Thanks to Caroline
Mala Corbin, Janet
Halley, Rick
Hills, Nan
Hunter, Douglas
Laycock, Micah
Schwartzman, and Steven
D. Smith for their insightful critiques of my book,
Gay
Rights v. Religious Liberty: The Unnecessary Conflict.
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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