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.
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)