Gay rights, religion and what’s wrong with principles
The Equality Act, which would protect LGBT people from discrimination in employment, housing and public accommodations, has such broad public support that it ought to be able to sail through Congress. But it won’t, because both sides are dug into positions that make passage impossible.
Conservative Christians are afraid that any nondiscrimination rule will brand them as the moral equivalent of racists. Many gay rights supporters believe in that equivalence, and so regard any compromise that would ease those fears as morally odious.
Congressional Democrats have united behind the Equality Act, which has extremely narrow exceptions for religious institutions. It passed the House by a huge 236-173 majority in May 2019, with no Democrats opposed and eight Republicans in favor. That is as far as it will get. Unless the Senate filibuster is abolished, it won’t become law even if the Democrats win the Senate and the presidency in November.
That is bad news for LGBT people, who now are protected from discrimination in only 21 states and the District of Columbia. (The Supreme Court’s decision in Bostock v. Clayton County protects them only from employment discrimination, not any other kind.)
An obvious solution would be to moderate the bill in order to accommodate the religious dissenters. That has been proposed in the Fairness for All Act, a compromise that offers the broad protections of the Equality Act with significant religious exemptions. The bill’s accommodations are narrowly targeted, for instance allowing religious organizations to employ only people who fully adhere to their religious beliefs and standards. It has been denounced by both sides.
Opposition from the left rests at bottom on the racism analogy: If racists don’t get religious accommodation, why should heterosexists? So negotiation can’t even begin.
The racism analogy is most commonly used to claim that the religious objectors are lying about their motives. A majority of the U. S. Commission on Civil Rights spoke for many when it declared that proposals for religious accommodation “represent an orchestrated, nationwide effort by extremists to promote bigotry, cloaked in the mantle of ‘religious freedom,’” and “are pretextual attempts to justify naked animus against lesbian, gay, bisexual, and transgender people.”
It’s not true. There is obviously a lot of hatred against gay people out there, sometimes manifesting in violence. But many decent people honestly embrace the sexual ethics that their religions have taught for centuries. I’ve been a gay rights advocate for over 30 years, and I’ve argued with many of them. I can report that they are otherwise admirable people who happen to hold wrong and destructive beliefs. You might regard those beliefs as so daffy that no one could really believe that stuff. But that’s the problem of religious diversity. Nothing is more manifestly implausible than other people’s religions.
The better analogy is with the anti-vaxxers, who foolishly think that they are protecting their children by refusing to vaccinate them. They are a public health menace. But it wouldn’t advance understanding to claim that their ignorant notions are an insincere pretext for hurting children.
It is a truth universally acknowledged that there could not and should not have been religious exemptions from the Civil Rights Act of 1964. But it isn’t 1964 anymore.
America has a long tradition of accommodating religious dissenters. As a general matter, the law should not strive to stamp out any subculture and make its members outcasts. Racism has been so pervasive and destructive that these two principles are appropriately overridden. The civil rights struggle demanded coercive cultural reconstruction, especially but not only in the states of the former Confederacy. That’s not our situation with respect to antigay discrimination, where the needed cultural changes are already happening.
The question is not simply whether people are acting on the basis of repugnant ideas. There are a lot of repugnant ideas around. It is whether there should be cultural war. That question, like any decision to go to war, depends on prudential assessment of likely consequences. In the case of race, there has been progress, but the war isn’t over. Zero tolerance remains necessary. In the case of sexual orientation, war is unnecessary and unlikely to improve matters.
Both sides think this disagreement concerns a matter of deep principle. Religious liberty and nondiscrimination are each understood as moral absolutes.
People tend to think about this issue the way lawyers are trained to think about conflict resolution: By devising abstract principles that should cover all future cases (and which incidentally entail that their side wins). But sometimes the right thing to do is not to follow a principle but to accurately discern the interests at stake and cobble together an approach that gives some weight to each of those interests.
Ethics is not only about principles. There is a tradition in moral philosophy, going back to Aristotle, that holds that a good person does not necessarily rely on any abstract ideal, but rather makes sound judgments about the right thing to do in particular situations. Sometimes principles are overbroad generalizations from experience that distract us from the moral imperatives of the situation at hand.
The principles at issue here seem irreconcilable. But they are themselves parasitic on interests. The way to think clearly about the conflict is to look past the principles to the underlying interests. Discrimination harms its victims’ urgent interest in equal treatment in public spaces. Religious liberty protects what many people regard as their deepest concerns. The legal rights in question are tools for protecting those interests.
In this age of political polarization, America urgently needs a narrative in which there is a legitimate place for everyone. Compromising on this issue could be a step in that direction.
I’ve worked very hard to create a regime in which it’s safe to be gay. I’d also like that regime to be one that’s safe for religious dissenters — even the ones I strongly disagree with.
Arguments about the gay rights/religious liberty conflict often talk past each other, because they often focus on one of the interests in question and ignore the other. The principles are in unresolvable tension. The interests are not. There are ways to ensure that all the relevant interests are accommodated. This may require some modification of the principles.
Unless we do that, we can’t accomplish what most of us want, such as anti-discrimination protection for gay people. What ultimately matters is not the principles but the people. We only care about the principles because we care about the people.
Andrew Koppelman is a professor of law at Northwestern University and author of the recently published “Gay Rights vs. Religious Liberty? The Unnecessary Conflict.” Follow him on Twitter @AndrewKoppelman.
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