Andrew Koppelman is climbing out of the trenches. In his new book, Gay Rights vs. Religious Liberty? (observe the question mark), he requests a cease-fire in the conflict between LGBT-identity claims and founding civil liberties such as religion and speech. His book deserves careful consideration.
Almost alone among those from his side, Koppelman has for years emerged regularly for good-faith engagement with his opponents. His new book is in character. Koppelman models how to engage well in productive, civil discourse about contentious issues. His book is particularly welcome in our polarized time.
Public Discourse readers are not Koppelman’s primary audience. He calls over his shoulder, imploring those behind him in the battle-line to emerge and meet their opponents face to face. He offers his side both principled and pragmatic motivations. As a matter of principle, the Left used to be liberal. Koppelman reminds his fellow Leftists that they recently supported religious liberty, even for groups with traditional sexual ethics, such as orthodox Jews and Muslims. Pragmatically, Koppelman plausibly argues that the Left’s recent, no-prisoner tactics helped cause Trump’s election as President (and could do so again).
This two-part review-essay of Koppelman’s book emphasizes my lingering concerns and points of disagreement with him, though the book moves a long way toward mutual understanding. My goal is to move the conversation forward in a productive way, without papering over differences. But I am grateful for Koppelman’s civility and good will, and I point out some of his important concessions and insights along the way.
In this book, Koppelman focuses on the so-called cake wars, conflicts involving conscientious wedding vendors which pit LGBT identity claims against civil liberties such as free expression, free exercise of religion, and property rights. He has less to say about other fronts in the conflict, such as disputes over transgender identities, parental rights to decide what children will be taught about sexuality, and the liberty of religious adoption services, schools, universities, and employers. And he does not propose resolutions to those disputes.
As I explain in more detail tomorrow, Koppelman understands discrimination laws to prohibit conduct that results in inequalities, dignitary harms, and other disparate effects. So, he would extend public accommodations rules to cover conscientious business owners who do not discriminate because of another person’s sexual orientation—intentionally—but whose conscientious refusal to affirm what they believe to be a falsehood about marriage and sexuality is perceived as a denigration of LGBT customers. Thus, he would require any religious owners who want to avoid liability to seek an exemption from the law.
Nevertheless, he is open to compromise. He wants freedom for everyone on the same terms and admirably wants the law to “authorize conservative Christians to come out of the closet.” He rejects the notion, pervasive at the Founding, that religious liberty is unique because justified by a higher duty to God. He worries (as many do) that compromise must entail either judicial balancing tests that will satisfy no one or widespread religious exemptions that will result in civil lawlessness. But as I discuss tomorrow, the Founding generation, and generations of Americans after them, really did (as many still do) believe in natural law and took it for granted that some legal wrongs are mala in se, never to be tolerated in law or fact, while others are mala prohibita, whose specification in law can tolerate any number of exceptions, exemptions, and qualifications. Keeping that distinction in mind would help us resolve many conflicts consistent with principles of legal justice. But Koppelman does not consider it.
A Right to Be Weird?
Instead, Koppelman settles on what he calls (following Hunter S. Thompson) a “right to be weird.” This right is the best way to understand religious liberty, because “‘religion’ is a term without a referent.” Religious liberty should include all personal interests that are as commensurably good as the Christian religion. This means that “each person should be free to find his own way to salvation.”
Making this right operational is difficult. After surveying a number of proposed compromises and considering their merits, Koppelman makes a proposal of his own. He would extend exemptions to vendors who post prior notice of their religious scruples for the public to see before they enter or call the store.
Surely, Koppelman is familiar with the ugly history of governments that required religious business owners to place religious symbols on their store fronts. And he concedes that vendors who post public notices of their religious and moral convictions about marriage are likely to suffer harassment as a result. His proposal will do little to quiet the fears of those who perceive in LGBT activism authoritarian ambitions. But leave that aside. His proposal raises other questions that seem not to have occurred to him.
Most obviously, why is he singling out traditional religious people? Most likely, it is because he is trying to address the conflicts that we actually have. But that we have some conflicts and not others reveals important truths about the people involved, truths to which Koppelman seems curiously blind.
Imagine a man, Joe, who has left behind a life of unwanted same-sex attraction and who intends to host a ceremony celebrating his liberation as a Christian (let’s say a Southern Baptist). Joe asks a printing company to fashion a banner that reads, “Sinner redeemed by the blood of the Lamb.” He asks a baker in his neighborhood to bake a cake, explaining that it’s for a party celebrating his freedom from an LGBT lifestyle. The printer and the baker find these messages offensive. It turns out that these businesses are LGBT-owned. They have posted no prior, public notice of their refusal to serve Christian redemption ceremonies. But exercising their property rights, they refuse to provide the requested goods.
Or consider a less hypothetical case. A Christian mother walks into a Planned Parenthood clinic seeking a pregnancy test and ultrasound. She explains that she does not want an abortion; her religious conscience forbids it. The clinic has posted no public notice of its refusal to serve pro-lifers. Indeed, Planned Parenthood frequently and loudly declares that it provides maternal health services other than abortion. But the clinic, exercising its property rights, refuses to provide the requested services if this mother is not open to obtaining an abortion. (Planned Parenthood actually refuses to provide maternal health services on those grounds.)
Why Not Just Live and Let Live?
Why are courts and discrimination commissions not flooded with complaints by customers who are refused service in these ways? It isn’t because these conflicts are implausible or unlikely. Faithful Christians purchase goods bearing Gospel messages every day, and Christian women seek maternal health services, just as non-Christians do. Most Christians understand the Gospel message and their pro-life convictions to be central to their personal and religious identities. Many Americans object to those messages and convictions on moral grounds, and reject the core tenets of Christian identity. All the ingredients for conflict are present.
Also, the law provides Christians protection from discrimination in places of public accommodation. On Koppelman’s understanding of discrimination law—its purposes and its meaning—refusals to provide to these Christians the goods they seek would constitute discrimination because of religion, a prohibited act under state and federal anti-discrimination laws. According to Koppelman, what matters is not the business owner’s reasons for acting but rather the discriminatory effect of their actions, which is to exclude Christians.
The most likely explanation for the lack of such cases is that Christians are not running around demanding that avowedly secular and LGBT-identifying business owners implicitly or expressly affirm Christian messages and Christian identities. Christians have spent decades building their own businesses and non-profits to provide goods and services bearing Christian messages. They also have built hospitals, health-care providers, and crisis pregnancy centers to serve mothers in need (Christian and non-Christian).
Furthermore, the Christian view is that sin and redemption are both true whether or not anyone else affirms them. The Christian’s self-understanding as a sinner who is freed from slavery to sin by the grace of God does not depend on affirmation or agreement by non-Christians. So, Christians do not need anyone else to affirm the Gospel, nor to agree with their pro-life convictions, in order to sustain their equal rights or dignity.
Contrast Koppelman’s fellow trench warfare wagers, such as Elizabeth Sepper, who want to force conscientious business owners to provide goods and services for celebration of same-sex unions. They reason that same-sex couples are entitled to “universal recognition of their equal status as married or marrying,” and if any business owner were permitted to refuse to affirm the new definition of marriage, then “third-party recognition would no longer be automatic.” This expression emanates from the same group of cloistered elites who find it unproblematic to require religious business owners to identity their minority religion with signs.
Koppelman thinks that such activists are “right” to insist that conscientious business owners are attacking the citizenship of LGBT-identifying people, but he wants his fellow sexual-identity activists to see that “citizenship is not so fragile” as they suppose. He suspects that “many gay people,” though irritated by Christian business owners who refuse to go along with the new sexual orthodoxy, nevertheless “shrug them off and move on.” If only the activists who continue to harass Christian bakers and pizzeria owners were so secure in their identity and so tolerant of others. As we saw during Indiana’s RFRA debate, LGBT activists are willing to destroy a Christian-owned business and the social lives of its proprietors with implausible hypotheticals about catering same-sex weddings with pizzas.
If Koppelman were consistent then he would be equally concerned about business owners who refuse goods and services to Christians for moral reasons. And he should insist that secular- and LGBT-owned businesses must post public refusals to provide any services that might condone the idea of sin, or the Gospel, in order to be exempt from laws that prohibit religious discrimination. But of course, that would be unjust and silly.
Less Public Law and More Recourse to Common Law Institutions
Koppelman and other LGBT-identity activists surely are correct that a same-sex couple must find it humiliating and embarrassing to be turned away from a wedding vendor. He is also right that the costs of using public law to remedy such indignities are significant, especially for the conscientious owners whose livelihoods are at stake. On the other hand, it is theoretically possible that some business owner someday might discriminate against a same-sex couple because they are homosexual, or against the faithful because of their religion. So, what to do?
Not what we are now doing. Discrimination commissions, which are handling these cases at present, have proven to be just as arbitrary as extra-judicial standing commissions have often proven to be throughout the history of Anglo-American law. They are making up facts in direct contravention of uncontested evidence, going out of their way to disparage religious people, and in general carrying on without due regard for law.
Koppelman is correct to suggest that these cases should be decided each on its own terms. And his affinity for legislative compromise over the abstractions of judicial supremacy is commendable. But the general rules of public law are too blunt an instrument. What we need is an institution that is capable of resolving these fraught disputes on a case-by-case basis with attention to law and conventional morality and with sensitivity to the meanings, local mores, and relationships within which the conflicts arise.
Fortunately, the common law provides what is needed: the real property license, the services contract, and when conflict is unavoidable, the civil jury. If commissioners and appellate judges would stop usurping the jurisdiction of those norms and institutions, powers that belong to the parties and their fellow citizens on the jury, then the two sides need not be entrenched.
No one has a right to require someone else to serve them. Public accommodation licenses and service contracts are carved out of a business owner’s general liberty. The owner consents to a license when he or she opens to the public. In most cases, the implied terms of licenses and agreements can be discerned from the business’s purposes. No one would think it reasonable to demand a right to hold a wedding in a barber shop or furniture store (nor, in most towns, in a pizzeria).
Some cases may not be that clear. To avoid ambiguity, and as a matter of courtesy, an owner who is unwilling to provide certain services or to ratify certain conduct might post notice. That much Koppelman gets right. But he fails to acknowledge that clarifying the scope of a license is a matter of business judgment. A generally-applicable legal requirement that owners state their moral views in advance would generate more injustice than it would redress.
Owners can assess the costs and benefits of signaling their religious and moral views, including the risk that they will have to explain their moral reasoning to a jury of their peers in a legal dispute. The jury is the institution for the job. Juries need not decide every case the same way, and so can resolve disputes without zero-sum political calculations. Some grounds for refusing service are per se unreasonable, as a matter of law. Race is the central case. But most cases are not like racial discrimination.
A jury trial brings American citizens face to face with fellow citizens to discuss cases and controversies about the law. Before they enter the courtroom, everyone must lay down their arms. And when settled in their seats, they must listen to each other’s arguments. We could use a lot more of that.
For the common law to do this work, lawyers (and law professors!) must be clear about the norms and institutions at work. In tomorrow’s essay, I’ll clarify some muddles that Koppelman leaves unexamined.