Wednesday, April 28, 2021

Tushnet on Koppelman

Andrew Koppelman

My Balkinization coblogger Mark Tushnet is unpersuaded by the argument of my book, Gay Rights vs. Religious Liberty? The Unnecessary Conflict, as he explains in a new review at the Los Angeles Review of Books Marginalia.  Curiously, though, after declaring my approach to be untenable and morally defective, he ends up embracing something very much like it. 

It would be nice to resolve the gay rights/religion question in a way that does not threaten anybody.  Gay rights advocates fear that exempting even a few religious dissenters would unleash a devastating wave of discrimination.  Conservative Christians fear that the law will treat them like racists and drive them to the margins of American society.  Both sides are mistaken.  The solution depends on a systematic accounting of the interests that must be balanced in any decent compromise, in terms that both sides can recognize and appreciate.  The fundamental aim of the book is to undertake such an accounting. 

In it, I propose that gay people should be protected by antidiscrimination law, but that religious dissenters, who conscientiously object to facilitating same-sex weddings, can be accommodated so long as there are not too many of them – and that law can act to keep the numbers down.  The solution I suggest is to exempt wedding vendors 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.  Such a disclosure would of course drive away many customers, so only those with the most intense compunctions are likely to invoke it. 

The larger question is whether exemptions are ever tolerable.  The toxic core of the conflict is the racism analogy – the idea that those who embrace traditional sexual morality are as bad as racists, and deserve to be treated like racists.  That idea persuades many gay rights advocates that any compromise would be morally repugnant, implicitly condoning evil ideas and bigoted people.  It persuades conservative Christians that they face an existential threat.  One chapter of the book carefully disaggregates the racism analogy into its component claims, some of which are valid and some of which are not.  The crucial disanalogy, I argue, is the broader context in which the exemption claims are made:


“It is a truth universally acknowledged that there could not and should not have been religious exemptions from the Civil Rights Act of 1964.  From this one might infer – many do infer – that that those who refuse to facilitate same-sex marriages are not entitled to even the mild, defeasible presumption of accommodation that America has often extended to conscientious objectors.  One might also infer that, as in 1964, the stakes are high enough to justify a state effort to stamp out the subculture that embraces these hateful views.

“But this misunderstands the situation the country faced in 1964.  One need not take heterosexism less seriously than racism in order to understand the uniqueness of our situation then.

“America has a long tradition of accommodating religious dissenters.  As a general matter, the law should not strive to stamp out any subculture and make its members outcasts.  Racism has been so pervasive and destructive that these two principles are appropriately overridden.  The civil rights struggle demanded coercive cultural reconstruction, especially but not only in the states of the former Confederacy.

“The question is not simply whether people are acting on the basis of repugnant ideas.  There are a lot of repugnant ideas around.  It is whether there should be cultural war.  That question, like any decision to go to war, depends on prudential assessment of likely consequences.  In the case of race, there has been progress, but the war isn’t over.  Zero tolerance remains necessary.  In the case of sexual orientation, war is unnecessary and unlikely to improve matters.”  (Pp. 7-8)


Tushnet writes that my compromise “tells LGBTQ+ people that their co-citizens don’t care as much about discrimination against them as they do about race discrimination . . . .”  The logic here, focusing on “the dignitary harm of Koppelman’s proposal itself,” dictates that any accommodation that would not be extended to race discrimination – indeed, even the willingness to consider such an accommodation - is a pernicious insult to gay people. 

But then Tushnet goes on to embrace a solution with the same defects: “LGBTQ+ people get the protections of ordinary antidiscrimination laws for employment and places of public accommodation; religious objectors get an exemption, probably narrow from one point of view, for some small businesses – where the owner is typically involved on a daily basis interacting with employees and customers, and where the product is what we might call “free speech adjacent” like wedding photography and cake-baking (but not running an ordinary restaurant).” 

Why isn’t this an insult to LGBTQ+ people, since no such exemption has ever been considered for racists?  Tushnet doesn’t explain. 

I come away thinking that my dispute with Tushnet is yet another unnecessary conflict.  He writes that I “run up against a serious and probably insurmountable problem,” that of being “about legal doctrine and moral principle. Doctrine and principle have to be tested against reason to make sure that they satisfy requirements of consistency (legal and moral).”  But I make clear, very early in the book, that I have deep reservations about those requirements: 

“Lawyers are trained to think about conflict resolution by devising abstract principles that should cover all future cases, and which incidentally entail that their side wins.  But this is not the only way to think about conflict.  Sometimes, the right thing to do is not to follow a principle, but to accurately discern the interests at stake and cobble together an approach that gives some weight to each of those interests.  Ethics is not only about principles.  There is a tradition in moral philosophy, going back to Aristotle, that holds that a good person does not necessarily rely on any abstract ideal, but rather makes sound judgments about the right thing to do in particular situations.  Sometimes principles are overbroad generalizations from experience, and distract us from the moral imperatives of the situation at hand.”  (Pp. 4-5) 

Tushnet writes that “these messy compromises might be the best way to get from where we are now to a society where religious and gender-identity pluralism are both recognized as fully as possible.”  I heartily agree, and I am puzzled as to why he thinks that my position differs from his on this fundamental point.

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