Saturday, February 28, 2015

Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law

Andrew Koppelman

Religious conservatives feel that it would be sinful for them to personally facilitate same-sex marriages, and they have sought to amend the laws to accommodate their objections.  These efforts have been fiercely resisted.  The resistance is largely unnecessary.  Gay rights advocates have misconceived the tort of discrimination as a particularized injury to the person rather than the artifact of social engineering that it really is.  Religious conservatives likewise have failed to grasp the purposes of antidiscrimination law, and so have demanded accommodations that would be massively overbroad.  If those purposes are carefully disaggregated, the result is different from what advocates on either side have demanded. 

This issue exposes a major flaw in progressive thought, one that entrenches the very inequalities the left seeks to combat.  The individual-injury-based conception of antidiscrimination law has not only produced excessively harsh treatment of religious conservatives.  It has entrenched racial and gender subordination, by imagining discrimination to be the conduct of a few bad actors rather than a structural wrong that demands structural remedies. 

I elaborate in a forthcoming piece in the Southern California Law Review, available in draft on SSRN, here.

Older Posts
Newer Posts