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.