refused service against a religious wedding vendor's harm from being denied a religious accommodation. As a result, judges and lawmakers elude serious engagement with the empirical realities of these conflicts and make diverging assumptions about the underlying effects of religious exemptions on market access. This article proposes a novel method for courts and legislatures to address these conflicts with market‐based evidence. This approach involves two parts: a catchment area analysis and a non‐deceptive survey. The catchment area analysis relies on data from more than 29 million cell phone users to model consumer behavior. The distance customers will travel to a baker or florist proxies for their willingness to pay and thus suggests substitutability with alternative vendors. The catchment analysis here looks at five states (Arkansas, New Mexico, Colorado, Oklahoma, and Utah) with similarly rural population geographies but different mixes of religious freedom and nondiscrimination legal requirements. With this evidence of public accommodation markets, the second part of the method uses a non‐deceptive survey to determine which bakers and florists have religious objections. Across the five states, 206 (85%) bakers and 660 (84%) florists agreed to take the survey which included two questions: (1) whether they made cakes or arranged flowers for weddings and (2) whether they would have any restrictions doing those things for a same‐sex wedding due to a religious objection. After filtering out those who did not provide wedding services, six out of 149 bakeries (4%) and 45 out of 615 florists (7%) voiced objections with suggestive evidence that religious exemptions contributed to higher refusal rates in RFRA regimes (7%–18% for florists) compared to non‐RFRA (3% for florists). Combined with the catchment area evidence, this analysis also shows which refusals would leave same‐sex couples without a readily available alternative. On average, religious exemptions would produce material harm for 2% of consumers, but legal regimes that allow more localized lawmaking on these issues tend to see 1–2 percentage points less material harm. In sum, this approach shows how judges and lawmakers can use market‐based evidence of material harm and thereby avoid balancing dignitary interests. Moreover, this study further indicates government—especially local governments—can accommodate religious objectors while administering public accommodation protections for same‐sex couples and countering stigma.