Balkinization: Should We Placate White Christian Fragility?

Should We Placate White Christian Fragility?

Guest Blogger

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

Caroline Mala Corbin

In his new book, Gay Rights v. Religious Liberty?, Andy Koppelman just wants us all to get along. But we cannot while we are at an impasse. When it comes to religious wedding vendors who do not wish to serve same-sex couples, each side has demonized the other: “Many on each side think that their counterparts are evil and motivated by irrational hatred – either hatred of gay people or hatred of conservative Christians.” (p.2)

Professor Koppelman argues that if people were not so intractable, a practical compromise awaits. Moreover, this compromise—a pragmatic rather than principled solution (pp.4-5)—would only improve matters for the LGBTQ community. After all, one consequence of the culture wars has been splitting the progressive coalition, “creating the opportunity for a cruel authoritarian politics that was once unimaginable.” (p.33). Professor Koppelman proposes to allow the truly religious to discriminate on the basis of sexual orientation in providing wedding services, provided these religious objectors post a warning so that no one is humiliated by asking for services they will never receive. (p.11) He is fairly confident that once this small group of objectors are placated, many benefits will flow, and that will be the end of it.

But as Professor Koppelman acknowledges, “Any religious accommodation rests in part on a bet that it will not be invoked so often as to defeat the purpose of the law.” (p.52). I am less confident than he that demands for religious accommodations would be contained. Take the Affordable Care Act’s contraception mandate, which promoted women’s equality by requiring employers to include FDA-approved contraception in their insurance plans. Religious objectors’ victory in Hobby Lobby, where they won the right to a religious exemption from the mandate, did not end challenges to it. Instead, nonprofits protested that filing paperwork to receive an exemption was itself a substantial burden. Along those lines, the complaints against anti-discrimination protections have been not been confined to wedding vendors. Suits demanding a religious right to discriminate outside the wedding context have been brought by doctors, social workers, shelters, police officers, foster care agencies, hospitals, to name a few.

The main point I wish to make, however, involves Professor Koppelman’s criticism of the what he considers the toxic racism analogy. Comparing objections based on sexual orientation to objections based on race invariably “lead[s] the spectator to the wrong conclusion: that all religious conservatives are malicious hateful people. That makes the problem unsolvable.” (p.6).

Professor Koppelman argues that there are actually four dimensions to the analogy with race. The comparisons might be to “(1) their effects, (2) their moral errors, (3) the evil intentions of those who hold them, or (4) their status as views that are appropriately stigmatized.” (p.110). It is the third one, he argues, that underlies the assumption that “the objection to facilitating same-sex marriage isn’t really religion at all, that it is ‘cover’ for something else. Something nasty.” (p.108). He argues that this aspect “does most of the work” (p.112) and that this erroneous belief about religious objectors as malicious and vicious bigots makes sensible compromise impossible. (pp.112-13)

I would like to suggest if we were to examine religious objectors through the lens of critical race theory, we might find that it is neither sincere religious belief nor malicious animus that motivates those bringing lawsuits, but instead something analogous to white privilege and white fragility. In other words, the race analogy works, but not in the way Professor Koppelman describes.

I do not think it is an accident that the vast majority of litigants seeking religious exemptions are white Christians, and I think any analysis must take this fact into account. I agree conscious animus may not be the driver. However, I wonder whether the objections have less to do with sincere religious belief than with sincere white Christian fragility. (Professor Koppelman gestures towards this, for example, when he notes that Trump’s popularly among white evangelicals may have more to do with racial anxiety than religious liberty, but he does not really explore this possibility. (p.37))

Privilege tends to breed fragility. What do I mean by privilege? White privilege or Christian privilege equates to benefits that whites or Christians enjoy, often without even realizing it, that nonwhites or non-Christians don’t. Classic examples of white privilege include the ability to buy “nude” stockings or “flesh colored” band-aids without much trouble or the ready availability of children’s books with characters that look like your child. Key to privilege is that those who benefit from it are often unaware that how different their experiences are, in part because their understanding and values serve as the unstated norm.

Examples of Christian privilege might include an official calendar tailored to Christian holy days, so that Christmas is a federal holiday and the Christian Sabbath falls on the weekend. Another example might be the proliferation of Ten Commandments and Latin crosses and other Christian imagery on government property. Laws that reflect Christian moral views on contested issues is yet another of the privilege that Christians have long enjoyed in the United States.

