Each year, as the occupant of the Herbert Kurz Chair in Constitutional Rights at CUNY Brooklyn College, I have the privilege of putting together public programming that probes the limits and possibilities of the U.S. Constitution's ability to protect the rights of politically unpopular minority groups. In past years, the series has taken on the topics of NYPD's Stop and Frisk, school desegregation, and comprehensive immigration reform.
In June of 2015, the Supreme Court issued a landmark decision on same-sex marriage in Obergefell v Hodges. The decision was regarded as a huge victory for the LGBTQ community and for our country, but it left unfinished business. Although undoubtedly a significant development, Obergefell only confined itself to the question of marriage and fell short of designating sexual orientation as even a quasi-suspect class under U.S. constitutional law's equal protection framework. In practical terms what this move means is that unless there is a state level anti-discrimination law in place that specifically designates sexual orientation as a protected grounds along with race, sex, and religion for example, it may still be legal to refuse to hire, to fire, to refuse adoption, refuse to rent or sell property to persons solely based on their sexual orientation.
With the Obergefell victory, the LGBTQ movement currently finds itself at a crossroads. Having overcome sodomy laws, overturned Don't-Ask-Don't-Tell, and now having achieved a major milestone of the national recognition of same-sex marriage, where is the movement headed?
At the same time, the United States has had a long tradition of respecting religious liberty as protected in the First Amendment's establishment and free exercise clauses. In 2014, the Supreme Court ruled in Burwell v Hobby Lobby that the Religious Freedom Restoration Act, (RFRA), a federal law, shielded a for-profit business from compliance with a provision in the Affordable Care Act that compelled employers to provide contraception to their employees if doing so would violate the employer's religious beliefs. (RFRA was passed with overwhelmingly bipartisan support in both chambers of Congress and signed into law by Bill Clinton.)
Shortly after the Obergefell decision, when I had already decided that the 2015 Kurz event would address the subject of LGBTQ equality and religious rights, Kentucky county clerk Kim Davis, citing her Christian faith, made international headlines by refusing to issue marriage licenses to same-sex couples. As that same New York Times article noted, Davis became "a symbol of religious opposition to same-sex marriage." The rallying cry for the Christian right against same-sex marriage was no longer that it threatened heterosexual marriage, but that accommodation of same-sex marriage was a violation of one's religious liberty.
The media certainly casts the LGBTQ community's claims of equality and claims of religious rights as if they are in opposition, but is this construction unavoidable? Or is there a way to reconcile the two that would be satisfactory to both?
This year's Kurz Chair public event brought Law Professor Steve Sanders from Indiana University's Mauer School of Law to Brooklyn College to speak on the subject of how to balance LGBTQ equality against claims of religious freedom. Sanders, a constitutional law expert and specialist in the rights of LGBTQ couples and their families, visited Brooklyn College on October 26, 2015. About 70 to 80 students, faculty members, staff, and the Dean of the School of Humanities and Social Sciences attended the event in Woody Tanger auditorium.
Sanders gave a thoughtful and nuanced talk in which he provided a way forward for how the LGBTQ community and progressive allies should weigh claims of religious liberty against LGBTQ equality.
He began by sketching the current legal and cultural landscape facing LGBTQ citizens. Although same-sex marriage is legalized across the land, only 21 states have passed anti-discrimination laws which protect this community, leaving the gay community vulnerable to discrimination in the remaining 29 states in areas such as housing, adoption, public accommodation, and employment.
Sanders also noted the generational shift in attitudes toward gay marriage, but also drew attention to a point of concern for progressives concerned about sex and gender rights across the board. He pointed out that today, more Americans support gay rights than abortion rights and that this trend is strongest among Millennials. He believes that the plan of the religious right is to keep the same-sex marriage issue in political play to prevent if from becoming a settled issue.
Sanders spent the rest of his talk pragmatically urging restraint and caution of the LGBTQ community in taking care to strategically distinguish between taking on genuine bigotry and overplaying their hand, which would risk squandering the precious public support the movement currently enjoyed. He noted that while bigots had coalesced around using religious liberty as a strategy to counter LGBTQ rights, especially same-sex marriage, it is important to recognized that there are also religious moderates who have deeply held religious convictions that cause them to have a genuine conflict with accommodating gay marriage.
Sanders pointed out that the problem with the construction of the Christian right's "religious rights" is that it is absolutist in rejecting completely any gay rights as entirely compatible with it. He argued that LGBTQ activists should not be equally absolutist and intolerant in their construction and litigation against claims of religious rights. The example he presented was to urge LGBTQ activists to make the distinction between bringing a lawsuit against a florist who has served without incident for years her gay clients but who now drew the line at making the flower arrangements for their same-sex weddings citing her religious faith, versus the florist who refused to serve any gay clientele under any circumstances.
