Over the past several years, bakers, florists, photographers, and marriage counselors who are religiously opposed to same-sex marriage have taken part in highly publicized court cases. Thus far, courts have declined to accommodate the religious objectors, leading some to perceive an alarming retreat from the nation’s longstanding commitment to religious liberty.
Progressive critics are typically dismissive of these concerns. For the progressives, the current controversies leave a sense of déjà vu: they are simply reruns of the civil rights conflicts of the 1950s and ’60s. We know how those conflicts worked out then, and hence how such conflicts ought to work out today. In this spirit, a historian friend told me recently that he hasn’t studied the current cases closely and doesn’t see the need to study them. “They’re just the old ‘lunch counter’ conflicts all over again, aren’t they?”
The assumption that current controversies are basically reenactments of the civil rights struggles exerts formidable rhetorical power. In an age in which shared moral moorings are scarce, one of the few propositions that can claim any sort of consensus among Americans is that “Jim Crow” segregation was a national disgrace—and that the Civil Rights movement that ended that unjust regime was a manifestation of national righteousness. So if the Christian bakers and florists and photographers who object to celebrating same-sex weddings today are like the segregationist merchants who excluded black customers from their lunch counters, the outcome of the current controversies seems foreordained.
But are the religious objectors truly the heirs of the lunch counter segregationists? Are the activists and academics who would force a Christian photographer or florist to participate in celebrating a same-sex wedding the legitimate successors to the civil rights activists of the 1960s?
It’s easy to see why contemporary progressives would claim such a revered ancestry. Like their ostensible forebears, progressives march proudly under the banner of “equality” and “nondiscrimination.” Indeed, the laws they seek to enforce against religious traditionalists may be basically the same antidiscrimination statutes traceable back to the ’60s, amended or interpreted now to include sexual orientation among the factors that cannot be used in hiring or commercial decisions.
Looked at another way, though, the respective lines of descent are not so clear. Indeed, they may be inverted: in many ways, the so-called progressives are comparable to the lunch-counter segregationists, and the proponents of religious exemptions are the heirs of the civil rights activists.
Dealing with Diversity: Three Strategies
To see how this is so, consider the problem from a more detached perspective. Both the civil rights struggles of the last century and the current conflicts over same-sex marriage are episodes in the nation’s enduring effort to address the challenges of diversity. Americans are diverse in all sorts of ways—racially, physically, morally, religiously, and so on. These differences can be divisive. And so the nation has accordingly needed to devise strategies for dealing with them.
Speaking generally, we might describe three basic strategies that have from time to time been used in dealing with the nation’s various diversities. Suppressionist or eliminationist strategies address diversity by seeking to eliminate differences. Segregationist strategies attempt to reduce conflict by directing the differently composed constituencies into different spheres or neighborhoods. People would thus retain their differences but would live them out in separate domains. Conversely, inclusionist strategies attempt to accept and respect the differences that have proven divisive, to accommodate those diversities, and to find or devise ways in which different people can live and work together without sacrificing their distinctive characteristics, identities, or commitments.
All of these strategies have been employed in the American effort to deal with diversity. It would be a mistake to suppose that any one of them is universally to be preferred. “Suppression” has an ominous tone, to be sure, which it has no doubt deserved when employed with respect to, say, racial, religious, or political differences. Still, although “suppression” might not seem the best word, if differences based on, say, particular physical disabilities (like blindness) could be eliminated by advances in medicine, that might be an attractive way of addressing this sort of diversity.
“Segregation” likewise has a well-earned negative connotation. But although racially segregated restrooms were a manifestation of deep injustice, maintaining separate restrooms for men and women has, until recently, been thought by progressives and traditionalists alike to be an appropriate response to sexual difference.
For the most part, though, and in contrast to other countries and cultures, in America inclusionist strategies have most often claimed pride of place. The cherished idea has been that diversity and pluralism, although sometimes divisive, are on the whole good things: the nation is stronger, culturally richer, morally more mature when it includes people of various races, ethnic backgrounds, religious faiths, moral commitments, and perspectives. Ideally, such differences should be preserved and respected, not suppressed or channeled into separate domains in order to minimize contact. The effort has been to devise ways to accommodate these differences, helping people to live and work together without having to deny or conceal their distinctive identities and commitments.
