A symposium on "Religious Accommodations in the Age of Civil Rights" has just been published in the Southern California Law Review. My contribution,"Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law," is available here. This is the abstract:
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.