In the summer of 2017, Jonathan Rauch wrote a compelling case for why we can and should reconcile LGBTQ rights with religious freedom. Jonathan is a prominent author and journalist, and is as a Senior Fellow at The Brookings Institution.
— This article previously published in National Affairs by Jonathan Rauch
In the months before the 2016 presidential election, many advocates of gay rights and many advocates of religious liberty were convinced that an undesirable election result could present an existential threat to their ways of life. And in the days following election night, many activists for gay rights feared that their victories of the last decade might be wiped away with a stroke of the presidential pen.
But the election of Donald Trump is very unlikely to result in a dramatic change in the status of gay Americans — or in a dramatic victory for the religious-liberty caucus, despite the outsized influence of the Supreme Court. The same would have been true if Hillary Clinton had won the presidency. The truth is that the argument over gay rights and religious liberty was never going to be settled in a single election. To see why, consider two bills that went before the last Congress.
The Equality Act would have granted LGBT Americans — whom I’ll interchangeably shorthand as “gay,” with no disrespect or exclusion implied or intended — protection from housing, employment, and public-accommodations discrimination under federal law, something they lack at present. It was championed by Democrats and liberals. The First Amendment Defense Act, supported by Republicans and conservatives, would have pre-emptively shielded those who object to or discriminate against same-sex marriages (whether on religious or moral grounds) from any federal sanction or disallowance of benefit.
The supporters of each bill came from opposite corners, but the two bills had something in common: Each tried to take all the marbles and leave the other side with nothing (or as little as possible). The Equality Act included a provision revoking any protection which religious objectors might enjoy under the Religious Freedom Restoration Act. The First Amendment Defense Act protected religious objectors from discrimination while leaving gay people wholly unprotected under federal law.
If these bills were opening positions in a negotiation, then what should ultimately happen is legislative bargaining leading to the obvious compromise — protections for gay people plus exemptions for religious objectors. Such a solution is possible, of course, but compromise is unlikely, in part because the bills also have something else in common: Both seem to be based on moral conviction, and not merely strategic positioning. In that respect, they are emblematic of an unfortunate development: A debate in which a few years ago there seemed to be fairly good prospects for reasonable accommodations has hardened into legal and political trench warfare.
That is not to say that a compromise based on reasonable accommodations is impossible. A widely noted 2015 deal in Utah demonstrated that conciliation is still politically possible and socially ennobling. The polarization and backlash and general nastiness following upon one-sided mini-RFRAs and bathroom bills in places like Indiana and North Carolina demonstrated that the absolutist path is politically costly and socially divisive.
To get past the nastiness to a reasonable compromise, we need to understand where we are, and to do that we need to talk about an elephant in the room. We need to talk about what’s wrong with the way most Americans think about nondiscrimination.
Specifically, we’ll have to move past the absolutist, myth-based model of nondiscrimination and toward a pluralist, reality-based understanding. But first we need to understand the current terms of the debate.
TO LIVE THEIR FAITH
I should begin by saying that I start with a disposition that is protective of religious liberty — a disposition that is far from universal in the world of gay-rights advocacy. I am gay, and an atheist, and I disagree with most of what religious conservatives have had to say about gay equality and same-sex marriage. But my respect for the First Amendment’s unique protectiveness of religion, and also for the unique social centrality and sensitivity of religion, strongly inclines me to find ways to allow religion to go on about its business whenever possible.
I also accept that human sexuality is part and parcel of the theologies of many religions (in a way that, say, race is not). And, to avoid subjecting religious individuals and faiths to public inquisitions, I believe we should generally treat religious objections as sincere and genuine, at least as far as law and public policy are concerned. Accepting these premises leads to the reasonable conclusion that religious people and institutions have a legitimate and well-founded claim to be cut some slack by law and society, even if they sometimes use that slack to behave in a way that strikes others (including me) as intolerant and hurtful.
Many gay people, however, don’t share these assumptions. Instead, they look at religious objectors and see a desire to discriminate in the name of religion, and to leverage religion to obtain an explicit “license to discriminate.” To many of my gay friends, this is not about “live and let live”; it is an aggressive effort to deny LGBT people the legal protections and social equality that religious people already enjoy and take for granted.
Unfortunately, over the past several years, the words and deeds of many on the religious-rights side have done nothing to allay such suspicions. To the contrary, some religious-liberty advocates have been quite explicit about their desire and intent to discriminate, at least against gay couples if not necessarily against gay individuals — and to do so even in commercial environments that advertise themselves as open to all comers and that seem, facially, remote from any kind of religious venue or activity.
The LGBT community thus looks with dismay and shock upon Mississippi’s very broad religious-protection law, which gave religious people exemptions from anti-discrimination laws that did not in fact exist. (It was struck down by a federal district court.) There was a great deal of that kind of “heads I win, tails you lose” legislating in the wake of the Supreme Court’s gay-marriage decision in Obergefell v. Hodges in 2015.
