Saturday, July 25, 2020

Response to the symposium on Gay Rights vs. Religious Liberty

Andrew Koppelman

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

In this response, I’ll defend three claims the book makes that have been challenged here:  (1) that the burden that antidiscrimination law imposes on conservative Christians ought to be taken seriously, (2) that their beliefs do not place them outside the limits of the tolerable, and that a liberal society can accommodate them, and (3) that one possible accommodation would be to exempt wedding vendors from antidiscrimination law on condition that they announce their views, thus sparing same-sex couples the stressful uncertainty of not knowing whether and when they will be turned away.

Nan Hunter and Caroline Mala Corbin question (1).  They doubt that there is any problem that needs solving.  Hunter is skeptical of conservative Christians’ “fear that unless they facilitate same-sex marriage they will lose their livelihoods across a range of businesses and sectors - even though, five years after Obergefell v. Hodges, there is no such wave.”  Corbin thinks that their sense of vulnerability is actually about the loss of Christian privilege:  “because the privileged are often oblivious to their privileged position, this move to equality feels like an unjustified attack.”

Corbin’s coinage, “white Christian fragility,” is an allusion to the “White Fragility” anatomized by Robin DiAngelo in her book with that title.  DiAngelo enumerates strategies of denial that whites use to avoid the uncomfortable realization that they are the beneficiaries of undeserved racial privilege. DiAngelo’s analysis is based on the (obviously true) premise that such privilege exists, and that it has real effects in the world.  She shows that the strategies of denial sometimes include delusions of persecution.

I agree with Corbin that conservative Christians sometimes have an exaggerated view of their vulnerability.  I also agree that their sense of injury sometimes arises from lost, unjust privilege.  On the other hand, they aren’t entirely delusional.  I write in the book (p. 64):

“If the aim of antidiscrimination law is to guarantee full citizenship to everyone, then it is relevant that, because of the uncompromising interpretation of that law that is now prevalent, conservative Christians may not be able to be wedding vendors, counselors, social workers, or psychologists, they may not be able to control the content or staffing of their educational institutions, and various other agencies face the denial of funding.  Citizenship is at stake on both sides.  The more general purport of this strict interpretation of the law is to feed the demonization of conservative Christians, officially assimilating them with racists as people who have intolerable views.  If the law aims to end institutionalized humiliation, then this move is counterproductive.”

The role of race in Corbin’s analysis is not clear.  She is right that “the vast majority of litigants seeking religious exemptions are white Christians,” and it is the white Christians, in particular, whom this issue drove into the arms of Trump.  But according to 2019 Pew data, 62% of white people favor same-sex marriage, compared to 51% of black people. According to a 2014 Pew survey, 70% of black respondents said homosexual behavior is a sin, compared to just 47% of whites.  Like most Americans, African-Americans who disapprove of homosexuality do so primarily for religious reasons.  This conflict affects them, too.  It is not only a dispute among white people.

Corbin thinks that the “fragile Christian reaction . . . should not necessarily be placated and accommodated,” because the conservative Christians “are merely required to follow the same anti-discrimination law as everyone else.”  Here her challenge moves from (1) to (2), and she takes her stand against a long American tradition of accommodating religious dissenters.  The same could be said of conscientious objectors who were jailed for refusing military service or Jehovah’s Witness children who were expelled from school for refusing to say the Pledge of Allegiance.  Does she really think that Catholic communion should have been banned during Prohibition?

The “same law” argument makes sincerity irrelevant.  But she also “wonder[s] whether the objections have less to do with sincere religious belief than with sincere white Christian fragility.”  That’s a hard sentence to parse.  It comes dangerously close to saying that they misunderstand the basis of their own claims.  How could Corbin know that?  People whose religious beliefs we reject tend to be incomprehensible to us, and we are likely to get their psychology wrong.  And even paranoids have enemies. The baker Jack Phillips, for example, “stopped baking wedding cakes alto­gether, sacrificing about 40% of his business. He had to lay off half his employees. He received hateful phone calls and emails, including mul­tiple death threats. Rocks were thrown through the bakery’s windows. He was forced to install security cameras. His wife was afraid to set foot in the bakery.”  (p. 136)  He remains the object of an ongoing vendetta, nicely described by Halley.  This kind of experience can leave you feeling, well, kind of fragile.

Steven Smith, on the other hand, doubts that I have made a strong enough case for (2).  The problem is that my pro-gay-rights position places conservative Christians in “a community that is hostile to their view of the universe, or to their fundamental faith.”  There are two kinds of hostility that are relevant here.  I embrace one and repudiate the other.

