A right to be weird is a good reason to give religion special treatment

Proponents of special treatment for religion are increasingly drawn to the implausible claim that (what someone takes to be) divine commands should always supersede human ones. A better account would acknowledge that religion is only one among many profound human concerns. The recognition that there is an enormous variety of deep and valuable commitments undergirds the claims of both gay rights and religious freedom. These can only be protected one at a time, and that is a sufficient reason for singling out religion for special treatment.

Worsening the divisions that helped elect Trump

This controversy exacerbated the alienation of Religious Right from liberalism, and helped drive them to support Trump. It was part of the reason why Clinton lost the white Evangelical and Catholic votes so resoundingly, and thus the presidency. It reflects deeper antireligious tendencies on the Left. It facilitates Trump’s efforts to reshape not only American identity, but Christian identity.

Introduction

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 who have made such claims. 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. This is not a matter of abstract principle, and none of the constitutional claims work. This is an appropriate occasion for legislative negotiation. This book is the only systematic accounting of the interests that must be balanced in any decent compromise, in terms that both sides can recognize and appreciate. This book explains the basis of antidiscrimination law, including the complex idea of dignitary harm. It shows why even those who do not regard religion as important or valid nonetheless have good reasons to support religious liberty, and why those who regard religion as a value of overriding importance should nonetheless reject the extravagant power over nonbelievers that the Supreme Court has recently embraced. The book also proposes a specific solution to the problem: that religious exemptions be granted only to the few businesses that are willing to announce their compunctions and bear the costs of doing so—an approach makes room for America’s enormous variety of deeply held beliefs and ways of life.

Discrimination law can tolerate exceptions

Religious accommodations have been granted only when this can be done without defeating the purposes of the law. This chapter examines the purposes of antidiscrimination law. That body of law is an exception to the normal rule of contract at will. Generally, one may refuse to deal for any reason at all. Legislation is only necessary when discrimination is ubiquitous. The law can thus achieve its ends while excusing idiosyncratic dissenters. The harms that have been attributed to discrimination, such as damage to full citizenship status and dignitary harm, are carefully unpacked.

The racism analogy is misleading

Even if the racism analogy is morally sound, that conclusion cannot support the withholding of all accommodation. It is actually several different analogies. 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. There are important differences. Religious heterosexism is generally nonviolent. And unlike in 1964, when the Civil Rights Act was passed, religious claims can be accommodated without defeating the point of the law. Establishing a legitimate place for dissenters, in a gay-friendly legal regime, would actually be helpful in addressing some of the most pressing contemporary gay rights issues, notably youth homelessness.

But now they denounce it as a mere excuse for bigotry

A few high-profile struggles transformed the perception of religious liberty. Beginning as recently as 2014, the Left began to regard a few individuals who refused to facilitate same-sex weddings—wedding photographer Elaine Huguenin, Kentucky county clerk Kim Davis, baker Jack Phillips—as the paradigm for religious dissent. Soon the term came to be seen as an excuse for discrimination.

Liberals used to love religious freedom

The idea of religious liberty was, for a long time, uncontroversial common ground between right and left. The idea of a private sphere that government must respect—an idea at the core of the gay rights movement—has its roots in dissenting Protestantism. It became the basis for the practice of religious exemptions from generally applicable laws. As recently as 1993, Congress almost unanimously enacted a federal statute codifying that practice. That law continues to produce results that liberals admire, protecting prisoners from arbitrary treatment and religious minorities, notably Muslims, from discrimination. If you want to protect the right to be different, this is a good place to start.

There are many ways to compromise

This chapter considers the compromises that have been proposed: state-level religious freedom restoration acts, specific accommodations such as Mississippi’s law, various scholars’ proposals, and businesses announcing their views in advance and thus avoiding most conflicts with customers. It concludes that the best way to balance the various interests is to have such announcements trigger exemption from the law. The basic aim should be to accommodate religion without seriously harming identifiable third parties.

“Religion always wins” rules are bad for religious liberty

This chapter examines the First Amendment doctrine that the Supreme Court is now developing. Burwell v. Hobby Lobby, the Court’s most important recent decision on accommodation, is no victory for religious liberty. It replaces the sensible regime of balancing with a rule whereby religion will almost always be given special treatment, even if that means that nonadherents suffer enormous harm. If this is now to be the authoritative meaning of freedom of religion, then the consensus that once supported it will inevitably collapse. This chapter shows the destructive implications of the decision for the discrimination question—implications that have already been drawn by several federal courts.

Free speech principles are barely relevant

Some have claimed that accommodation is mandated by free speech. In the Masterpiece Cakeshop v. Colorado case, the Supreme Court was offered an impressive array of variations on this claim. Mostly they are bad arguments. Although merchants have the right to announce their disagreement with the law, speech principles cannot resolve the controversy. Free speech could be construed to protect businesses that produce expressive media, such as (some) photographers, but it can’t intelligibly be stretched to help others with equally pressing conscience claims, such as bakers. It thus addresses the issue in a morally arbitrary way.