Religious Freedom, Lgbt Rights, and the Prospects for Common Ground

Description

The rights of lesbian, gay, bisexual, and transgender persons (LGBT) are strongly contested by certain faith communities, and this confrontation has become increasingly pronounced following the adjudication of a number of legal cases. As the strident arguments of both sides enter a heated political arena, it brings forward the deeply contested question of whether there is any possibility of both communities' contested positions being reconciled under the same law. This volume assembles impactful voices from the faith, LGBT advocacy, legal, and academic communities - from the Human Rights Campaign and ACLU to the National Association of Evangelicals and Catholic and LDS churches. The contributors offer a 360-degree view of culture-war conflicts around faith and sexuality - from Obergefell to Masterpiece Cakeshop - and explore whether communities with such profound differences in belief are able to reach mutually acceptable solutions in order to both live with integrity. Cover Half-title Title page Copyright information Contents Contributors Editors Contributors Acknowledgments 1 Prospects for Common Ground: Introduction Part I The Search for Common Ground: Framing the Dialogue 2 Choosing among Non-Negotiated Surrender, Negotiated Protection of Liberty and Equality, or Learning and Earning Empathy 3 Liberty and Justice for All I The Interests at Stake II Balancing Competing Harms III Conclusion 4 Belief and Belonging: Reconciling Legal Protections for Religious Liberty and LGBT Youth I The Untold Costs to LGBT Youth II Pitting Faith against LGBT Identity III The Message to LGBT Youth: Self-Exile IV A Page from My Life V Change from Within VI Change from Outside A Religious Schools B Conversion Therapy VII Conclusion 5 Religious Freedom, Civil Rights, and Sexuality: A Christian Ethics Perspective I Ethical Commitments and Actions Flow out of a Larger Narrative or Worldview about God, Humanity, and the World II The Primary Locus of Christian Beliefs and Ethics Is in the Christian Community, Not in the Larger Society III Human Rights Flow from a Human Dignity Shared by All Humanity IV Conclusion Part II Guiding Principles for Mediating Conflicts 6 Religious Accommodation, and Its Limits, in a Pluralist Society I How Religious Liberty Claims Differ in Form, and Why It Matters II Accommodation and Third-Party Harm: The Law III Pluralism and the Question of Conscience IV Conclusion 7 ''The Devil Is in the Details'': On the Central Importance of Distinguishing the Truly Public from the Truly Private in Reconciling Equality and Religious Liberty I The Substantial Shortcomings of the Belief/Conduct, Third-Party Harm, and Proportionality Analysis Frameworks II Toward a More Workable Framework Based on the Public/Private Distinction III Some Preliminary Thoughts on Deploying the Public/Private Distinction to Resolve Conflicts between Equality and Religious Liberty IV Conclusion 8 Mutual Tolerance and Sensible Exemptions I Mutual Tolerance II The Limits of Ordinary Reason III Abortion IV Same-Sex Marriage V Conclusion 9 The Joys of Mutual Contempt I Why Antidiscrimination Law? II Moral Equivalencies? III US Civil Rights Commission: Block That Metaphor IV Conclusion 10 From Conflict to Coexistence: The Catholic Response to the LGBT Community I Official Catholic Response II Theologians III The Laity A The Dignity of the Human Person Within Community B Option for the Poor and Vulnerable C The Rights of Workers IV Much-Needed Conversion A Conversion of the Hierarchy B Conversion of the Laity V Worldviews VI Coexistence Requires Dialogue 11 Implied-Consent Religious Institutionalism: Applications and Limits I How Implied Consent Works II Implications of Implied Consent A Granting Implied Consent: Membership B Withdrawing Implied Consent: Exit C Content of Implied Consent: Process, Not Substance