Saturday, August 12, 2017

Nondiscrimination for All

I am gay, and an atheist, and I disagree with most of what religious conservatives have had to say about gay equality and same-sex marriage. But my respect for the First Amendment’s unique protectiveness of religion, and also for the unique social centrality and sensitivity of religion, strongly inclines me to find ways to allow religion to go on about its business whenever possible.

 

In the months before the 2016 presidential election, many advocates of gay rights and many advocates of religious liberty were convinced that an undesirable election result could present an existential threat to their ways of life. And in the days following election night, many activists for gay rights feared that their victories of the last decade might be wiped away with a stroke of the presidential pen.

But the election of Donald Trump is very unlikely to result in a dramatic change in the status of gay Americans — or in a dramatic victory for the religious-liberty caucus, despite the outsized influence of the Supreme Court. The same would have been true if Hillary Clinton had won the presidency. The truth is that the argument over gay rights and religious liberty was never going to be settled in a single election. To see why, consider two bills that went before the last Congress.

The Equality Act would have granted LGBT Americans — whom I’ll interchangeably shorthand as “gay,” with no disrespect or exclusion implied or intended — protection from housing, employment, and public-accommodations discrimination under federal law, something they lack at present. It was championed by Democrats and liberals. The First Amendment Defense Act, supported by Republicans and conservatives, would have pre-emptively shielded those who object to or discriminate against same-sex marriages (whether on religious or moral grounds) from any federal sanction or disallowance of benefit.

The supporters of each bill came from opposite corners, but the two bills had something in common: Each tried to take all the marbles and leave the other side with nothing (or as little as possible). The Equality Act included a provision revoking any protection which religious objectors might enjoy under the Religious Freedom Restoration Act. The First Amendment Defense Act protected religious objectors from discrimination while leaving gay people wholly unprotected under federal law.

If these bills were opening positions in a negotiation, then what should ultimately happen is legislative bargaining leading to the obvious compromise — protections for gay people plus exemptions for religious objectors. Such a solution is possible, of course, but compromise is unlikely, in part because the bills also have something else in common: Both seem to be based on moral conviction, and not merely strategic positioning. In that respect, they are emblematic of an unfortunate development: A debate in which a few years ago there seemed to be fairly good prospects for reasonable accommodations has hardened into legal and political trench warfare.

That is not to say that a compromise based on reasonable accommodations is impossible. A widely noted 2015 deal in Utah demonstrated that conciliation is still politically possible and socially ennobling. The polarization and backlash and general nastiness following upon one-sided mini-RFRAs and bathroom bills in places like Indiana and North Carolina demonstrated that the absolutist path is politically costly and socially divisive.

To get past the nastiness to a reasonable compromise, we need to understand where we are, and to do that we need to talk about an elephant in the room. We need to talk about what’s wrong with the way most Americans think about nondiscrimination.

Specifically, we’ll have to move past the absolutist, myth-based model of nondiscrimination and toward a pluralist, reality-based understanding. But first we need to understand the current terms of the debate.

To Live Their Faith

I should begin by saying that I start with a disposition that is protective of religious liberty — a disposition that is far from universal in the world of gay-rights advocacy. I am gay, and an atheist, and I disagree with most of what religious conservatives have had to say about gay equality and same-sex marriage. But my respect for the First Amendment’s unique protectiveness of religion, and also for the unique social centrality and sensitivity of religion, strongly inclines me to find ways to allow religion to go on about its business whenever possible.

I also accept that human sexuality is part and parcel of the theologies of many religions (in a way that, say, race is not). And, to avoid subjecting religious individuals and faiths to public inquisitions, I believe we should generally treat religious objections as sincere and genuine, at least as far as law and public policy are concerned. Accepting these premises leads to the reasonable conclusion that religious people and institutions have a legitimate and well-founded claim to be cut some slack by law and society, even if they sometimes use that slack to behave in a way that strikes others (including me) as intolerant and hurtful.

Many gay people, however, don’t share these assumptions. Instead, they look at religious objectors and see a desire to discriminate in the name of religion, and to leverage religion to obtain an explicit “license to discriminate.” To many of my gay friends, this is not about “live and let live”; it is an aggressive effort to deny LGBT people the legal protections and social equality that religious people already enjoy and take for granted.

Unfortunately, over the past several years, the words and deeds of many on the religious-rights side have done nothing to allay such suspicions. To the contrary, some religious-liberty advocates have been quite explicit about their desire and intent to discriminate, at least against gay couples if not necessarily against gay individuals — and to do so even in commercial environments that advertise themselves as open to all comers and that seem, facially, remote from any kind of religious venue or activity.

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