One of the most toxic fields of America’s political polarization is the conflict between the gay rights movement and the religious right. Each, with some justification, regards the other as an existential threat. Linda Greenhouse, the Pulitzer-Prize winning New York Times columnist, thinks compromise is impossible. She is too easily discouraged.
In the New York Review of Books, she generously calls my book, “Gay Rights vs. Religious Liberty?: The Unnecessary Conflict,” “a novel and useful contribution to discourse on LGBTQ rights,” and appreciates “the willingness of one of the legal academy’s most prominent advocates for LGBTQ equality to meet the other side halfway.” But she questions whether “the very notion of accommodation can be seen in today’s America as anything more than a noble thought experiment.”
Greenhouse doesn’t believe that it is possible for proponents of LGBT equality, like her and me, to reach any modus vivendi with the religious right. Some of its best-organized elements, she accurately notes, are dangerously antidemocratic and even theocratic, promoting a paranoid narrative of “grievance conservatism — conservatives’ belief that they are losing unfairly even when they are actually winning.”
My subtitle calls the conflict “unnecessary.” She responds: “Unnecessary, perhaps, seen from the ten-thousand-foot level. Here on the ground, ‘The Inevitable Conflict’ seems more accurate.”
Very little that happens in history is inevitable.
The religious right is not a monolith. Its leaders have notably failed to control their constituents’ moral beliefs or political behavior. On gay rights issues, they are actually losing. A recent Gallup poll reports that 70 percent of Americans support same-sex marriage, as do 55 percent of self-identified Republicans. Among Americans ages 18-34, it is 84 percent. That last number must include a lot of religious conservatives.
Those leaders desperately wanted to reelect Trump, who, she writes, “essentially handed the federal government’s policymaking apparatus over to the religious right.” But in 2020 they didn’t deliver. My book argues that Hillary Clinton’s lack of interest in reaching religious voters was an important reason why Trump defeated her. To take one prominent denomination, he got 81 percent of white evangelical votes in 2016, but only 76 percent in 2020. Biden’s victories in Michigan and Georgia came largely from outperforming Hillary Clinton among that demographic. These voters are in play. It would be a mistake to give up on them. One path toward winning the political conflict is lowering the intensity of the cultural one.
Greenhouse obviously finds the religious right pretty scary. But, as a longtime proponent of gay rights (I am one of the lawyers who persuaded the Supreme Court that Title VII’s prohibition of sex discrimination forbids antigay discrimination), I’ve noticed that conservative Christians also regard us as pretty scary. They fear that the law will treat them like racists and drive them to the margins of American society. They are right to worry: They may not be able to be wedding vendors, counselors, social workers or psychologists, or control the content or staffing of their own educational institutions. Their charities face the denial of funding and licenses. Equality does not require that, and the cause of equality will not be promoted by sympathetic news stories about sweet Christian grandmothers threatened with financial ruin by lawsuits.
Many Americans think their religion teaches that marriage is inherently heterosexual and that homosexual sex is morally wrong, and also regard Trump as an un-Christian, lying, cruel bully who endangers American democracy and whose incompetence killed huge numbers of Americans. They are caught between revulsion toward Trump and fear of the Democrats. It is not helpful to tell them that they will be reviled as hateful bigots unless they change their religious views. They need to be offered an alternative vision of America, one that has a legitimate place for them. That is not only an imperative of political strategy. It is necessary if Americans are going to have a common life together. Polarization and alienation are threats to the entire country, not just the Democratic Party.
Greenhouse doubts the workability of my suggestion that wedding vendors – bakers, florists, and the like – be permitted to discriminate if they are willing to bear the cost of publicly disclosing their discriminatory behavior. “It’s easier to imagine that a jurisdiction adopting such a proposal as law would be promptly greeted with a lawsuit challenging the notice requirement as compelled speech in violation of the First Amendment.”
As my book notes, some of the Supreme Court’s conservative justices have indeed shown an unfortunate tendency to distort free speech law in order to hand victories to conservative Christians. But it is hard to imagine how the Court could sustain a First Amendment challenge to a compulsory disclosure rule without invalidating every requirement for warnings on dangerous consumer products. I doubt that they would go that far. (Well, maybe some of them, but I don’t count five votes.)
I know a lot of people of good will on both sides of this fight who would like it to stop. A book like mine is always an exercise in speculation: a vision for coexistence that might or might not persuade a sufficient critical mass of the audience to try it out. Political proposals are like Broadway shows: you can’t know until you put it in front of an audience whether you have a hit or a flop. The conflict will be inevitable only if we give up trying to end it.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict” (Oxford University Press, 2020). Follow him on Twitter @AndrewKoppelman.