One of the most poisonous areas of America’s political polarization is the conflict between the gay rights movement and the religious right. Each has some justification for viewing the other as an existential threat. Linda Greenhouse, the Pulitzer Prize-winning columnist for the New York Times, believes it is impossible to compromise. She is too easily discouraged.
In the New York Review of Books, she has been generous Calls my book, âRights of Homosexuals vs. Religious Freedom ?: The Unnecessary Conflictâ, âa novel and useful contribution to the discourse on LGBTQ rightsâ and pays tribute to âthe willingness of one of the Academy’s most prominent advocates for LGBTQ equality, the other side halfway there. âHowever, she questions whetherâ the concept of accommodation in America today is more than a noble thought experiment â.
Greenhouse doesn’t believe that LGBT equality advocates like you and me can achieve any modus vivendi with religious law. Some of the best organized elements, she notes, are dangerously anti-democratic and even theocratic, and promote a paranoid narrative of “complaint conservatism – the conservative belief that they are wrong to lose, even if they do win.”
My subtitle calls the conflict “unnecessary”. She replies, âNo need, perhaps, seen from ten thousand feet high. Here, ‘The Inevitable Conflict’ seems to be more precise. “
Very little of what happens in history is inevitable.
Religious law is not a monolith. In particular, their leaders have failed to control the moral beliefs or political behavior of their constituents. In fact, they lose on gay rights issues. A last Gallup poll reports that 70 percent of Americans support same-sex marriages, as does 55 percent of self-proclaimed Republicans. For Americans between the ages of 18 and 34, the figure is 84 percent. That last number must include many religious conservatives.
These leaders were desperate to re-elect Trump, who, she writes, “essentially turned the federal government’s political decision-making machinery over to the religious right.” But in 2020 they didn’t deliver. My book argues that Hillary ClintonHillary Diane Rodham ClintonLinda Greenhouse and the religious right-wing Biden meet with Merkel on the last official trip of the German head of state to Washington Ocasio-Cortez to decide before special elections for Turner in Ohio MORETheir lack of interest in reaching religious voters was a big reason Trump defeated them. To take on a prominent denomination, he received 81 percent of the white evangelical vote in 2016, but only 76 percent in 2020. Biden’s victories in Michigan and Georgia came mostly from surpasses Hillary Clinton under this demographic. These voters are in the game. It would be a mistake to give it up. One way to win the political conflict is to reduce the intensity of the cultural conflict.
Greenhouse obviously finds religious law pretty scary. But as a longtime gay rights advocate (I’m one of the lawyers who persuaded (to the Supreme Court that the prohibition of gender discrimination in Title VII prohibits discrimination against homosexuals), I have found that Conservative Christians view us as rather scary too. They fear that the law will treat them like racists and marginalize them in American society. You are right to worry: you may not be able to be a wedding vendor, counselor, social worker, or psychologist, or control the content or staffing of your own educational institutions. Your charities face denial of funding and licenses. Equality does not require it, and the cause of equality is not promoted by sympathetic news about cute Christian grandmothers threatened with financial ruin by lawsuits.
Many Americans believe that their religion teaches that marriage is inherently heterosexual and that homosexual sex is morally wrong, and also view Trump as an unchristian, lying, cruel tyrant who endangers American democracy and whose incompetence a large number of Killed Americans. You are caught between disgust for Trump and fear of the Democrats. It does not help to tell them that if they do not change their religious views they will be cursed as hateful fanatics. They must be offered an alternative vision of America that has a legitimate place for them. This is not just a requirement of political strategy. It is necessary if Americans want to live a life together. Polarization and alienation threaten the whole country, not just the Democratic Party.
Greenhouse doubts the feasibility of my suggestion that wedding sellers – bakers, florists, and the like – may be discriminated against if they are willing to bear the cost of publicly disclosing their discriminatory behavior. “It is easier to imagine that a jurisdiction that adopts such a proposal as law would be immediately greeted with a lawsuit contesting the duty of disclosure as a forced speech in violation of the First Amendment.”
Indeed, as my book notes, some of the Conservative Supreme Court justices have shown an unfortunate tendency to distort freedom of expression in order to bring victories to Conservative Christians. However, it is difficult to see how the court could stand a challenge to the first amendment against a mandatory disclosure rule without overriding any requirement for warnings on dangerous consumer products. I doubt they would go that far. (Well, maybe some of them, but I’m not counting five votes.)
I know many people of goodwill on both sides of this struggle who want it to end. A book like mine is always an exercise in speculation: a vision for living together that may or may not get a sufficient critical mass of the audience to try it out. Political proposals are like Broadway shows: you can’t know if you’re going to have a hit or a flop until you present them to an audience. The conflict will only be inevitable if we give up trying to end it.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of âHomosexual Rights vs. Religious Freedom? The unnecessary conflictâ (Oxford University Press, 2020). Follow him on Twitter @AndrewKoppelman.