D Limits on Implied Consent: Strict Scrutiny III Conclusion Part III The Demands of Faith: Perspectives from Select Faith Traditions 12 Christian Identity and Religious Liberty I Faith, Not Politics II Faith and Fears III Maintaining Faith in Public Places IV Evangelicals in a Pluralistic Society 13 The ''Demands'' of Faith I Imperatives That Arise from Faith Itself II Societal Conditions That Foster Religious Expression III Governmental Protection of God-Given Freedoms IV Responsibilities of People of Faith and Their Institutions toward Society and the State 14 Toward Collaboration: A Perspective from The Church of Jesus Christ of Latter-day Saints I Moral Agency II Right of Association and Gathering versus Invidious Discrimination III The Challenge of Shared Space IV Pluralism and the Mormon Understanding of Fairness for All 15 Conscience Claims in Islamic Law: A Case Study I The Transformation of Maryam Mulk-Ara A The First Petition: 1970s Pre-Revolutionary Iran B The Second Petition: 1980s Post-Revolutionary Iran II An Early Islamic Law of Transsexuality? A Different-Sex Affinity: Before Transsexuality B Same-Sex Relations: Before Homosexuality III A Modern Islamic Law of Transsexuality A The Fatwa's Making: Juristic Updating and Internal Critique B The Fatwa's Limitations: Legal Authority, Bureaucracy, and Cultural Bias IV Conclusion 16 Should an Amish Baker Sell a Cake for a Same-Sex Wedding?: A Letter on Toleration of LGBT Rights from Anabaptists to Evangelicals I The Bare-Bones Toleration of the Dutch Mennonites II Anabaptist Yieldedness in Wisconsin v. Yoder III A Concluding Letter to Christians Part IV Testing the Civil Rights Analogy 17 The Rhetoric of Bigotry and Conscience in Battles over ''Religious Liberty v. LGBT Rights'' I The ''Brush of Bigotry'' II The US Supreme Court's Rhetoric III Branding as a Bigot or Learning from the Past? A The Civil Rights Commission's Peaceful Coexistence Report 1 Analogies to the Past 2 Flipping the Charges of Bigotry and Intolerance B Masterpiece Cakeshop 1 Arguments by Phillips and His Amici a Showing ''Hostility'' toward Phillips's Religion b Merchants of ''Good Conscience'' Are Not Bigots c Rejecting Analogies to Past Civil Rights Struggles d Downplaying the Role of Religion in Past Defenses of Racism and Discrimination e The Demands of Tolerance 2 Arguments by Respondents and Their Amici a Do Amici Brand Phillips as a Bigot? b Learning from the Past IV Conclusion 18 Against ''Civil Rights'' Simplism: How Not to Accommodate Competing Legal Commitments I The Paradoxically Impoverished Condition of Contemporary Public Discourse II Ascribing Animus III ''Civil Rights'' as an Instrument of Equivocation IV Conclusion 19 Heterosexuals Only: Signs of the Times? I Exemptions Discriminate, Shame, and Stigmatize II Exemptions Undermine and Erode Nondiscrimination Laws III Exemptions Question Our Commitment to LGBT Equality IV Conclusion 20 Conscience v. Access and the Morality of Human Rights, with Particular Reference to Same-Sex Marriage I The Morality of Human Rights: Herein of Moral Freedom and Moral Equality A Moral Freedom B Moral Equality II Moral Freedom, Moral Equality, and Interracial Marriage III Moral Freedom, Moral Equality, and Same-Sex Marriage IV Conclusion 21 On the Uses of Anti-Christian Identity Politics I Article XI and Anti-Christian Identity Politics II Abandoning Identity Politics? III Anti-Christian American Identity Politics as a Symptom of Cultural Dissolution IV Conclusion Part V Strings Attached?: Government Support of Religion and Religious Institutions 22 Marriage Equality, Traditionalist Churches, and Tax Exemptions I Short History of Challenges Posed by Marriage Equality to Religious Institutions II Bob Jones: No Threat to Churches Hewing to Traditional Marriage A Agency Practice and the Internal Revenue Code B Religious Freedom Restoration Act of 1993 C Free Exercise Clause III