Too Much and Not Enough: A Commentary on Gay Rights vs. Religious Liberty? The Unnecessary Conflict by Andrew Koppelman

For the symposium on Andrew Koppelman, Gay Rights vs Religious Liberty? The Unnecessary Conflict (Oxford University Press, 2020).

Nan D. Hunter

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 debates.

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 Christianity?

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 ndh5@georgetown.edu.