Abstract

Excerpted From: Andrew Koppelman, Gay Rights, Religious Liberty, and the Misleading Racism Analogy, 2020 Brigham Young University Law Review 1 (2020) (115 Footnotes) (Full Document)

Should religious people who conscientiously object to facilitating same-sex weddings, and who therefore decline to provide cakes, photography, or other services, be exempted from antidiscrimination laws? This issue has taken on an importance far beyond the tiny number of wedding vendors who have made such claims.

Each side's position has become more unyielding. The most sophisticated scholars are as rigid as the politicians and partisan commentators.

They don't agree on much, but all think that their disagreement concerns a matter of deep principle. Religious liberty and nondiscrimination are each understood as moral absolutes. Compromise is perceived as an existential threat. Both sides feel victimized. 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. Principles are a distraction, which make each side's claims seem more uncompromisable than they are. Each invokes interests of a kind that can and should be balanced against others.

Many compromises are possible: an exemption for very small businesses, or for religiously oriented businesses, or expressive enterprises such as photographers. The specifics would have to be negotiated, and the negotiation would be different in different places.

In earlier work, I have proposed to exempt only those who post warnings about their religious objections, so that no customer would have the personal experience of being turned away. The harm of discrimination that is most salient here is the wounding experience of personal rejection--or its anticipation, which is often a source of chronic stress--during what one reasonably expects to be the happy occasion of planning one's wedding. That can be avoided if the vendors are required, as a precondition for exemption, to make their objections to same-sex marriages clear to the public in advance. Such announcements have obvious commercial costs, and so they are likely to be rare and to come only from those with the most intense religious compunctions. A few dissenters, whom one can easily avoid ever meeting, are unlikely to undermine the equality of gay people.

A common response to proposals like this one is that conservative condemnation of gay sex and marriage is as evil as racism, and those who hold that view should likewise be disqualified from religious accommodations. Even if they can be accommodated without defeating the purposes of antidiscrimination law, it would be wrong to do so.

The racism analogy is actually several different analogies. They need to be distinguished before we even know what we are arguing about. One might be comparing their effects, their moral errors, the evil intentions of those who hold them, or their status as views that are appropriately stigmatized. These are the ones that are usually invoked to block any accommodation. Some of them are sound, but together they are misleading. The most important mistake that the analogy elicits is the notion that everyone who endorses the traditional religious condemnation of homosexuality is evil. That wasn't true even of many white racists during the Jim Crow era, and it isn't true of the millions of Americans today who hold conservative views about sexuality.

There are also important differences. Religious heterosexism is generally nonviolent. Our experience with racism in the past fifty years, protected by freedom of speech, has shown that we can endure the open display of such repellent views. Unlike racism in 1964, when the Civil Rights Act was passed, the law may be able to accommodate religious conservatives without defeating the point of the law. Establishing a legitimate place for dissenters, in a gay-friendly legal regime, could actually be helpful in addressing some of the most pressing contemporary gay rights issues, notably gay youth homelessness.

[. . .]

I've been a gay rights advocate for more than thirty years. I've worked very hard to create a regime in which it's safe to be gay. I'd also like that regime to be one that's safe for religious dissenters. The notions that gay people are obligated to lifelong celibacy, or that marriage is inherently heterosexual, are grave moral errors. (I can't argue that here, though I have done so elsewhere.) But that does not mean that state power must unrelentingly be used to eradicate these ideas.

In the relatively bland religious environment we inhabit, we have forgotten what real religious diversity is. It was once widely agreed that there was only one true path to salvation, and that other people's beliefs were leading them to Hell. Toleration became the rule not because people no longer believed this, but because they became persuaded that the coercive use of state power wouldn't help; state religion is likely to be corrupted religion. Religious liberty is fundamentally about tolerating ideas we regard as odious.

I would very much like to banish to the margins of society the notion that homosexual sex is inferior to heterosexual sex. I want gay people to suffer no disadvantage or humiliation whatsoever because there are other people who believe that nonsense. (Again, with acknowledgement of those of you in the audience who do believe that nonsense.) But I also believe that the margins of society should be a safe place, where those who do not conform to majoritarian norms, and whose views I regard as disastrously misguided, can live their lives in peace and security.

I take as my model the boxer Sugar Ray Robinson.

My father, George Koppelman, grew up near New York City. He told me the following story. A friend of his entered the city's amateur boxing competition, the Golden Gloves. He unexpectedly found himself matched against Robinson.

Robinson is regarded by many sportswriters as the greatest fighter of all time. He held the welterweight title from 1946 to 1951 and won the middleweight championship five times between 1951 and 1960. During his amateur career, in which he won Golden Gloves titles in 1939 and 1940, he was undefeated, 85-0, with 69 knockouts, 40 of them in the first round.

My father's friend (I don't remember his name) was terrified, and evidently it showed. As they touched gloves before the fight began, Robinson leaned toward him and whispered, “Don't worry. I'm not going to hurt you. I'm just going to win.”

Robinson easily beat him on points and never hit him very hard.

The gay rights movement should emulate Robinson's strategy. We shouldn't want to hurt them. We should just want to win.

John Paul Stevens Professor of Law and Professor (by courtesy) of Political Science, Department of Philosophy Affiliated Faculty, Northwestern University.