Oleske on Koppelman

Andrew Koppelman

Should religious people who conscientiously object to facilitating same-sex weddings, and who therefore decline to provide cakes, photography, or other services, be exempted from antidiscrimination laws? Last September, in the Annual Law and Religion Lecture at Brigham Young University School of Law, I analyzed a common response: the claim that conservative condemnation of gay sex and marriage is as evil as racism, and those who hold that view should likewise be disqualified from religious accommodations. My talk, forthcoming in the BYU Law Review and just posted on SSRN, disambiguates the racism analogy, which is actually several different analogies. One might be comparing (1) their effects, (2) their moral errors, (3) the evil intentions of those who hold them, or (4) their status as views that are appropriately stigmatized. There are important differences. Religious heterosexism is (5) generally nonviolent. And (6) unlike in 1964, when the Civil Rights Act was passed, religious claims can be accommodated without defeating the point of the law.

The law review is also publishing responses to my talk.  One of them, by Lewis & Clark Law School Prof. James Oleske, is also now on SSRN, here.  Prof. Oleske writes that “Koppelman has not correctly identified the prevailing argument against religious exemptions in the commercial sphere. Rather, he conflates two very different things: (1) the drawing of *legal* analogies between the statutory treatment of race discrimination and other types of discrimination, including religious discrimination, sex discrimination, marital-status discrimination, and sexual-orientation discrimination, and (2) an insistence on treating race discrimination and sexual-orientation discrimination as *morally* and *sociologically* equivalent in all respects. Number 1 is quite common in the scholarship arguing against exemptions. Number 2 is not.”

Prof. Oleske, who has written first rate scholarship in this area, is right that the two issues are distinct. The second is hardly uncommon, as I show with numerous examples in the book from which the lecture is an excerpt, Gay Rights vs. Religious Liberty? The Unnecessary Conflict.  (This blog recently ran a symposium on the book.  My response, with links to the critiques, is here.)  He offers two reasons for insisting on the legal analogies: a slippery-slope argument that the wedding vendors’ claims are “a key part of a larger strategy to resist the normalization of same-sex marriage,” and a claim that, while religious nonprofits can be accommodated, there is something distinctively problematic about allowing any for-profit businesses to discriminate.

To the extent that the second claim is independent of the first, it rests on the cultural significance of the businesses’ refusal, “the importance of preventing the profound indignity of being turned away by businesses otherwise open to members of the general public.”  As I argue in the book, “Any legal resolution of this contestation about meanings will impose an interpretation on some who don’t perceive it.  Sometimes that is necessary, but there are costs.  Drawing an exceptionless line at public accommodations means that it is the Christian wedding vendors who must acquiesce in their humiliation in face-to-face encounters. . . . This controversy has made clear that some people perceive such religious significance in their business activity that they are willing to endure large pecuniary losses rather than do what they think is wrong.  That real-world meaning should influence where we draw the line.” (p. 62)

I appreciate Prof. Oleske’s thoughtful and probing critique.  He also points out that, over the years, I’ve made some inconsistent proposals for addressing this issue.  It’s true.  I’ve changed my mind a few times.  These issues are hard, and I’m grateful for friends like him who keep poking me to do better.