White fragility or Christian fragility describes the constellation of behaviors that the privileged often exhibit when people point out their privileges or, even worse, threaten to take them away. They include overreaction, denial, and a tendency to center themselves, often claiming that they are the real victims in this story. In particular, changes in the status quo designed to move to greater equality are experienced as hostile targeting. To be fair, a move away from the status quo does dismantle privilege. But because the privileged are often oblivious to their privileged position, this move to equality feels like an unjustified attack.

Think about the backlash to Colin Kaepernick’s Black Lives Matter protest. There’s a well-documented problem of police violence against innocent black citizens. A famous athlete tries to use his platform to bring attention to the issue by kneeling during national anthem. One fragile white reaction was to ignore or deny the problem of racism and instead make it about themselves, how they are offended by this protest,[1] and therefore they are the true victims.

With this sketch of privilege and fragility in mind, I wonder if we might view emerging LGBTQ protection as the beginning of the end of the white Christian privilege of dictating morality in the United States. For white Christians, American law and culture have long aligned with their religious views. Non-Christians and nonwhites, in contrast, are used to navigating a society that is not designed for them. For Non-Christians, just observing major holidays might take some work and adjustments. For white Christians, this may be a new experience.

This is where white Christian fragility comes into play. What I will describe isn’t necessarily in bad faith; nonetheless, it still illustrates privilege and fragility. It starts with a legal or cultural shift that attempts to address another group’s long subordination. For example, after a long era of unequal treatment, often justified by “Judeo-Christian morality,” it is no longer legal to discriminate against LGBTQ persons in places of public accommodation in many states.[2] This represents a change in the status quo. The response from those used to dictating American morality and law is to overreact, deny, and center themselves.

There is overreaction: All of sudden it is against their religion for their shop to serve customers whose lives do not exactly match their religious ideals. There is denial: These unwanted customers will suffer little harm because they can just go somewhere else.[3] And, as usual in the reaction of the privileged fragile, they center themselves. This equal accommodation requirement is really about hostility to Christians, and we the Christians who want to deny service, are the real victims. As Koppelman noted, “conservative Christians feel besieged.” (p.39) Indeed, “Three quarters of white evangelical say discrimination against Christians is as big a problem as discrimination against blacks and other minorities.” (p.39)[4]

But it’s not true. They are wrong. White Christians Americans, one of the most powerful groups in the United States, are not suffering greater rates of discrimination than Black Americans. White conservative Christians are not being singled out for discriminatory treatment in their everyday activities—whether going for a jog, driving a nice car, or getting a loan from a bank. On the contrary, they are merely required to follow the same anti-discrimination law as everyone else. But because they are used to centuries of unquestioned privilege, the growing equality of other groups—and even the very questioning of their privilege—genuinely feels like an attack.

Of course, reframing any move towards equality as an attack allows the privileged to resist it, thereby leaving intact the status quo, along with all their privileges. In the end, while this reaction may not be “hateful,” or “bigoted,” it is still problematic. The fragile Christian reaction may not be in bad faith, anymore than the fragile white reaction, nevertheless, it should not necessarily be placated and accommodated.

Caroline Mala Corbin is Professor of Law and Dean’s Distinguished Scholar at the University of Miami School of Law. You can reach her by e-mail at ccorbin at law.miami.edu.

[1] While most African-Americans supported him, most whites initially did not. Poll: 53% of Americans Say It’s “Never Appropriate” to Kneel During National Anthem, Wash. Post (May 23, 2018), https://www.washingtonpost.com/news/sports/wp/2018/05/23/poll-53-percent-of-americans-say-its-never-appropriate-to-kneel-during-the-national-anthem/ (finding that 69% of African Americans said protests of national anthem was acceptable while 58% of whites and 86% of (mostly white) Republicans said anthem protests are never appropriate).

[2] Title II of the Civil Rights Act of 1964 prohibits discrimination in places of public accommodation on the ground of race, color, religion, or national origin” only. 42 U.S.C. § 2000a.

[3] Professor Koppelman recognizes this tendency when he observes, “Religious opponents of antidiscrimination protection for gay people haven’t confronted [the] evidence. Instead, they focus on the burdens that such laws would impose on them. There is no acknowledgment that gay people are ever mistreated.” (pp. 44-45)

[4] Convervatives Christians likewise believe “that in the contemporary United States they face more discrimination than Muslims.” (p.36)

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