In March of 2018, Tim Schultz walked us through recent events that show there is a chance for a “both-and” solution to the culture war between LGBT rights and religious freedom.
— This article previously published in The Hill by Tim Schultz
When seen through the prism of the culture wars, conventional wisdom has typically held that the courts will decide the big questions about religious freedom and LGBT rights. So far, that hasn’t been true.
For example, many LGBT rights advocates assumed the landmark Obergefell marriage decision was just the beginning. They were confident Justice Anthony Kennedy, in particular, would continue to grant victory to their highest policy priorities, like holding that existing civil rights bans on sex discrimination already extend to sexual orientation and gender identity (without the need to persuade legislators).
But during oral arguments for Masterpiece Cakeshop v. Colorado Civil Rights Commission, however, Justice Kennedy generally expressed sympathy for cake baker Jack Phillips’ position, noting that “tolerance is most meaningful when it is mutual,” to the alarm of left-leaning activists. With less fanfare (but arguably more legal significance), the Supreme Court recently declined to hear a Georgia case involving allegations of despicable discrimination against lesbian security guard Jameka Evans, despite the petitions of the nation’s leading LGBT rights litigators and a who’s who of corporate America.
But this surprising turn of events is hardly the legal or cultural reversal that should cause social conservatives to celebrate. Broad religious freedom laws that promise “winner take all” (such as the First Amendment Defense Act) have gained little traction even with unified Republican control of the federal government and have had little success in even supermajority Republican state legislatures.
President Trump’s recent executive actions conspicuously failed to include broad religious freedom guarantees in the LGBT rights context. Important legal cases remain, including Zarda v. Altitude Express, in which the full Second Circuit Court of Appeals just ruled that the definition of sex discrimination includes sexual orientation.
Observing the stalemate status quo, Brookings Institution scholar Jonathan Rauch observes that both sides are aiming to “take all the marbles and leave the other side with nothing.” In his essay“Nondiscrimination for All” in the conservative policy journal National Affairs, Rauch (a self-described gay atheist) argues that such a posture manages to let down members of religious communities and the LGBT community at the same time. Contrary to the culture war narrative, these are not mutually exclusive groups.
Instead, Rauch argues for nondiscrimination law that broadly accommodates religion. Unlike race, Rauch points out that religions almost all include core teachings about sexual boundaries.
Nondiscrimination laws are now often thought of as “zero tolerance measures.” That recent invention doesn’t square with the nuanced balance that is already very much a part of the broad array of civil rights laws in the context of religion, disability, and even sexual orientation.
We sometimes forget that when blue state legislatures changed marriage laws they unanimously also added new protections for religious freedom.
A win-win vision for religious freedom and LGBT rights is not the outlier view of a few Beltway intellectuals. It matches the rough “both-and” consensus of the most careful polling on the subject.