On gay marriage, claiming 'religious liberty' dodges the real dispute
Americans have been balancing religious liberty and equality for a long time. Protections for LGBT Americans are consistent with the deal we struck.
Ideological opponents in the religious liberty and gay marriage debate seem to be talking past one another. The Week's Michael Brendan Dougherty's recent admonition — that liberals should care about both egalitarianism and cultural pluralism — is a good example.
It's not that he's wrong. Of course liberals should care about the equal rights of gay couples while also tolerating the religious beliefs of conservatives. Michael also helped clarify where conservatives are coming from: They see pluralism being overrun by egalitarianism, when a balance needs to be struck between those two imperatives.
And therein lies the problem. From the liberal perspective, our society already has struck that balance, and the rise of "religious liberty" concerns is a sudden attempt by conservatives to renege on the deal.
The Constitution promises freedom of religion and association. When it comes to the social ties we form, the groups and communities we belong to, and what ideas and beliefs we can argue for in public, the principles of pluralism and tolerance win hands down. The Constitution is very clear on such matters.
It's only when we narrow our focus to market relationships that things get more complicated. Here, Americans used the constitutional power to regulate commerce to carve out a purchase for egalitarianism in our shared economic life.
Pretty much no one in America is self-sufficient. We don't grow our own food or build or own houses and furniture. Instead, we specialize in particular trades and jobs, then use the money we get in return to buy the other things we need from people who specialize differently. That makes us all incredibly interdependent. Some people also have vastly more power in this system than others. Even a business owner who employs just a few people has significantly more economic leverage than the average citizen.
When one of us chooses not to engage in a market transaction — because we don't like the person's ethnicity or religious convictions, or we object to what use they'd put the good or service we're selling them — we can damage, maybe significantly, the lives of people around us. We also help re-entrench the economic consequences of historical injustices. So in the arena of the market, egalitarianism gains enough value to seriously contest with pluralism.
Yet even there, egalitarianism's advance is limited. The forms of discrimination not allowed by the law are only ones that made real historical differences in American life: racial discrimination and the oppression of women, among others. We also carved out exemptions to anti-discrimination law for churches in their internal hiring, even as they keep their tax exempt status — a compromise that's not actually necessitated by the Constitution or the value of separating church and state.
Anti-discrimination law was the agreement we all hashed out a long time ago as Americans to work through this conflict between egalitarianism and pluralism. Conservatives have just been caught off guard by the logical consequences of extending that social charter to protect LGBT Americans.
Conservatives want to prosecute this dispute on the rhetorical grounds of "religious liberty," which suggests a scale and sweep to the grievance that won't be assuaged by mere tweaks. The unspoken implication is that bringing anti-discrimination law to bear on private businesses was a mistake from the beginning, or that sexual orientation simply shouldn't be protected.
So far, no major politician or commentator outside of Rand Paul is willing to champion the former position. The Arizona reform that just failed tip-toed up to it. But even if it had passed, a judge would still have to decide that an anti-discrimination law both substantively burdened a person's exercise of religion, and that the law wasn't fulfilling a compelling government interest. Conservative politicians seem more comfortable with the latter position, suggesting that extending anti-discrimination law to sexual orientation would mean creating "special rights."
But that's a tough argument to square with the real history of persecution LGBT people went through in this country. Not to mention the massive popular support extending that protection enjoys, and the fact that we've already expanded the circle of inclusion to women, the disabled, religious minorities, and others. Were all those "special rights" as well?
The advantage of the "religious liberty" rhetoric is it implies that liberals are abandoning one of America's first principles. The reality is that many conservatives are merely unhappy with the balance the country is hashing out between two of those principles. That's a practical negotiation question, not a first-principles one. And there are practical arguments conservatives could make: that the framework we've been using to strike that balance has been flawed from the get-go, or that the historical experience of LGBT Americans doesn't merit our society's concern the way the experience of women, the disabled, or black Americans do.
But conservatives know how distant those claims would place them from the moral intuitions of most Americans. So it's not that conservatives don't have an argument. They just aren't willing to own its consequences when viewed in the cold light of day.