Balkinization  

Monday, September 10, 2007

The unnecessary conflict between gay rights and religion

Andrew Koppelman


I spent Saturday as a speaker on two panels at the Lavender Law conference, the annual meeting of the National Lesbian and Gay Law Foundation. For years it has been the most important meeting of attorneys who practice in gay rights areas. I was asked to speak on the topic of religious exemptions from antidiscrimination laws, a topic on which I’ve written in the past. My remarks follow:

One of the most odious things about the old regime of institutionalized heterosexism was the way it excluded gay people from any legitimate place in the world. It treated them, in Richard Mohr’s pungent phrase, like a fart in an elevator. A central claim of the gay rights movement, from the beginning, has been that gay people have the right to exist in society, as valued, respected citizens. And a central target has been efforts by the law to eradicate them, through invasive measures such as sodomy laws.

The religious right today, when it argues against gay rights laws, often makes a similar claim: that these laws deny conservative Christians the right to exist unmolested by the law. They claim that their attacks on gay rights laws are defensive. Defensive claims are more rhetorically effective than offensive claims. That’s why one so often encounters the preposterous claim that same-sex marriage violates religious liberty, because conservative churches will be required to celebrate them. The claim is preposterous because the state has never required the Catholic church to celebrate remarriages after divorce, or Orthodox rabbis to celebrate marriages between Jews and non-Jews.

There are, however, some contexts in which the claim of the Christian right really is defensive. Most notably, laws barring discrimination are inconsistent with religious norms that demand discrimination. These laws raise the question whether there is any legitimate place in society for conservative Christians.

I want to argue that, if we are not going to recapitulate the same injustices that brought the gay rights movement into existence, the Christian right’s defensive claims should sometimes be honored, for reasons of both principle and expediency. One reason why the gay rights movement has been winning is that we have all the good stories. We can point to actual families who are hurt by the absence of legal recognition. They only have abstractions like “the family” and “the defense of marriage,” the meaning of which becomes increasingly obscure as it is subjected to close analysis. We should not be eager to provide our opponents with horror stories.

The most obvious way of avoiding such stories is to rely on the familiar practice of accommodating religious objections to generally applicable laws. Some are uncomfortable with the practice of singling out religion in this way, but the narrowness of the religious exemption is precisely why it is so clear that we can afford it. If a broader set of people were able to bring exemption claims, then we would have a less tractable conflict. In the contemporary United States, the claims for a conscientious right to discriminate will almost always be religious claims. Only a small minority of discriminators will be able to defend themselves on this basis. Most employers do not want to announce that they discriminate on the basis of sexual orientation, and so this defense is unavailable to them.

Whenever a religious exemption from a gay rights law is sought, the central question we should ask is, what specific person will be hurt by honoring the claim? If the person seeking the exemption is trying to hurt someone, then we ought to deny the claim. But if the stakes are purely symbolic, or if the hurt is an intangible one, then the exemption should be granted. The reason to draw the line here is that if symbolic hurt is included, then the claim of antidiscrimination law is likely to be exorbitant, with conservative Christians avoiding liability only if they avoid contact with any gay person, ever. That is too much to ask – again, as a matter of both principle and expediency.

This formula has obvious difficulties. It is not uncontroversial what counts as harm, as critics of John Stuart Mill have been insisting for more than a century. So there is room for judgment in application. My main concern here is to argue for the basic approach. But I’ll end by spelling out a couple of applications.

Christian societies on campus shouldn’t be denied recognition on grounds of discrimination. Here there is nothing but symbolism involved. Gay people who are out of the closet have no interest in joining such groups.

Similarly with the accreditation of discriminatory educational institutions, such as Regent University Law School. I can think of nothing more destructive and discrediting to the cause of gay rights than a public campaign to revoke Regent’s accreditation because of its religious position. Regent would obviously scream that gay rights extremists are trying to destroy it. Regent would be right.

The Christian right’s hostility to gay rights is indisputable. But their claims should not necessarily be construed, as this panel’s title implies, as efforts “to unravel the weave of nondiscrimination policies.” The title implies that gay rights advocates shouldn’t budge an inch, or we will lose everything. The opposite is true. A retreat on this front will make our position stronger. Principle and expediency converge here. The fortifications here are porous because this territory is not worth defending.


Comments:

I don't buy it. One of the successes of the Civil Rights movement is that while there were lots of people claiming their religious beliefs required and justified their racial bigotry in the 1950's, there are very few now. Only a handful of sects still prohibit interracial marriage, and fewer still require racial segregation. I would argue that one reason for this is that we took a pretty hard line against people who used their religious beliefs to justify bigotry against blacks.

I am not saying there should be no situation where a religious claim of exemption from a gay rights law should be recognized (I wouldn't say that about blacks either, and I would also note that a no exemptions law is unconstitutional), but I think there should be a very high bar before one will be recognized.

There is a coercive element in civil rights laws, but it's a good coercion. Society made bigotry disreputable and stigmatized. I want people who continue to espouse homophobia (including those who use their religion as a cover for their hate) to be held in disrepute and stigmatized as well.
 

Thank you for agreeing that said territory is not worth defending. Carry on.
 

