Religious Freedom in an Egalitarian Age
by Nelson Tebbe
Harvard University Press, 2017
It’s easy, in the current American political climate, to see religious freedom and LGBT rights as two opposing values, permanently in conflict with each other. Much of this has to do with the backlash to advancements in LGBT rights from conservative religious groups. When the Supreme Court in 2015 affirmed the legal right of same-sex couples to marry, religious freedom laws began making their way through state legislatures and courthouses, demanding exceptions to anti-LGBT discrimination laws for individuals with religiously based views.
Brooklyn Law Professor Nelson Tebbe wrote his latest book, Religious Freedom in an Egalitarian Age, against this backdrop. “Expansion of equality law has contributed to a sense among some religious traditionalists that there has been an inversion,” he writes. “They feel they are now the minorities who require protection from an overweening liberal orthodoxy.” But now Tebbe’s work has taken on a new meaning under the Trump Administration. The conflicts between religious freedom and equality law have been brought to the center of American politics, and the divide between the two sides appears sharper than ever.
Though the Trump administration’s position on LGBT rights is difficult to pin down, the president has made repeated overtures to conservative religious groups. LGBT rights advocates have criticized his Supreme Court pick, Neil Gorsuch, for erring too far on the side of religious liberty. In Congress, the First Amendment Defense Act, first introduced in 2015, is once again gaining traction. President Trump has indicated he is supportive of the bill, which if passed would prohibit the federal government from “taking discriminatory action” against anyone who acts on a religious belief that marriage should be between a man and woman or that sex should be limited to married couples. Where once the progress of LGBT equality seemed unstoppable, and religious freedom proponents looked to be on the defensive, right now it feels like the equal rights team is losing ground.
The core of the current battle comes down to this: As LGBT individuals have made civil rights gains, religious traditionalists who adhere to certain ideas of gender and sexuality have asked for exemption from non-discrimination laws in health care, housing, employment, adoption, and marriage-related services.
Part of what makes these conflicts seem intractable is the fact that the Constitution does have competing values; the requirements of the free exercise and the establishment clauses, freedom of association, and anti-discrimination on the basis of faith don’t always add up. Conservative Christians are increasingly positioning themselves as a threatened minority group in need of special rights: If LGBT persons are granted special legal protection, they argue, so should religious traditionalists. Of course, civil rights laws do not single out religious traditionalists for disparate treatment, but the conflict, however justified, is real.
Tebbe, who previously worked for the ACLU, wrote his book in order to show how the advocacy arguments that he has long been making (for LGBT equality and against the recent expansion of religious freedom rights to corporations) are in fact principled and constitutionally sound. “They’re not just quotidian, hard-knuckle politics; they’re principled,” he told me recently. His goal was to create a framework for lawyers, journalists, and advocates to reason through the culture wars on solid footing. Tebbe’s question isn’t whether there should be religious exemptions from laws that guarantee equal protection. An entire body of laws and precedent tells us the answer is yes. Rather, he reminds us, the question is when and how these exemptions should be allowed.
The answer he proposes is a methodology of “social coherence,” rooted in four principles to guide the conflict between religious freedom and equality law: avoiding harm to others, fairness to others, freedom of association, and government non-endorsement. These four principles, drawn from legal precedent and social norms, are meant to balance one another, and none can stand alone.
Tebbe draws on but diverges from the philosophy of American political philosopher John Rawls, who believed in a concept of reasonable pluralism: a plurality of reasonable but irreconcilable philosophical, moral, and religious doctrines. Tebbe’s method is based on Rawls’ concept of coherence, in which people try to find “reflective equilibrium” by reasoning back and forth until they find principles that not only agree but also reinforce each other. Tebbe’s social coherence is an attempt to put this back-and-forth in context, because, as he writes, “when people reason through moral and legal problems, they do so from a particular location in history, culture, demography, geography, and politics.”
“Nothing about the project promises agreement,” Tebbe warns in the book. “On the contrary, it insists that disagreement, both reasonable and unreasonable, is a fixed feature of constitutional politics.”
Anyone looking for calls to action or a political playbook might be disappointed that Tebbe writes in a scholarly tone for colleagues in law and academia, in order to provide a framework for legal reasoning. But for those looking to root their advocacy arguments in constitutional principles, the book is a worthwhile resource.
Before he begins, Tebbe addresses skeptics, who argue religious freedom cases can only be resolved in ways that are arbitrary, irrational, or subjective. “Inconsistency or arbitrariness within an actor’s worldview is avoidable,” he writes, “while disagreement among individuals must be an expected feature of public life.” Just because people disagree does not mean their choices are arbitrary.
It is possible to come to reasoned conclusions, Tebbe argues, and as for the risk of irrationality, he wonders, “why does it matter?” Tebbe isn’t looking for one final answer to settle it all. “The main point of social coherence,” he writes, is to force people to justify decisions “on grounds that incorporate collective commitments, thereby helping to combat contradiction while at the same time leaving room for social evolution and moral change.”
Tebbe uses this technique to guide readers through many examples of recently litigated cases that have seemed to pit religious freedom against equal rights—cases like Boy Scouts of America v. Dale, Town of Greece v. Galloway, and Burwell v. Hobby Lobby Stores, Inc. Those on the left will be pleased that Tebbe’s methodology leads him to the narrowest possible exemptions from equality laws for religious actors.