Given the limited litigation resources, Sanders said he would be in favor of litigating against the latter, not the former. Sanders would also favor legal action against the latter rather than the former as a matter of public relations; he said the LGBTQ community needs to come across as reasonable and not as rigid as the Christian right. It needs to be understood and perceived by the public as a movement that is sympathetic to the rights of moderate, religious persons and a movement that views the expansion of its rights with equal regard for not unduly placing burden the rights of others.
Sanders believes that Kim Davis was an entirely unsympathetic case for the cause of religious liberty and starkly illustrated the unreasonableness and uncompromising nature of the religious right. He believes that ugly spectacle was a textbook case of what NOT to do and how to lose public support for your cause by being absolutely narcissistic and uncompromising in your own position. He argued that her stance was completely devoid of any nuanced understanding of true religious liberty and totally unaccommodating toward the opposing point of view.
Sanders closed by listing some public opinion figures on support for LGBTQ rights from The Washington Post: 63% of respondents said Davis should "be required to do her job." 66% of GOP respondents said that people should be treated equally regardless of their sexual orientation. In light of this state of current public opinion, Sanders concluded, the Christian right was like "A child throwing a tantrum." Nevertheless, he cautioned, the LGBTQ community had not yet consolidated broad public acceptance and must not squander it by overplaying its hand by appearing unsympathetic toward moderate religious persons who may have genuine religious-based objections to accommodating same-sex marriage but who are not hardened homophobes.
Sanders then turned over the microphone to Paisley Currah, professor of political science at Brooklyn College. Currah, a founding editor of Transgender Studies Quarterly, is an expert in queer legal theory, political theory, and public policy. (I had asked Currah to assess the evolution of the LGBTQ movement.) Currah noted the irony that in U.S. history, it fell to the most undemocratic of institutions, the federal courts (undemocratic because the courts consist of un-elected and politically unaccountable judges) to provide the LGBTQ community with their individual rights, and that the individual rights of gay citizens was repeatedly withheld and curtailed through the "democratic" exercises of the franchise.
Indeed the Obergefell decision illustrated Currah's point--the Supreme Court, through a narrow 5-4 majority, nationalized gay marriage across the land, overriding the objections of the many states had chosen to ban gay marriage through legislative or ballot initiative measures. What the Court majority did in Obergefell is take on one of the roles that the framers had anticipated the federal judiciary would play in Federalist 78 in guarding against the "ill humors of society", but still, it is jarring and "counter-majoritarian" to those on the losing side of the decision.
Currah also highlighted the disjuncture that while conservatives purport to advocate small government in every other sphere of public policy, they have no problem with big and invasive government policies when it comes to matters of abortion and gay rights where the government is literally "in your bedroom."
At this point, the floor was opened to the audience for a vigorous 35 minute Question and Answer session that I moderated. Most of the Q and A was dominated by what I would describe as Sanders' pragmatism clashing with the students' raw idealism. Some of the student audience members did not take well Sanders' admonition to pick and choose which cases to litigate; they felt that any case in which a gay person or couple was refused service or public accommodation based on a claim of religious rights should be vigorously litigated and countered based on 1) the indignity and insult to the person/couple denied service, and the 2) need to establish a positive body of precedent to counter claims of religious liberty to deny LGBTQ rights.
Sanders reiterated that it was a question of finite resources and that he didn't think it was a good use of funds to litigate every case. He again explained that surely the LGBTQ community should not want to alienate moderate religious allies who had genuine religious difficulties with recognizing gay marriage but who were not homophones. He said, "We [the LGBTQ community] don't want to be perceived as having won the war and are now going back across the battlefield to shoot the remaining survivors." He was trying to stress that there was an additional matter of the public relations war that had to be won, not just the litigation at hand.
One student retorted that he'd be more likely to believe a claim of religious belief if it hadn't been trotted out so often in U.S. history to oppose mixed race marriage and gender equality before. Sanders responded that the students should not just think of claims of religious liberty as just the extreme ones put forth by the Christian right. What about the ones by non-mainstream religious such as Islam? He said he also believed the more urgent matter was to get anti-discrimination laws passed in the remaining 29 states that did not have them. Clearly there was going to be a difference of opinion among the speaker and some of the audience members.
Other audience members asked whether persons of faith who were supportive of gay rights could act as intermediaries and emissaries between the two communities and both Sanders and Currah pointed out that indeed many such efforts were underway and in fact many in the LGBTQ community are themselves deeply religious people.
Someone else asked if the two speakers believed that American supporters of gay rights also had an obligation to support LGBTQ communities abroad. Currah answers that he'd have to take a good hard look at who was calling for support for those efforts and why those calls were being made. For example, he noted that he would look askance at a call to invade a foreign country to "aid the oppressed LGBTQ community."
A very big thank you to Steve Sanders and Paisley Currah for providing such a stimulating talk on an important subject. And thanks again to all who came out to the event and to all the cosponosoring departments and units, especially the Wolfe Institute for the Humanities and the LGBTQ Resource Center. I look forward to seeing everyone at next year's Kurz event.