Wednesday, July 22, 2020

Judicial Compromise and Political Uncertainty (or, What If You’re Not Sugar Ray Robinson?)

Guest Blogger

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

Micah J. Schwartzman

The law and politics of LGBTQ rights and religious freedom have changed significantly since Andrew Koppelman’s book, Gay Rights v. Religious Liberty? The Unnecessary Conflict, was published less than two months ago. The emerging conventional wisdom about the Supreme Court’s recent Term is that a majority of the justices, led by Chief Justice Roberts, have reached a breakthrough by forging a nonpartisan compromise in the culture wars. This seems to be the prevailing view from Michael McConnell, Akhil Amar, Jeffrey Rosen, Mark Movsesian, David French, and others.

The basic contours of the compromise are said to be following something like the Fairness for All Act, a piece of federal legislation proposed last year that would prohibit discrimination on the basis of sexual orientation or gender identity in public accommodations and employment, while granting extensive exemptions for religiously-affiliated organizations and employers. It is fair to say that the Fairness for All Act went nowhere legislatively. It was opposed by conservative Christian groups like Alliance Defending Freedom, the Family Research Council, and the Southern Baptist Convention’s Ethics & Religious Liberty Commission, and by groups that support LGBTQ rights, including Lambda Legal, HRC, and the ACLU. There was no uptake for this law by either Republicans or Democrats in Congress. The bill was basically dead on arrival.

But where Congress has failed, so we’re being told, the Roberts Court may yet be successful in reaching some sort of compromise. On one side, the Court has protected LGBTQ rights in Bostock, interpreting Title VII to prohibit discrimination on the basis of sexual orientation and gender identity. And, on the other, it has signaled its continuing solicitude for religious exemptions by expanding the scope of the ministerial exception in Our Lady of Guadalupe and by upholding the Trump administration’s religious and moral exemptions from contraceptive coverage requirements in Little Sisters of the Poor. Together, these decisions can be seen as marking out the contours of a new judicial settlement in the conflict between LGBTQ rights and religious liberty. The basic gist of the settlement is a default of nondiscrimination in public accommodations and employment, with extensive exemptions for those who object on religious grounds to employing or providing services to LGBTQ people. Of course, the details remain to be worked out, but the basic legislative and constitutional framework is taking shape.

That, at any rate, is the new conventional wisdom. How does all this relate to Koppelman’s argument in Gay Rights v. Religious Liberty? Koppelman’s basic claim is that the LGBTQ movement has won—or close enough—and the victors should be magnanimous toward those they have vanquished. And the form of that magnanimity should be a tightly controlled set of religious exemptions from antidiscrimination laws in the context of public accommodations, especially as applied to wedding vendors. So one might expect Koppelman, and those who share his general outlook, to be reasonably happy about recent developments in the Court.

But here I want to sound a few notes of caution, even for those who might be inclined to favor a settlement of the kind Koppelman has proposed:

First, from the beginning of his book, Koppelman says that the “gay rights/religious liberty issue is not a question for the courts” (5). In his view, appropriate compromises can only be negotiated legislatively. Sometimes Koppelman says that this is because courts can’t draw sharp enough distinctions or make the interest-based tradeoffs necessary to achieve the right sort of compromises. But a deeper worry here must be that federal courts are now controlled by judges who can’t be trusted to strike proper balances. More specifically, Koppelman’s view is that religious liberty ought to be limited when exemptions impose significant harms on third parties. I share that view, but the Supreme Court in Hobby Lobby, and even more clearly in Little Sisters, seems to reject it. The Court has adopted a view of the Religious Freedom Restoration Act that, as Koppelman writes, “is an injury-generating machine that will produce a growing class of persons who have been harmed, perhaps severely harmed, in order to accommodate the religious scruples of another, more favored class” (91). If you think the Court has embraced this view of RFRA, and if you think it might be prepared to extend that view to the Free Exercise Clause, as it has been invited to do in Fulton v. City of Philadelphia, perhaps  you should be concerned that the Court will constitutionalize exemptions that go well beyond magnanimity and toward significant retrenchment of LGBTQ rights. At the moment of victory—or, for Koppelman, enough victory—the Court might prefer something closer to a draw.