We see this in the case of Elane Photography v. Willock, in which two women in New Mexico brought a civil rights lawsuit after the owner and lead photographer of Elane Photography refused to provide pricing and availability for their wedding ceremony, saying the company only served “traditional weddings” for religious reasons. New Mexico prohibits public accommodations from discriminating on the basis of sexual orientation, among other things, but the photographer argued she was protected by laws guaranteeing freedom of religion and speech. The New Mexico Supreme Court ruled for the same-sex couple.
In his analysis, Tebbe shows he is relatively unpersuaded by pleas for religious freedom carve-outs in the area of public accommodations. Tebbe views discrimination on the basis of sexual orientation as analogous to discrimination on the basis of race. Elane Photography should not be compared to a doctor who would like to opt out of an abortion procedure, he argues, but rather to vendors or stores attempting not to serve someone on the basis of race. “Once a business decides to enter public commerce, it must abide by the rules and regulations that govern it—including civil rights laws,” he writes.
This narrow exemption is guided by the goal of avoiding harm to others, a principle Tebbe argues is rooted in both the Establishment and Free Exercise Clauses. “So many of the religious exemptions that traditionalists are pressing for these days would have an impact on other citizens, almost by definition,” Tebbe told me. Lawyers and LGBT advocates looking to bolster their cases would do well to study this chapter closely.
There are instances in which Tebbe says he was surprised by the outcome of his methodology, in which he sided with the religious actor, most notably in cases of government employees with religious objections to generally applicable laws. Here, he turns on several occasions to the example of Kim Davis, the Rowan County clerk in Kentucky who prohibited her office from issuing all marriage licenses after the Supreme Court’s Obergefell v. Hodges decision. Exemptions like the one ultimately granted to Davis can be acceptable, Tebbe argues, as long as they are tightly tailored to prevent any visible impact, like service delays, on couples seeking marriage licenses. By distinguishing between Kim Davis the individual and Kim Davis the clerk, Tebbe argues she had a right to recuse herself (and her name) from licenses, as long as the government’s message about marriage equality was not altered. But critically, he notes, exemptions for marriage clerks cannot cause harm to third parties, and must “communicate official concern for the religious freedom of individual government employees and not endorsement of opposition to Obergefell or other elements of civil rights law.”
Here, Tebbe’s argument draws strength from his comparisons with other, well-established, exemptions for government employees, like those with religious objections to the death penalty. In these instances, we allow for carve-outs “when possible, in ways we probably want to preserve,” Tebbe told me.
Notably, the book does not address certain problems LGBT rights advocates are likely to encounter in cases where religion colors legal battles that aren’t specifically about religious freedom laws. For example, in the recently dismissed Supreme Court case Gloucester County School Board v. G.G., which concerned the right of a transgender boy to use the boy’s restroom at his high school, conservative religious groups argued in an amicus brief that interpreting gender identity as a protected class under Title IX would undermine their belief that “a person’s identity as male or female is created by God and immutable.” This religious freedom argument was not actually at issue before the court, but it has nonetheless shaped the battle for public opinion being waged over transgender rights in the United States.
While Tebbe doesn’t provide any guidelines for the political arena, he does argue that many of the existing religious exemptions in LGBT protection laws are best explained by politics, not law. After all, religious institutions enjoy no special relief from laws that prohibit discrimination on the basis of race, gender, or national origin. Political compromises on LGBT rights protections have occurred because they were considered necessary to get those protections passed in the first place, and not because they have precedent.
Throughout the book, Tebbe treats positions on the religious right as valid, insofar as they are held by members of the body politic and are rooted in real constitutional concerns. “Only a proposal that appreciates the power of arguments on both sides can provide a stable, defensible foundation for the future of both free exercise and anti-discrimination law,” he writes.
The work is ultimately optimistic in its quest for “civic harmony,” and it sometimes comes across as an overly confident olive branch to religious conservatives, especially as this group holds new power through a presidency made possible in large part because of their support. “Striving for outcomes that are backed by reasons can be more controversial in the short term, because the losers of a particular fight are not merely accommodated but told they are on the wrong side of justice,” Tebbe writes. “But over time the hope is that governing with reasons can promote a more lasting unity.”
Recent surveys show a clear majority of Americans support LGBT non-discrimination laws. Tebbe believes American jurisprudence will continue to shift toward egalitarianism and equal protection, even if there are setbacks under the Trump administration. Of course, the promise of a future victory is likely cold comfort to LGBT individuals facing discrimination today. And as history has shown, perceived cultural losses are likely to make some religious conservatives even more vocal in their opposition to LGBT rights. But that does not mean they will win in court. For even when it comes to dealing with the political landmine of religious freedom, Tebbe told me, “our ordinary and rigorous techniques of legal argumentation still apply.”
Stephanie Russell-Kraft is a Brooklyn-based freelance reporter covering the intersections of religion, culture, law and gender. She has written for The New Republic, The Atlantic, The Hill, Religion Dispatches, among others, and is a regular contributing reporter for Bloomberg Law.