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.