Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Andy Koppelman’s book on the conflict between laws protecting
Americans against discrimination based on sexual orientation or gender identity
and objections to those laws by religious conservatives desperately searches
for a principled spot in the middle of the road. Andy, a longtime ally on LGBT
rights issues, argues that the conflict is unnecessary because there is an
obvious if not necessarily politically easy answer: grant exemptions to
religious objectors so long as they provide notice of their intent to
discriminate, thereby saving LGBT customers from the dignitary harm of suddenly
being refused service in a public place while also saving religious
conservatives from the dignitary harm of complying with a law that they believe
forces them to violate teachings of their faith. As Andy acknowledges, various
others have sought the same magic location before and some attempts have made
their way into state statutes. The issue is still far from settled, although at
least some resolutions may emerge relatively quickly (see below).
The bulk of this short book rehearses the normative
principles involved and argues, from various perspectives, that compromise is
possible and desirable for all concerned. It repeats the arguments against
compromise from both sides, though to my taste with a rather condescending tone
toward both the LGBT rights advocates, who are often depicted as extremists
(and even conflated with “the Left”) and the religious conservatives, who are
treated more gently but are nonetheless comparable to anti-vaxxers (dangerously
ignorant but at least well-intentioned and sincere). Overall, Andy takes more
seriously the harms claimed by religious conservatives – the 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. The
book nevertheless grants their point with this justification:
Why do they get worked up over what
happens to such a tiny number of them? It isn’t about that tiny number. It is
about the status of all of them.
That text leapt out at me because one could say – without
changing one word – exactly the same thing about same-sex couples seeking
florists or bakers or other services for their weddings.
Stalemate…or is it?
The book seems to carry the unspoken hope that, in the best
of all possible worlds, both sides will grow up, agree to disagree, and leave everyone
else alone. In the meantime, Andy proposes a compromise designed to keep the
two groups apart, each safe in its own enclave. Resolution, however, is not so
easy. There are major problems with the Koppelman proposal even on its own
terms as the least bad option. Rather than debate the underlying values yet
again, I will focus in this commentary on three more concrete questions.
First, several of the shortcomings of this proposal arise
from its grounding in the issues related to wedding vendors, which make for
simple narratives that are easy to sell to the media but which have less significant
systemic and expressive ramifications than those which arise in other contexts.
The justification for spending almost the all the book on wedding commerce is
that the core of the proffered resolution - exemption and notice – will also solve
other examples of the same conflict. Unfortunately, however, this proposal does
not have the necessary legs to adequately address more consequential questions.
Secondly, this proposal is structured so that LGBT issues are singled out for
disfavored coverage, a dangerous approach in any context. Lastly, I will close
with a few words about how the Supreme Court’s decision in Bostock v.
Clayton County, ruling that Title VII’s prohibition of sex discrimination
applies to sexual orientation and gender identity, is likely to affect future
With no disrespect toward the dignitary interests of anyone
caught up in procuring or selling services for weddings, the stakes of the
religious liberty debates in other contexts are much higher. The weddings
context almost guarantees a dispute between a couple and a small business over
a one-time commercial exchange. (The Court has not yet reached the merits in a
wedding vendor case, but review in such a case is possible, perhaps likely.) Andy’s
proposal for exemptions is nominally limited to sales related to weddings, but
other life events also commonly have religious associations. Nor does the
proposal distinguish small businesses from large ones, relying on the wedding
context to limit the fall-out.
Similarly, Andy draws no distinctions between the market and
the public fisc which is created by the taxes that we all pay. Here, a bright
line is not complicated to draw: no exemptions for entities that accept
government funding. Otherwise, an intermediary that seeks to distribute public
monies for charitable purposes would be allowed to interpose what amounts to a
religious qualification on who is eligible to receive such benefits.
Yes, there are organizations like adoption agencies that seem
sympathetic because they have done much good at the same time that they have
turned away same-sex or different-faith couples (and perhaps others). But no,
it will not hurt at-risk children to wean the agencies off public money. That
has already occurred because of LGBT-protective laws in Massachusetts and
Illinois, among other places, and other entities have taken up the slack.