Consider the massive effort to address differences based on physical disabilities. Such disabilities can be a source of social difficulties, resentments, and discomfort. At least since the mid-twentieth century, however, the dominant effort has been to find ways (sometimes very costly ones) to permit those with such disabilities to participate in education and employment along with everyone else, as the individuals they are—to integrate the physically disabled into the public project, so to speak.
Integration and Segregation, Both Racial and Religious
In this respect, the Civil Rights movement of the mid-twentieth century can be appreciated as a sustained and heroic effort to repudiate the segregationist strategy that had previously been used to deal with racial diversity and to replace it with a self-consciously inclusionist strategy. No more “separate but equal” schools. No more separate sections of the bus or lunch counter. From now on, Americans of all races would all study and work and eat together.
Sometimes this effort in inclusion consisted merely of discarding or breaking down older laws and customs grounded in the segregationist strategy. Sometimes the effort adopted more creative and affirmative measures, such as special programs calculated to accommodate racial minorities and bring them into the academy and the economy. These measures can be controversial, to be sure. The point here is simply that they have reflected a commitment to an inclusive strategy for dealing with racial diversity.
This brings us back to the current conflicts between antidiscrimination laws and religious objectors committed to traditional understandings of marriage.
In itself, the modern campaign for gay rights has been primarily inclusive in its aims. The goal has been to allow people who identify as LGBT to participate in education and employment without having to deny or conceal their sexual or gender orientation. In that respect, the movement can plausibly claim to be continuous with earlier civil rights efforts. When LGBT activists insist on forcing a Christian florist or photographer to join in celebrating a same-sex wedding, however, they abandon the inclusionist project in favor of a strategy that is more accurately described as either suppressionist or segregationist.
Perhaps progressives hope and expect that, under the heavy weight of the law, traditionalists will abandon their religious conviction that sexual relations should be confined to marriage between a man and a woman. If that is the expectation, then the project would appear to be one in suppression or elimination: disagreements about marriage and sexuality should be eliminated by using law to make one side disappear.
More commonly, though, what we hear from the progressive side is that the Christian florist and photographer and marriage counselor are still free to retain their private religious convictions about marriage. They simply cannot act on those convictions while carrying on the business of florist or photographer or counselor. Such religious commitments should be left behind when the believer enters the public square. If a believer is unwilling or unable to make that sacrifice, then she should stay at home or find some other line of work.
This position is overtly segregationist in its strategy for dealing with religious diversity. Those who take this view are analogous to the 1960s segregationist who said, “Of course there’s a place for you: it just isn’t here (in this school, or this section of the bus, or this end of the lunch counter).” In that respect, it is the contemporary progressive, not the Christian florist or photographer, who is the faithful heir of Jim Crow.
By the same token, those who want to enforce antidiscrimination laws against traditionalist Christian merchants on the understanding that they should only practice their faith in private are similar to the traditionalist who insists that gays and lesbians should be free to live as they like in private, but that homosexuality has no place in the public domain. Both positions invoke the public-private distinction in behalf of a strategy of segregating potentially divisive differences.
An Inclusive America?
Of course, noticing these similarities does not solve the problem of conflicts between antidiscrimination laws and religious objectors or prescribe any particular resolution to the question of religious exemptions. The challenge of reconciling our various differences in a vibrant, diverse, inclusive American project has never been an easy one, and our current situation is no exception. Religious exemptions aim to include and integrate, and they probably figure in any serious and sincere effort at inclusion. But they are surely not the only or the last word on the subject.
The modest but nonetheless important point I am trying to make is simply this: the all too common progressive attitude of dismissing concerns about religious liberty by invoking the legacy and supposed lessons of the Civil Rights movement is unfortunate and unwarranted. And, ironically, it is the opposite of “progressive.” As long as that attitude remains pervasive, there is little chance of mutual deliberation or meaningful progress in devising means of genuine inclusiveness.
So to the progressive who piously wraps himself in the mantle of the Civil Rights movement and compares the Christian florist or photographer or baker to the lunch-counter segregationist of the last century, the proper response is: “Don’t be so smug. When it comes to people of faith, you’re the one who is trying to keep the lunch counter segregated.”
Steven Smith is Professor of Law at the University of San Diego.