Second, as Koppelman observes in chapter 6 of his book, the Court’s aggressive interpretation of RFRA—and, I would add, its more general favoritism of religion—undermines the possibility and stability of legislative compromises. To see this, consider again the Fairness for All Act. If the authors of that Act were confident in the balances it strikes, they might have proposed exempting it from RFRA, which otherwise requires courts to apply a compelling interest test to federal laws that substantially burden religion. But as the Act was presented, religious conservatives who were unhappy with the law could have sought to undo provisions that burdened them by bringing challenges under RFRA. For example, owners of a religiously-affiliated for-profit corporation could have objected under RFRA to parts of the law prohibiting employment discrimination against LGBTQ persons. Proponents of the law might think that such a challenge would be rejected by the courts, but especially after Little Sisters, that is far from obvious. It isn’t hard to imagine panels in the Fifth, Sixth, or Eighth Circuits holding that the law exempts religious nonprofits from antidiscrimination requirements and that religiously-affiliated for-profit corporations should receive the same treatment. That, after all, was the Court’s basic strategy in Hobby Lobby.

There is an irony here, which I think Koppelman sees. For years, many religious conservatives and some liberal proponents of religious accommodations have made common cause to read RFRA broadly and, when that was not sufficient, to argue that the Supreme Court should reverse Employment Division v. Smith and hold that any substantial burden on religion should trigger strict scrutiny under the First Amendment. The Court has so far obliged on RFRA and may yet come around on the Free Exercise Clause. But these gains for judicially-mandated religious accommodations have also made it difficult to trust that proposed legislative compromises, often favored by the same accommodationists, will hold up against free exercise objections. Legislation such as the Fairness for All Act would be subject to immediate challenge and to possible undoing by conservative courts. Any bargaining over LGBTQ rights and religious liberty is now in the shadow of an ascendant theory of religious free exercise. And it is unclear how far conservative courts will press that theory to roll back the coverage of antidiscrimination laws.

Third, this uncertainty about the legal status and stability of LGBTQ rights suggests an objection to one of the deeper claims of Koppelman’s book. In his view, the conflict over LGBTQ rights and religious liberty is, at bottom, the result of “philosophical confusion” (12). On the left, we are confused about the purposes of antidiscrimination law and about what it means to be an equal citizen. And on the right, people are confused about the nature and scope of religious liberty. If we could look past absolute principles to the underlying interests that animate both sides, and if we could see those interests clearly, then all this conflict would be unnecessary.

Koppelman is right that there are some philosophical confusions in this conflict. And I think he has introduced some of his own. (He adopts a conception of antidiscrimination law as correcting for market failure against an otherwise libertarian baseline, which is, at the very least, a highly controversial view.) But even if it were possible to correct these misconceptions, and even if Koppelman had none of his own, there would be still be conflict. And the reason is that the “root of the problem” (12) is not so much philosophical confusion but rather political uncertainty.

Koppelman is confident that the LGBTQ movement is victorious and that its gains either are, or will soon be, locked in and entrenched. He can point to Obergefell and now to Bostock as evidence for his view. But rights can be narrowed, destabilized, and subverted over time. As Elizabeth Sepper, Louise Melling, and others have argued, the history of reproductive rights is a cautionary tale. Exemptions may be defended to protect conscientious objectors, but they may also have political use as part of a more general strategy to reverse changes in moral, cultural, and legal norms. What begins as an exemption can, with time, become the rule, as we have seen in so many states that are attempting to prohibit abortion. As one conservative commentator recently said, “Religious liberty is not enough.” Many religious and social conservatives want the law to reflect their theological and ethical views about sexual morality. Religious exemptions, for them, are temporary necessities in a rearguard action, not long-term aspects of a stable moral compromise.

Now Koppelman might say, again, that conservatives who take this view have lost, and liberals should have less anxiety and more generosity or, as it were, liberality. He closes his book with a story about the boxer, Sugar Ray Robinson, going easy on a terrified and far less capable opponent. Koppelman quotes Robinson as saying: “Don’t worry. I’m not going to hurt you. I’m just going to win.” If you are the best pound-for-pound boxer who has ever lived, it is easy to say that. But if you have lost a few rounds, won a few rounds, and you are not so sure what will happen next, you might be understandably reluctant about pulling your punches. And that won’t be because you are confused, or mistaken, about what you or the other side is fighting for.

Bostock is an important victory for LGBTQ rights, and the Supreme Court’s recent decisions might point the way toward a compromise that most Americans can support. But the Court’s religious freedom jurisprudence must give liberals and progressives, including Koppelman, significant pause. The Court’s interpretation of RFRA, and perhaps soon the First Amendment, works to undermine the possibility of legislative compromise by creating uncertainty about the rights of religious conservatives, who have incentives to seek broader liberties, and of LGBTQ people, who must be rightly concerned about losing much of what they have only so recently gained.

If political uncertainty, more than philosophical confusion, explains much of our current situation, then we have reason to be skeptical of the new conventional wisdom about the Roberts Court and also about Koppelman’s ever-optimistic claim that the gay rights/religious liberty conflict is unnecessary.

Micah J. Schwartzman is Hardy Cross Dillard Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schwartzman at

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