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 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 virginia.edu
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 virginia.edu