In some cases, advocates of such measures made it explicit that their goal was not just to defend religion but to resist and ultimately revoke same-sex marriage, using salami-slicing tactics similar to those of the pro-life movement. They have been honest about this. Ryan Anderson of the Heritage Foundation put his cards on the table in a meeting at Brigham Young University: According to the Deseret News, Anderson explicitly recommended that traditional-marriage supporters borrow the strategies of the pro-life movement to make slow and steady progress against the Obergefell ruling.
Same-sex marriage has thus been the leading catalyst of conflict. Bakers, florists, and photographers have been sued and sanctioned for turning down same-sex wedding business. Mom-and-pop companies like Oregon’s Sweet Cakes by Melissa and New Mexico’s Elane Photography have become nationally famous, or infamous, for turning away gay couples.
It’s important to remember, though, that same-sex marriage is only the most prominent aspect of a multifaceted conflict. Some cases involve homosexuality as such, not marriage per se. For example, ChristianMingle.com recently settled a lawsuit by agreeing to allow searches for same-sex matches. In Michigan, a pediatrician refused to treat a baby with two moms, telling the parents, “After much prayer…I felt that I would not be able to develop the personal patient-doctor relationship that I normally do with my patients.”
Moreover, the claims of the religious nondiscrimination movement extend far beyond sexual orientation and gender identity. The Hobby Lobby and Little Sisters of the Poor cases involved contraception, for example. Albert Mohler, the intelligent and influential president of the Southern Baptist Theological Seminary, writing in July of 2016, sees the conflict as implicating the entire sexual revolution, not just the LGBT piece of it: “[T]he conflict of liberties means that the new moral regime, with the backing of the courts and the regulatory state, will prioritize erotic liberty over religious liberty.”
Given the potentially far-reaching nature of this conflict, it would be encouraging if the modal religious leaders were trying to ratchet down the rhetoric and the stakes or were otherwise playing an emollient role. Unfortunately, that’s not the case. Instead, we’re often told we are on the brink of a war on religion, a vast apocalyptic battle. Mohler warns us that no person of faith, anywhere, is safe: “The religious liberty challenge we now face consigns every believer, every religious institution, and every congregation in the arena of conflict where erotic liberty and religious liberty now clash” (emphasis added).
Virginia state delegate C. Todd Gilbert inflated the stakes even further when he spoke in support of a state version of FADA: “The activists who pursue same-sex marriage…are not satisfied with equality and they will not be satisfied until people of faith are driven out of this discourse, are made to cower, are made to be in fear of speaking their minds, of living up to their deeply held religious beliefs. They want us driven out.” One of my own Catholic acquaintances recently asked me, in agonized and angry tones, “How much longer am I going to be able to live in this country before someone makes it impossible for me to raise my kids in my faith or go to the schools they go to?”
I don’t doubt his sincerity. But “They want us driven out” is not only wildly inaccurate — it is the sort of hysterical talk one hears in broken and violent societies. Though those who invoke it may regard their posture as defensive, their hysteria reframes just about any imaginable compromise as an act of cultural suicide. This is, to put it mildly, very unhelpful.
Meanwhile, at both the state and federal levels, the religious-liberty movement has generally (though not universally) drawn hard lines against anti-discrimination protections for LGBT people. Such intransigence cannot be strategically wise. Inasmuch as any politically viable deal on nondiscrimination would need to benefit both sides, it would need to include anti-discrimination protections for gay people. Because the culture is growing more pro-gay and more anti-discrimination by the day, when religious activists and politicians rule out any such protections — and, in fact, revoke or pre-emptively block them — they effectively adopt the Palestinian bargaining strategy of holding out for a worse deal.
Many of the religious side’s specific objections to anti-discrimination protections for LGBT people are tenuous, in my view. And yet, religious communities aren’t irrational in their worry about a chain reaction that could result in their being cast out of polite society. They make a challenging argument, which goes like this: Anti-discrimination laws establish sexual orientation as a protected category — like race. When such laws gain wide adoption and acceptance, those whose religious beliefs distinguish morally or theologically between homosexuality and heterosexuality could be treated in law, and also in society, as being like racists. Once that happens, religious teaching and observance will be relentlessly hounded from the public square.
It is important to see that this argument is rooted in assumptions not about gay rights as such but about nondiscrimination. In effect, it says, “In today’s America, nondiscrimination is not just a slippery slope but a slippery cliff, an all-or-nothing proposition. So we can’t budge an inch toward protecting LGBT people from discrimination without losing everything — even if we wish we could.” In other words, the claim is that, like it or not, nondiscrimination has become a social principle that militates against compromise.
TRUE TO THEMSELVES
Unfortunately, on the gay-rights side of the debate, there has been something of a parallel evolution toward absolutism.
In 2010, in the prominent gay magazine The Advocate, I published an essay arguing for a conciliatory attitude toward religious-liberty claims. “[T]he smart approach,” I said, “is to bend toward accommodation, not away from it, whenever we can live with the costs.” One reason was legal: It’s best not to be on the wrong side of the First Amendment and religious liberty. Another reason was political: Reasonable accommodations will speed public acceptance of LGBT equality at an acceptable and rapidly declining cost to gay people. The most important reason, though, was moral: