In 2016 the US Commission on Civil Rights issued the report Peaceful Coexistence: Reconciling Non-Discrimination Principles with Civil Liberties. Despite the title, the commission seemed to argue that reconciliation was unlikely because, in the words of Obama-appointed chairman Martin Castro, “religious liberty” and “religious freedom” stood largely as “code words” for every form of bigotry and intolerance in the United States. Castro’s rather injudicious assertion is the jumping-off point for this collection of “thirty-five crisp, consciously accessible thought pieces” (p. 1) organized into nine parts on the prospects for common ground between religious freedom and LGBT rights in the United States since Obergefell. The clear majority of essays both seek for and claim to have found such ground. Although constitutional scholars and lawyers dominate the list of authors, among the book’s strong points is its inclusion of legislators, policy makers, and religious authorities as well. The volume strives for and largely accomplishes balance between the number and quality of pieces from each side in the debate. Its overall tone is measured, tolerant, and optimistic, clearly fulfilling the editors’ hope that “reconciliation” (p. 6) can be achieved in a period of considerable national division.
The volume covers many different arenas of conflict and potential cooperation. The issue of public accommodations dominates the discussion, but churches and religiously affiliated organizations in higher education, health care, and adoption services are all discussed. Several pieces recognize the similarity of abortion and euthanasia as issues to the legal, cultural, and political position of LGBT rights in today’s United States. Constitutional law frames the analysis. Although some writers give attention to politics, political philosophy, and ethics, the task of “balancing rights” to (or “balancing interests” in) liberty and equality takes center stage.
With a volume of this size, a built-in shortcoming is its inclusion of so many authors from so many diverse perspectives, tending toward a cacophony of voices that undermines the editors’ optimism in finding common ground. Several authors, such as Alan Brownstein, Douglas Laycock, Dennis P. Hollinger, Holly Hollman, and Robin Fretwell Wilson, explicitly invoke the concept of “human dignity” shared by advocates of both religious liberty and LGBT equality. Yet, even though both socially conservative and socially progressive authors indeed express a common commitment to dignity, there is (not surprisingly) little agreement on what dignity demands regarding the legal protection of conscience and the legal enforcement of nondiscrimination. At least seven essays offer robust “guiding principles for mediating conflicts” between liberty and equality rights (even though not all are included in the section of that name). They advocate analyses based on “dignity harms” (Douglas NeJaime and Reva B. Siegel), distinguishing “the truly public from the truly private” (Ronald J. Krotoszynski Jr.), “private property and freedom of association” (Andrew Koppelman), “implied-consent institutionalism” (Michael A. Helfand), the liberty of “close associations” (B. Jessie Hill), distinguishing legal “shields” from legal “swords” (Ryan T. Anderson), and the principle, “regulate the business, not individual workers” (Robin Fretwell Wilson)—all the while showing little common ground between them. Two authors—Steven D. Smith and Marc O. DeGirolami—even argue against the entire civil rights framing of the debate, convinced it serves only to reinforce rather than resolve disagreement. Such disharmony should temper optimism that any “rights-based approach” to resolving social conflict is the country’s best foot forward.
Three contributors—Thomas C. Berg, Archbishop William E. Lori, and Ryan T. Anderson—offer a dramatically different tack based not on rights but instead on “the common good.” Rather than appealing to the centrality of individual “conscience claims” (Intisar A. Rabb) or “identity” (Leith Anderson), these three instead invoke philosophical-legal arguments based on civic virtue, natural law, or what Lori boldly calls “the objective moral order” (p. 174). Such arguments appeal to an older form of First Amendment jurisprudence, one “that emphasized truth seeking and common democratic deliberative process to those that made authenticity and self-actualization paramount” (DeGirolami, p. 275). It is no coincidence that the authors invoking the common good are Catholics, serve on the law faculty of Catholic universities, or both. The volume’s evangelical and Mormon contributors instead remain wedded to traditional (Ana)Baptist commitments to state neutrality and moral pluralism. Some—Hollinger, Shirley V. Hoogstra and colleagues, and Jason R. Moyer—even condemn outright what they call a “Christendom” model tied to Catholic thought and instead praise the “confident pluralism” of evangelical legal scholar John Inazu and his defense of liberty as the highest public goal.
Such commendation of pluralism from social progressives, as well as evangelicals and Mormons, begs a crucial question, however: What are the social and political limits to pluralism? Coeditor William Eskridge (formerly on the Georgetown University law faculty) is among the few non-Catholic contributors to recognize this practical matter. Although Americans are more tolerant of pluralism than most, no society can or would wish to encompass the full scope of human moral diversity. Liberty and equality are certainly American values, but so too are fraternity and solidarity—on which depends not only our civil rights but also our entire system of taxation, redistribution, and public spending. What foundation can support a common moral project to preserve and nurture not only individuals but also an actual society?
In their introduction Eskridge and Robin Fretwell Wilson offer the so-called Utah Compromise struck in 2015 between religious conservatives and LGBT rights advocates as an explicitly political model of cooperation and reconciliation. The legislation extended religious freedom while simultaneously introducing LGBT nondiscrimination into state housing and employment law for the first time. It preempted local ordinances and contained a “non-severability clause” that would eliminate all new protections in the event those of either side were invalidated by a court ruling. Wilson herself helped draft the bill, and two conservative Utah politicians instrumental in passing the legislation contribute essays praising it as “common ground” (Senator J. Stuart Adams) and an instance of “shared-space solutions” (Governor Michael O. Leavitt).
The relevance of the Utah Compromise is limited in a practical sense, however. Even though State Senator Stuart Adams claims the Utah Compromise is a “stable law,” the LGBT rights organization Equality Utah continues to press for its extension to public accommodations, Salt Lake City council members push for a city public accommodations ordinance, and the Salt Lake City mayor’s office joined an amicus brief in the Masterpiece Cakeshop case in support of the State of Colorado and against baker Jack Phillips. Moreover, the compromise is applicable only to red states yet to incorporate sexual orientation and gender identity (SOGI) into their nondiscrimination law. In blue states, religious conservatives have already been defeated, and thus it is too late for them to negotiate any form of compromise. With such disparate conditions across the 50 states, it is difficult to imagine how a federal law could unify the country. Would California sacrifice its understanding of equality to advance it in Alabama? Would Texas allow the federal government to impose a public accommodations law on it to protect religious conservatives in Massachusetts?
Twice in the conclusion to his essay, Douglas Laycock observes that progressives and conservatives “have to live with each other” (p. 36). Short of either national conversion or national disintegration, there is indeed no escaping one another. Yet it is ironic that authors mostly given to liberal commitment have written a collection of essays during what many on both the Left and Right see as the twilight of liberalism and presume the authority of the law in the wake of one of the most divisive Supreme Court confirmation hearings in US history. Future “peaceful coexistence,” if it is to be had at all, demands far more political creativity than has yet been dreamt of in legal philosophy.
