Balkinization: Implementing Compromise

Implementing Compromise

Guest Blogger

For the symposium on Andrew Koppelman, Gay Rights vs Religious Liberty? The Unnecessary Conflict (Oxford University Press, 2020).

Douglas Laycock

1. Religious minorities and sexual minorities make essentially parallel claims on the larger society. They each say that some aspects of human identity are so important to each individual that government should not interfere without the most compelling reason. They might have been allies in the political and legal battle against enforced conformity. Instead, they have been locked in mortal combat, each loudly proclaiming its own right to liberty while repudiating or minimizing liberty for those they oppose.

Andrew Koppelman is one of a handful of commentators who understands this, and he understood it from the beginning. He has long argued for the rights of the LGBT community and for religious exemptions for conscientious objectors. He has long recognized that in most cases, we can protect the rights of both groups, and that, as the subtitle of his book says, this long-running conflict is largely unnecessary.

Not that it has made a bit of difference. Too many of the activists on each side vigorously oppose any proposal for compromise. Each side wants a total win in which it gets everything it claims as its rights, and in which the other side is crushed, getting essentially no rights at all. There are men and women of good will on both sides, working to change this dynamic, but they have always taken steady fire from both directions.

Koppelman’s book goes beyond legal doctrine, logic, and appeals to fairness, to consider some of the practical costs of this conflict and the practical risks of compromise, risks which are rather modest for both sides. It is written in an accessible, non-technical style and aspires to reach the grass roots, although the odds of actually reaching them are long. It is a voice of common sense and peace making in the face of intractable conflict.

2. For most legislative purposes, the book is too late. For years, there was an obvious deal to be done in Congress and in red states: pass a strong gay-rights law with strong but bounded religious exemptions. The problem has been that most Republicans don’t want the gay-rights law, and most Democrats don’t want the religious exemptions. Koppelman explains why both sides should reconsider.

But the Supreme Court’s decision in Bostock v. Clayton County largely takes that deal off the table. Federal law now bans discrimination in employment on the basis of sexual orientation or gender identity, in red states as well as blue. Bostock’s reasoning will easily be extended to every federal law that prohibits sex discrimination. The lower courts can be expected to do that work quickly, and cert denied. With respect to all these many statutes, LGBT advocates who resisted religious exemptions before have little reason to agree to any new or more specific exemptions now. Bostock gives them what they need, with no concessions.

Claims to religious exemptions from these laws will be fought out under existing protections for religious liberty—the Religious Freedom Restoration Act with respect to federal law, the ministerial exception in the minority of cases where it applies, state constitutions, state RFRAs, and the Free Exercise Clause if the Court limits or overrules Employment Division v. Smith. It has granted cert on that question in Fulton v. City of Philadelphia. Koppelman’s appeal for compromise is unlikely to influence the litigators on either side of these cases.

But two legislative areas remain for Koppelman’s proposed compromise. One is employers with fewer than fifteen employees, who are not subject to Title VII and thus not subject to Bostock. We still need gay-rights laws in red states to protect these workers, and that will not happen without religious exemptions.

And there is public accommodations. As it happens, and fortunately for the book, public accommodations is Koppelman’s principal example and focus throughout. Title II, the federal public-accommodations law, was enacted in 1964 amid debates about the reach of the commerce power. It applies only to hotels, restaurants, gas stations, and entertainment venues. It does not apply to most retail; it does not apply to wedding vendors. Even more important, it does not prohibit sex discrimination, so Bostock’s reasoning does not apply.

Because Bostock does not apply, there is no federal protection for the LGBT community in public accommodations. And there is no state-law protection in most red states. Here too, unless the Democrats take the Senate and abolish the filibuster, there is no prospect of gay-rights legislation without religious exemptions. With respect to public accommodations, Koppelman’s appeal for moderation and compromise remains highly relevant.

Even if they abolish the filibuster, both sides might be better off with carefully negotiated and specifically bounded statutory exemptions than with litigating for years under the far more broadly and vaguely worded protections of RFRAs and free-exercise clauses. As Koppelman says, legislated rule-like exemptions are generally better than standards-based exemptions. Clearly legislated rules enable both sides to know what they are agreeing to. If the proposed deal is too one sided, clear rules make that apparent to both sides too. Any deal has to protect the core interests of both sides.