Well said. I support your analysis generally. In most Australian jurisdictions discrimination on the basis of sexual orientation is unlawful, but there are exemptions for certain activities undertaken by religious bodies. The system works well.
 

Dilan's point is cogent too, and I hope that someone -- Andy? -- will address it. I'd just like to ask Dilan for an example of a situation where he would allow a religious exemption from a gay rights law.
 

Dilan's point is well taken.

I would suggest that a better example of social conservatives effectively playing defense is on the issue of homosexual "marriage."

Instead of attempting to convince a democratic majority of voters of the wisdom of changing the definition of marriage to include homosexual unions, homosexual rights activists are attempting to impose this change in definition by judicial fiat and fight like hell against popular votes on the issue as in the Bay State.

The result has been a popular backlash with referendums banning the recognition of homosexual "marriage" across much of the country, many of them amending the state constitutions in ways that will be very difficult to reverse in the future absent a significant leftward shift of the Supreme Court.
 

Bart, the issue is not gay "marriage"; it is gay marriage. This is an objective statement: gays seek the right to marry in the identical sense that straights may now marry.
 

Regent would obviously scream that gay rights extremists are trying to destroy it. Regent would be right.

Ugh, this was not well-thought out, Andrew. Gay rights activists are of course trying to eliminate anti-gay institutions. They believe, as do I, that this society would be better off without institutions that openly promote discrimination and hatred against gay people. Why is that "extremist"?

The proper concern of the law is to what extent the coercive power of the state is brought in to achieve this goal. But a drive to remove Regent's accreditation has nothing to do with the state. Accreditation is a purely private, market-driven affair. Any such drive is simply an effort to use market forces to isolate and weaken an anti-gay institution. I really don't see why this is "extremist".

Dilan makes an excellent point. And I think you would never have written this about organizations that wish to discriminate on the basis of race. In some sense, you obviously do not believe that discrimination against gays and lesbians is a societal evil on a par with racial discrimination. You're entitled to your opinion (I happen to strongly disagree), but I think it's important to acknowledge that premise.
 

Christian societies on campus shouldn’t be denied recognition on grounds of discrimination. Here there is nothing but symbolism involved. Gay people who are out of the closet have no interest in joining such groups.

I suppose there aren't any gay Republicans, either.

Furthermore, since when is symbolism relegated to the junk heap of social statement? Civil rights movements may have been victorious (as you suggest) because they had logic on their side and grounded experience with which to combat the defense of wuzzy abstractions, but they also had their fair share of symbolic acts to rally their supporters, too.
 

Henry:

Marriage has a several millennium long definition which does not include homosexual unions. Until society, rather than a few lawyers in black robes, redefines marriage, then the term homosexual "marriage" must remain in quotes because there is no such thing.
 

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I think it's unfair to impute a belief that homophobic discrimination isn't on par with racial discrimination. The homophobic discrimination being discussed is only the religion-based variety. And I think one underlying point must be that the government is constitutionally forbidden both to discriminate racially and to prohibit freedom of religion, even homophobic religion.

According to many (though not the Supreme Court since 1990), it's a prohibition of religious freedom if we enforce generally applicable antidiscrimination mandates against religion-based objectors. Should the Court change its view (easily done given the turnover since 1990), this would become the law.

The Koppelman point seems to be that a statute permitting religious exemptions in certain cases carries little real cost, while bringing political advantages and, maybe soon, satisfying constitutional requirements.

I do have doubts, though, whether the number of religious objectors would remain of little cost in some hypothetical, highly conservative state that amazed us by passing such a statute at all.
 

Henry:

Some obvious examples of permissible religious exemptions:

1. The Irish-American Parade that was at issue in the Hurley case (and indeed, any expressive event in which opposition to homosexuality is part of the expressed message).

2. The hiring practices of the Roman Catholic Church or some other church that opposes homosexuality.

3. The hiring practices of an anti-gay advocacy group.
 

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Andrew, We can all appreciate the fact that the Civil Rights Act of 1964 exempts "religion" from its enforcement. Believe it or not, only "religion" exempts Guide Dogs for the Blind aiding the blind into houses of worship. It, not even a hospital's ICU, is the ONLY exception to Guide Dog's unrestricted assistance of the blind.

But, in the "name of religion," men's penises are genitally mutilated. In any other Western Democracy, such a barbaric act as male circumcision is deemed "outside the realm" of religious tolerance -- except for Israel, NYC, the U.S. and any country in which a Jewish population exerts its influence, despite totaling o.o2% of the world's population, nearly every nation EXEMPTS this barbaric act. We scream when it is done to females, but approve and sanction it when done to males?

Gay Liberation asked at its nascent stage, and still asks, to amend the Civil Rights Act of 1964 to include "sexual orientation." Two words to change the only change that has any effect.

Lambda does not. HRC does not. ACLU does not. You did not. Only ONE Democrat agrees. Mike Gravel, the one no one takes seriously. NONE of the others do. No Republican does. You did not. If GLBT can be discriminated in employment and housing, what good is "marriage?" Oh, attorney's love to placate the exceptions, but never address the single SOLUTION. Two words to enhance civil rights for all.

That solution obviates all others. Which is why NO ONE, not even you, could MENTION it. Guide Dogs have more RIGHTS than GLBT? Yep. And no one tries to circumcise their penises.
 

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