Justice Kennedy's retirement marks the end of an era, but are we prepared for what comes next?
The struggle in American law and politics over same-sex marriage, which began in earnest in the 1990s, may be said in retrospect to have entered a new phase in 2009 and 2010. Those were the years when the state supreme court in Iowa and a federal district judge in California invoked the authority of constitutions to declare, first, that laws defining marriage as a relationship of one man and one woman reflected a distinctively “religious” understanding of marriage, and second, that such laws truly sprang from a kind of “animus” against gays and lesbians that was not merely blameworthy in itself but deprived such laws of any legitimate rational basis.
The conjunction of these two propositions is obvious: the age-old view of marriage as the conjugal union of husband and wife is “religious” in the sense of embodying a sectarian view, and a hateful sectarian view at that. Hence it cannot be constitutionally permissible to define marriage in law according to that view (actual constitutional provisions supporting this conclusion to be located and conscripted at a later time). The Iowa state decision of 2009 and the California federal court ruling of 2010 were the out-of-town tryouts for the 2015 Obergefell v. Hodges decision, in which five Supreme Court justices led by Justice Anthony Kennedy followed the same script to impose same-sex marriage on the entire country.
What, then, of people who cling to that view even after the laws reflecting it have fallen? As the advocates of same-sex marriage and LGBT rights made clear in every jurisdiction where they achieved victory, holdouts who resisted the new dispensation on marriage and “discrimination” would soon discover that their religious conscience provided them no safe harbor from legal coercion. On the contrary, their reliance on religious faith, as the source of their morality in interacting with others, would only paint a target on them.
The justices who dissented in Obergefell saw this coming with admirable clarity. As Chief Justice John Roberts sarcastically observed, “the majority graciously suggest[ed] that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage” but omitted that the Constitution “guarantees . . . the freedom to exercise religion.” (Emphasis in original.) Justice Clarence Thomas warned that since the decision for same-sex marriage was made by the Court, rather than by representatives who might have fashioned compromise measures, we could expect “ruinous consequences for religious liberty.” And Justice Samuel Alito foresaw a future in which religious believers would see their “rights of conscience” disregarded, feeling free only to “whisper their thoughts in the recesses of their homes” but not in public, where they would be “labeled as bigots and treated as such by governments, employers, and schools.”
That future is arriving now, faster in some places than others. And under the shadow of Obergefell, it is just as difficult as Justice Thomas expected it would be to reach compromises in which religious liberty is honored. So a volume like Debating Religious Liberty and Discrimination is very welcome for the light it sheds on the difficulties we now face.
Clearly intended for the college classroom, the book is organized in point-counterpoint fashion with main statements and replies on each side, after a brief common introduction. John Corvino, a philosophy professor and gay rights advocate, holds that discrimination against gays and lesbians should generally be unlawful, even if the “discrimination” consists only of a baker’s or florist’s unwillingness to offer his services to aid the celebration of a same-sex wedding. Political theorist Ryan T. Anderson and legal philosopher Sherif Girgis, seasoned participants in the marriage debate as well, argue against the extension of discrimination law to the LGBT category of persons, and in favor of a robust understanding of conscience-based exemption from any such extension that may prevail.
The result is a very thorough airing of the controversies now raging over same-sex marriage, “SOGI” (sexual orientation and gender identity) discrimination laws, and countervailing claims of religious freedom and individual conscience. Along the way the authors shed light as well on similar conflicts, such as claims to exemption from the contraceptive-abortifacient mandate of the U.S. Department of Health and Human Services, and the right of healthcare professionals not to participate in abortions or in surgical or clinical work involving homosexuals or the transgendered. But the core set of problems in view is the “cultural clashes post-Obergefell,” as Anderson and Girgis put it.
Among the matters clarified in this book is why religious conscience and freedom are so threatened in this new environment. The reason is that all the rhetorical advantages seem to be on the side of those who condemn discrimination and devalue religious liberty, while those on the other side must patiently labor to persuade readers even to take their view seriously. As Anderson and Girgis remark in their final reply, “Corvino’s approach has been dialectical,” whereas they have “tried to build up general principles to address the range of the challenges in a unified way.”