I think that the sexual morality that deems homosexual sex immoral is wrong and destructive.  Smith fears that if my views “come to be the official orthodoxy . . . the nation is inevitably going to attempt to discourage and defeat the pernicious views” like his.  Guilty as charged.  I want to discourage and defeat those views.  I agree with him that the traditional view is increasingly regarded as weird.  I happen to think that’s a good thing. 

But I can be hostile to that view of morality without being hostile to the people who embrace it.  I don’t need to treat them as evil, hateful people.  The book is in part a response to my compatriots on the left who propose to so treat them, and whom Smith reasonably finds scary.  The great attraction of liberalism, as I say in the book, is that it protects the right to be weird.  The ability of religious conservatives to live out their ideals should not depend on whether people like me agree with them.  The only weapon I propose to use is persuasion.

Smith suggests that I’m naïve to think I can sell liberalism in today’s world of intolerant polarization.  He might be right.  My personal experience however has been that the bounds of the realistic are more elastic than you might expect.  When I wrote my student note in 1988, arguing that discrimination against LGBT people is sex discrimination (and advocating for same-sex marriage), many of my fellow students thought I was a crank.  When Bill Eskridge and I wrote our amicus brief making the same argument in Bostock, we were pretty sure that we were going to lose.  But we thought it was worth trying to show Gorsuch that there was no wiggle room and that an honest textual reading of Title VII demanded protection for the plaintiffs in that case.  Nobody was more astounded than we were when we won.  Now I’m writing scholarly pieces defending the decision.   There will never be progress unless people are willing to make the case for their unrealistic aspirations.

I don’t think that the liberal framework is secure.  We have a President who admires and envies murderous dictators, and who fortunately is too cowardly and incompetent to emulate them.  All institutions are chronically insecure and in need of constant rebuilding.  The case for liberalism has to be made anew in this specific context, by showing that it doesn’t threaten anyone’s most vital interests.  Janet Halley and Douglas Laycock make that case eloquently, and I’m grateful to have them as allies.

Then there’s (3), my specific proposal:  “to exempt only those who post warnings about their religious objections, so that no customer would have the personal experience of being turned away.  There is a cost to such an announcement: it will repel, not only gay customers, but also that very large number of people who find discrimination repellent.  For that reason, it’s likely to be seldom used, and only by those with the most intense religious compunctions.  A few dissenters, whom one can easily avoid ever meeting, won’t undermine the equality of gay people.”  (11)

Rick Hills accurately notes that I haven’t squarely addressed the problem he calls “Baseline Hell,” which “occurs wherever social norms about property are so contested that any change in the status quo can be painted alternatively as either the exercise or invasion of private rights.”  I claim that my proposal would not harm anyone, but, he asks, how do I know that there is no harm in depriving LGBT people of their right to be free from discrimination?  There is, he observes, no theoretically elegant way to get out of Baseline Hell, because any conception of harm is going to be parasitic on some already specified notion of the baseline of legal rights.

I don’t dwell on that problem in my book.  Part of the reason is that it’s the kind of theoretical conundrum that makes the general reader’s eyes glaze over.  But the more fundamental reason is that the idea of harm on which I rely is not based on the invasion of rights established by preexisting positive law.  Rick is right that when the bounds of those rights are contested, rights talk will be question-begging.  But the way to avoid Baseline Hell is, as I say in the book, “to look past the principles to the underlying interests.  Discrimination harms its victims’ urgent interest in equal treatment in public spaces.  Religious liberty protects what many people regard as their deepest concerns.  The legal rights in question are tools for protecting those interests.” (12)

Any antidiscrimination statute, and any accommodation within that statute, is in fact an adjustment of the property rights baseline. Any such adjustment will have winners and losers.  Under the ancient common law, I could forbid airplanes from flying over my land at 20,000 feet; now they get to do it without my permission. 

The baseline problem is a tough one for courts trying to administer the Religious Freedom Restoration Act, which did not purport to deprive any private person of their preexisting legal rights.  If you think about material injury rather than deprivation of legal entitlements, it gets easier.  Hobby Lobby presents an intractable theoretical problem in the abstract, but I have argued that in terms of a balance of interest, the contraception mandate at issue in that case “improves the health of pregnant women and newborns, reduces the disparity in health costs between men and women, and most importantly, allows women to determine the course of their own lives.”  “Freedom of the Church” and the Authority of the State, 21 J. Contemp. Leg. Iss. 145, 162 (2013).  Had the religious claimants gotten what they asked for – the right to deny their employees any contraception coverage at all - the but-for causal result would have been unintended pregnancies and, because such pregnancies typically get less prenatal care, low birth weight babies.  The harms in the gay rights/religious liberty case are less tangible, on both sides.  That’s what makes it tougher.

When we think about religious exemptions, we’re always asking whether this or that accommodation would inflict too much pain on this or that interested party.  Pain is not a matter of legal deprivation.  It is prelegal.  The baseline is human experience.

