"In addition to whatever else the prosecution can prove," a judge told a defense lawyer on an early episode of Law & Order, "your client is guilty of bad timing." The same is true of The Week's Damon Linker, who wrote two posts urging liberals to temper their pursuit of justice for gays and lesbians in order to to respect the religious freedom of opponents of equal rights. Unfortunately for Linker, this was the same month the Kansas state House of Representatives passed abominable legislation that would have allowed not only private employers but state employees to discriminate against gays and lesbians. It demonstrated exactly where this kind of logic can lead. I will assume that Linker, like even a number of Republicans in the Kansas Senate, would not advocate going as far as the Kansas House did. But given the extent to which support for discriminating against gays and lesbians is being advanced under the banner of "religious liberty," it worth noting that Linker's more modest arguments remain highly unpersuasive. They both vastly overestimate the extent to which various pro-LBGT rights impinge on religious freedom and underestimate the costs of allowing dubious religious-freedom claims to trump civil rights.
One core problem with Linker's argument is that it greatly overstates the extent to which liberals are "winning the culture war." In his initial post, Linker argued the tide is turning toward liberal positions on reproductive freedom and LGBT rights, and so progressives "run the risk of turning themselves into latter-day Jacobins, the anti-religious zealots who dominated the French Revolution during its most radical phase." Even leaving aside the intellectually insulting hyperbole of the comparison—Antonin Scalia need not worry about decapitation—this declaration of victory is very much premature. A majority of states, for example, do not include sexual orientation as a protected category in their civil-rights statutes. Same-sex marriage remains illegal in 37 states. It's true, as Slate's Dahlia Lithwick notes, litigation campaigns against same-sex marriage have been increasingly successful, and it's possible that the Supreme Court will declare a federal right to same-sex marriage. But it's also possible that they won't, and until it happens, it would be premature for progressives to declare victory. And this certainly isn't remotely symmetrical to the losses suffered for LGBT rights in the 1990s, which included loss after loss at the state level and terrible federal legislation passed by massive supermajorities and signed by a Democratic president.
Even if we assume for the sake of argument that Linker's before-the-fact Whig history will be vindicated, his case for why proponents of same-sex marriage should backtrack won't fly. Here's the core of Linker's argument:
In case there's any doubt: I support gay marriage, and I have no objection to birth control. But I also believe that a free society should permit its members to disagree on these issues. And that when liberals use the government's coercive powers to force believers to change their views or act against their most deeply held spiritual convictions, liberals (paradoxically) commit an act of illiberalism.
The problem here is that one of these charges is vastly exaggerated and the other is flat-out imaginary. People being asked to "change their views" would indeed be a fundamental violation of the free exercise of religion, but absolutely nobody is being coerced by the state to change their private views. Any business owner is free to declare the immorality of contraception to their heart's content, and civil-rights statutes do not require anyone to support same-sex marriage. If accurate, this charge might begin to vindicate the silly rhetoric about "Jacobins," but it's just a non-sequitur.
It's possible that that the contraceptive mandate might cause someone to have to act against their "deeply held spiritual convictions," but there's nothing inherently "illiberal" about that. All generally applicable regulations of conduct can conceivably require people to act against their "deeply held spiritual convictions," but this doesn't mean it's illiberal or undemocratic to compel the Amish to pay social security taxes or to compel Quakers to pay income taxes to fund a standing army or to compel Christian Scientists to provide medical care to their children. In a liberal society, people cannot be compelled to change their beliefs, but they certainly can be compelled to obey general laws that conflict with their faith; making everyone a conscience onto themselves isn't liberalism, but anarchy.
The question, then, is not whether there might be a contradiction between these policies and the religious beliefs of individuals, but whether the laws place a burden so substantial that they constitute rare cases where a exemption to general laws should be granted. And neither of these cases should even be close calls. Religious organizations are exempt from the contraceptive mandate, and the burden imposed on the secular companies it applies to is trivial—nobody is compelled to use contraception or to advocate its use, and indeed denying employees a statutory right based on religious beliefs they don't share would result in a net diminution of religious freedom. Since Linker seemed to misunderstand this point when discussing Linda Greenhouse's fine post on the subject, let me emphasize that I am not arguing that the religious beliefs are trivial; I am arguing that the burden on these beliefs is trivial. Courts and legislators should be deferential on the first point, but cannot be on the second. A bare assertion of a conflict with religious belief cannot be enough to trigger an exemption to general laws.
The problem with demanding an exemption to civil rights laws has the same problem—it proves too much. If individuals can claim an religious exemption from civil rights laws protecting gays and lesbians, why not an exemption to civil rights laws protecting African-Americans or women? Addressing this objection, Linker asserts that "strictures against homosexuality are rooted far more deeply in the Judeo-Christian tradition than racism ever was." Even if this is true—and note that Linker doesn't mention gender discrimination, which is deeply rooted in the Judeo-Christian tradition, here—in terms of lawmaking it's essentially beside the point. It's not the proper role of elected officials of courts to determine the precise level of a citizen's religious commitment, which would raise serious Establishment Clause issues. What matters is whether the state has a good reason to burden an individual's religious belief. And, again, while individuals are free to argue against LGBT rights and refuse to associate with gays and lesbians, it's reasonable for the state to hold that when they act as employers or businesspeople they have an obligation to treat workers and customers on equal terms, regardless of their individual beliefs. (It's worth noting, as well, that the vast majority of civil rights statutes and ordinances exclude true mom-and-pop operations.)
There's a final problem with Linker's argument, particularly combined with his arguments that progressives should compromise by abandoning Roe v. Wade. It's convenient that Linker's tradeoffs inevitably involve other people sacrificing their rights. Linker and others similarly situated will never have to worry about being able to obtain a safe abortion, or being denied services most people take for granted, or not being able to afford contraception. One strongly suspects that if his fundamental rights were under attack, Linker would suddenly find the idea that minor conflicts with religious belief should be a trump card much less compelling.
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