Different adoption agencies can be just as dedicated to children as sectarian
groups are and also obey civil rights laws.
The questions regarding adoption agencies and other social
services providers illustrate the seriousness of the issues in a way that
wedding commerce does not. In every sense – the significant monetary interests,
the lifelong ramifications for the wellbeing of foster children and the
families who wish to adopt them, and the risk of an imprimatur of legitimacy
for eligibility criteria based on religion - the stakes are high.
Yet another example arises in both public accommodations and
employment, and here the humblest of issues takes on serious import. One cannot
complete a day at work without access to a bathroom; nor should access be in
question in any public space that provides restrooms for customers. The basic
human dignity of selecting a restroom should not be infringed because of the
owner’s beliefs about gender and nature, whatever the source of that belief.
Here the stakes are raised because the nature of the indignity is so deeply
personalized. It is both too quotidian and too fundamental to allow intrusion
to that degree into an individual’s self-sovereignty.
The fact that bathroom access is essential to employment
illustrates how slippery exemptions can become. To his credit, Andy
acknowledges that an exemption and notice rule would not work in the employment
context, where the harms to non-adherent employees would be too great. The
ruling in Bostock cements that conclusion by prohibiting the exclusion
of LGBT workers, but it leaves for another day the question of whether a
specific policy on bathroom access might constitute discrimination. Some might
argue for allowing the policy of exemption with notice as to bathroom use, but
the function of that would be the constructive termination of trans employees.
These examples of consequences greater than those implicated
in the wedding vendor scenarios drive home another caution as well. Compromises
must be neutral as among protected characteristics or they inevitably
communicate a hierarchy that is contrary to any meaningful concept of equality.
Consider two examples from existing civil rights laws. In the housing context,
the so-called Mrs. Murphy’s exemption leaves structures with fewer than four
units unregulated. Mrs. Murphy may be racist, sexist, anti-immigrant or
anti-Semitic – there is no implicit message in the exemption that we are
willing to overlook one kind of bias but not others. In the Americans with
Disabilities Act, by contrast, Congress in a fit of cruelty effectively cut off
a nascent line of cases finding that transgender persons could challenge
discriminatory actions based on what was regarded as a disability by
categorically cutting that group of plaintiffs out of coverage. We should not
revert to a kinder, gentler form of that kind of invidious hysteria.
The current religious exemption built into Title VII offers
another approach. It allows religious employers to prefer members of their own
faith. Expanding that principle to allow religious employers to also
discriminate based on sexual orientation and gender identity not only singles
out those characteristics but it also removes even the appearance of selecting
employees based on the religious beliefs that are supposedly in need of reinforcement.
A job seeker’s non-LGBT status would suffice; the staff might be all straight,
for example, but not all Christian. How does that protect the integrity of
Finally, it bears noting that the pace of resolving these
questions is likely to accelerate. The adoption agency question will come
before the Court next fall in Fulton v. City of Philadelphia. For
employment-related issues, the predicate question of the coverage of
discrimination based on sexual orientation or gender identity in civil rights
laws was proceeding at a glacial pace through the states prior to Bostock.
Now that the Court has clarified that coverage exists under federal law, the
dynamics for Congressional action have flipped: continued inaction means
further enforcement of protection under Title VII rather than facilitation of
employers turning a blind eye to discriminatory practices.
LGBT rights advocates still have the goal of extending anti-discrimination
rules to Title II of the Civil Rights Act, governing public accommodations, which
now does not include discrimination because of sex and so is unaffected by Bostock.
For their part, religious conservatives probably will want to revisit the
existing religious exemption provided in Title VII. The composition of Congress
and control of the White House after the coming election will determine which
bills, if any, move forward. But this is the first time that both sides have an
incentive to engage seriously. Whatever Congress does, there will be no mystery
about where to find the devil.
Nan D. Hunter is Scott K. Ginsburg Professor of Law, Georgetown University Law Center. You can reach her by e-mail at email@example.com.