I resist Hills’s invitation to evaluate the moral content of heterosexism, because I don’t want the state to be in the business of making content-based discriminations among religions.  He is right that some religions “attack the moral equality that undergirds a liberal republic.”  (Because conservative teachings about homosexuality do not do this, he deems them tolerable, thus offering an alternative path to (2).)  That’s not just true of white supremacists.  The Nation of Islam, for example, has taught that white people are devils created by the evil scientist Yakub.  This is inconsistent with moral equality.  We all ought to repudiate it.  But there is no need for the law to pick on them.  And similarly with the conservative Christians who want to be able to retreat into their own discriminatory cultural enclaves.  The question whether their views attack the moral equality of gay people is hotly disputed among professional philosophers, and the state has no comparative advantage in adjudicating it.  Unless they engage in actions that actually hurt people, by violating either legal rights or prepolitical interests, those who preach illiberal ideals should be tolerated.  This is a variation on the old problem of tolerating intolerant speech.  Liberal toleration extends to cranks who must be kept away from the levers of political power.  To the extent feasible, it means a right to be weird.

Corbin, Hunter, and Schwartzman all fear that I am opening the door to a flood of exorbitant religious liberty claims.  I don’t believe that, but of course I could be wrong.  “The same kind of uncertain guess must be made whenever religious accommodations are proposed.  One must always ask whether there will be so many claims that the law’s purpose will be thwarted – whether the exemption of the Catholic Mass from the 1919 Volstead Act’s prohibition of alcohol would lead huge numbers to convert to Catholicism just so they can imbibe (it didn’t), or whether exempting all pacifists would hamstring the military draft (at the end of the Vietnam war, it did).” (120)  If the issue is how the culture is trending, then we should look at the evidence:  “In 1997, 27% of Americans supported same-sex marriage.  In 2017 it was 64%.  Among Americans aged 18 to 29, in 2016 it was 83%.  It is only 34% of white evangelical Protestants, but even in that group, opposition has plunged from 71% in 2013 to 58% in 2017.  Of white evangelicals aged 18 to 29, a majority – 53% - are in favor. . . .” (52, citations omitted)   

Smith worries that “reprisals will predictably be inflicted on” any vendor who lets its religious compunctions be publicly known.  Douglas Laycock makes the same point.  I share that worry.  I am particularly troubled about reprisal via lawsuit, which the book addresses at some length (pp. 135-38), and about which Halley spots some details that eluded me.  There is also the possibility of illegal violence, but that’s a problem for any society.  The most promising remedy is “rules that if obeyed, will create safe space for everyone.”  Even if one follows his favored solution, of allowing exemptions to any wedding vendor who asks for one, it is “doubtful that any exemption can be asserted without the world finding out that this has happened.”  (140)  One place where liberalism really does have an orthodoxy is its protection of the safety and security of dissenters.  As people become increasingly persuaded that their own tribe is secure as well, violence tends to diminish.  We have to try.  What’s the alternative?

Laycock’s proposal, “Gay-friendly businesses should simply advertise as such,” has already happened in some places.  It is a prescription for no antidiscrimination protection at all, leaving matters to the private sector.  I explain in the book why such protection is warranted.  Halley suggests a narrower exemption than I propose.  Her “business model” exception would deem a business expressive, and so exempt from regulation, based on its “level of personal service, deliberate novelty, and tailoring to the event involved.”  With any such multifactor standard, I doubt that adequate notice could be given about what the law is.  No business could figure out whether it was exempt without professional legal advice, and in any case different lawyers could reasonably come to different conclusions.  That’s what draws me to a bright line rule.  

Micah Schwartzman is as pessimistic as Smith, but from another direction: the federal courts are untrustworthy, they will distort the law in a religiously conservative direction, and any compromise will only encourage their overreach.  I share his worry, and in fact spend some of my book elaborating it.  But I don’t think the right answer is to fiercely resist all of the other side’s claims, however reasonable.  I’d like to try having each side compete to be more reasonable than the other.

Hunter is right that my focus on wedding vendors means that quite a lot of gay rights/religious liberty controversies are left unresolved.  The central aim of the book is to persuade readers of (2); to show that the two sides can tolerate one another.  The specifics will present different issues in different contexts.  I repeat what I say about my public accommodations proposal:

“This is not the kind of problem that can be solved by a professor sitting alone at his keyboard.  The parties concerned have to talk to each other and work something out, something that can’t be predicted in advance.  What the professor can do is dispel the confusion that prevents negotiation from happening.” (11)

I am astounded and grateful that such a distinguished group of scholars has participated in this conversation.  They’ve forced me to clarify matters that I wish I had thought of and addressed in the book.


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