3. Koppelman’s proposed implementation of compromise with respect to public accommodations is badly flawed. It is excessively generous to conscientious objectors in some ways, but completely unworkable for them in one important way. He would let businesses refuse to serve same-sex weddings—and unless I missed it somewhere, refuse to serve gays at all—without regard to the size of the business, without regard to whether similar goods and services are readily available elsewhere, and without anyone having the right to challenge or authority to review the sincerity of the objection, or even whether it is rooted in religion.

Koppelman would limit abusive and excessive claims in a different way: any business that claims an exemption must publicly announce that it does not do same-sex weddings, or that it does not serve the LGBT community, or whatever the limits of its refusal to serve are. This requirement will limit conscientious objection to the most committed and most sincere. It will deter conscientious-objection claims because the public announcement will invite retaliation of all kinds. Based on the actual experience of wedding vendors who have been sued for not assisting with a same-sex wedding, conscientious objectors who go public can expect boycotts, defamatory reviews on consumer websites, vandalism, and death threats. Koppelman does not endorse these responses; he would much prefer moderate and restrained responses. But he does expect that making a public announcement will be costly in some way, and some sort of consumer reaction is the obvious and principal cost. He relies on that cost to deter most vendors from making the announcement or acting on their conscience.

This requirement is a mistake. Requiring a public announcement accelerates and aggravates social conflict instead of resolving it. Instead of quietly and politely dealing with one same-sex couple at a time, if and when they request goods or services, every conscientious objector must announce his stance to the world and invite responses and attacks from the population at large. Some customers referred elsewhere will be tolerant and take no action; tolerance is what Koppelman says he wants. Some may not even realize why they were referred elsewhere. But a public announcement goes to the tolerant and intolerant alike, and it guarantees the reactions of the most intolerant among us.

Koppelman thinks that these serious costs are justified by the need to spare same-sex couples the pain of occasionally being declined service and the uncertainty of not knowing when or where that might happen. These harms are undoubtedly real; they are also easy to exaggerate. There is much less reason to take the conscientious objector’s reaction personally if we accept the rest of Koppelman’s book—if we once acknowledge that there is a religious minority with a different worldview and a countervailing set of rights, and that both sides have to live together in the same society. Neither the LGBT community nor the conservative religious community likes important parts of what the other is doing, but as Koppelman argues, both sides would do well to tolerate the other side’s offensive behavior.

However great or small the harm of being turned away or referred elsewhere, there is a much better and less costly way to avert that harm. Gay-friendly businesses should simply advertise as such. Many of them already do, and LGBT-rights groups can encourage more of them to do so. Instead of publicly labeling the conscientious objectors, outing this small number and exposing them to all sorts of retaliation, we can label the larger number of businesses that are open to all, either out of sympathy with the LGBT community or simply because they want to maximize revenue with as many customers as possible. Same-sex couples who fear being refused service can play it safe and patronize the vendors who affirmatively seek their business.

Reciprocal moral disapproval is a condition of living in a pluralistic society with deep and persistent disagreements over certain moral issues. Neither side can be protected from occasional encounters with the other side’s moral disapproval. The moral charge against religious conservatives—that they are hateful and bigoted—carries more stigma in most quarters today than the moral charge against the LGBT community—that they flout traditional rules of sexual morality. There is dignitary harm on all sides, and sometimes physical harm on all sides too.

Of course we should see to minimize these harms. But we must minimize them for both sides. We cannot seek to eliminate all harm to one side by greatly aggravating harm to the other side. No compromise worthy of the name puts all the risk on one side and most of the benefit on the other.

Koppelman’s case for compromise and greater mutual tolerance is powerful. His proposed implementation is flawed. Instead of requiring wedding vendors to advertise invitations for conflict, we should encourage them to advertise tolerance and good will toward all

Douglas Laycock is the Robert E. Scott Distinguished Professor of Law and Professor of Religious Studies at the University of Virginia, and the Alice McKean Young Regents Chair in Law Emeritus at the University of Texas. He can be reached at dlaycock@virginia.edu.

Posted 9:30 AM by Guest Blogger [link]