Another way to put it is that Corvino’s technique is primarily sophistic, while Anderson and Girgis are systematically, painstakingly philosophical. Contemplating the prospect of teaching college students with this book, I can anticipate two things.
First, even if their views were largely unformed before encountering this book, most students will be persuaded by Corvino to treat conscientious dissent from the latest strictures against discrimination as presumptively the infliction of a great “dignitary harm” on gays and lesbians. But that is because Corvino’s contribution, so smoothly written and approachably affable, can be readily taken on board, without much need to think things through in a serious way, especially if readers regard strongly countercultural religious views as alien to their own experience.
But second, I would expect the very best students to be drawn to Anderson and Girgis, even if their own prejudices ran the other way beforehand. For many students, the Anderson-Girgis side will seem dense with complicated, even opaque, arguments. The two write clearly enough, but readers will need an attention span capable of holding a foundational thought in the mind while layer after layer of reasoning is laid atop it, until a whole structure has been built. Those who are up to the challenge of building a searchlight of principle from the ground up will have the entire field of controversy illuminated for them, even if they resist the conclusions that Anderson and Girgis draw.
Sophistry is a serious charge to lodge against Corvino, so here is one instance. Anderson and Girgis say a baker or florist who serves gay and lesbian customers in all other respects, but who declines to do custom work for a same-sex wedding, cannot be automatically convicted of discrimination on the basis of the rejected couple’s identity, but may reasonably be understood to have acted on a religiously informed view of what marriage is—and that view has nothing to do with others’ sexual orientation. The refusal can, in other words, be distinguished from the putatively analogous situation of a refusal to serve an interracial wedding. In the latter case, nothing could possibly animate the refusal but the race of one of the spouses; it is therefore an instance of invidious discrimination. The former, which is not grounded in unfair assumptions about the moral worth of others (either their status or their conduct), is not.
In comparing these cases, Corvino treats the status/conduct distinction as his adversaries’ own (though it is not), and then collapses it by a sleight of hand. “Although race may in some sense be an immutable non-behavioral characteristic,” Corvino writes, “racism is all about chosen behavior.” Racists “object to conduct” by the objects of their bigotry—blacks moving into their neighborhoods, blacks marrying whites. The act of discriminating is, as well, “most certainly a chosen behavior,” he observes. But on what basis do racists discriminate, and what is it about the behavior of the despised race that upsets them? In fact they always focus on the mere question of who counts—a judgment about the doers, not about the essential meaning of the thing done. It turns out that, in insisting that racism is really as much about conduct as about status, Corvino is only changing the subject.
What do we mean by “discrimination” as a bad thing? How much of it can a society devoted to equality legislate against, and how much of it must be left alone by the law if we are to keep a free society? What costs are associated with the choices we make here, and what can be better achieved by market forces and social pressures? What is the good of religion, and what is its connection to personal integrity? In what ways are governments justly permitted to burden our pursuit of these goods? How should those close cases be decided in which it appears that one party (claiming a conscientious exemption) or the other (with a claim of having been discriminated against) is apparently going to suffer a harm of some kind?
Anderson and Girgis relentlessly examine these matters from every angle, presenting the strongest arguments for each view as they proceed. Thus they pay their readers the high compliment of taking seriously both their minds and their deepest concerns and commitments. The same cannot be said of Corvino. It is hard to tell whether he wishes to avoid the strongest elements of his interlocutors’ argument, or bypasses them from a failure of understanding.
As Anderson and Girgis observe, for instance, Corvino “repeatedly misunderstands” the case for religion as intrinsically valuable in people’s lives, treating it instead as wholly instrumental. He also treats the case for SOGI laws, and for their application to virtually every transaction, as a starting point for the debate that really needs no defense. In this he may simply be counting on most readers’ prejudice. Granted, for the average student in the average college classroom today, that may be enough. Precisely there is our largest stumbling block.