Democratic Pluralism, Social Capital Theory, and Religious Free Exercise IV Conclusion 23 Why Money Matters: LGBT Rights and Religious Freedom I Constitutional History Teaches Us That Money Matters II Laws and Policies Recognize That Money Matters III Practical Experience Shows Us That Money Matters IV Conclusion 24 Freedom to Serve: Religious Organizational Freedom, LGBT Rights, and the Common Good I How Do Religion's Societal Contributions Relate to Religious Freedom? A Social Policy B Religious-Freedom Rights 1 Motivation 2 Justifications II Same-Sex MarriageRights and the Common Good III Religious Voluntarism and the Common Good: Evidence A Benefits to Religious Individuals B Social Contributions of Religiously Based Service Organizations 1 Magnitude 2 Distinctiveness 3 Importance of Religious Identity IV Answers to Objections A What Good Comes from Organizations Whose Practices Negatively Affect Others? B Does Religious Organizations' Importance Call for Strict Regulation? V The Common Good and the Scope of Protection VI Conclusion Part VI Educational Institutions in the Age of Same-Sex Marriage 25 Two Paths: Finding a Way Forward at Covenantal Universities I The Spirituality of College Students II The Role of Covenantal Universities III The Logic of Faith-Based Policies and Practices IV Theological Commitments and Secular Society V Preserving Pluralism in Higher Education VI Conclusion 26 God and Man and Religious Exemptions in the Modern University I Exemptions and Their Beneficiaries A The Exemptions and Their Limits B The Balance of Interests II Which Universities Should Qualify? III Conclusion Part VII The Challenges of Public Accommodations 27 Challenges to True Fairness for All: How SOGI Laws Are Unlike Civil Liberties and Other Nondiscrimination Laws and How to Craft Better Policy and Get Nondiscrimination Laws Right I Analogies to Race and Sex A Definitions of Key Terms B Invidious Discrimination Is Rightly Unlawful C Appropriate, Lawful Distinctions Should Not Be Classified as Discrimination D Some Actions Neither Distinguish Nor Discriminate E Distinguishing SOGI Discrimination from Sexual Disagreement II SOGI Laws, Religious Liberty, and Religious Nondiscrimination Policies III Need for Policy Shapes the Protections and Definitions IV Conclusion 28 Dressmakers, Bakers, and the Equality of Rights I How Does This Compare to Masterpiece Cakeshop? II Lessons from the Not-So-Distant Past III Conclusion 29 It's Not About the Cake: Against ''Altaring'' the Public Marketplace I LGBT People Remain Significantly Unprotected II Targeting LGBT People III Impacts on Third Parties IV The Existing Civil Rights Framework Should Not Be Altered to Allow Discrimination V Conclusion 30 Bathrooms and Bakers: How Sharing the Public Square Is the Key to a Truce in the Culture Wars I LGBT People in Red America II Religious Wedding Vendors in Blue America III Nondiscrimination Laws and the Purity Model Myth A Scope of Nondiscrimination Laws Reveal a Deeply Pluralistic America 1 Title II's Targeted Scope 2 The Variable Scope Under State Nondiscrimination Laws B Regulating the Bakery, Not the Baker IV Conclusion Part VIII Reflections from Advocates, Legislators, and Policymakers 31 Sound Nondiscrimination Models and the Need to Protect LGBTQ People in Federal Law I Federal Civil Rights Legislation and Religious Exemptions A Religious Opposition to Civil Rights and Racial Equality B Religious Exemptions in Current Civil Rights Laws C Title VII and the Ministerial Exception D Fair Housing Act E Exemptions in Practice II A Brief History of Discrimination against LGBTQ People A Real People, Real Discrimination B Impact of Discrimination on LGBTQ People III LGBTQ People in the Era of Trump A Transgender Students B Transgender Service-Members C Executive Order on Religious Liberties D DOJ Refusal to Protect LGBTQ People Under Existing Federal Laws E Data Collection IV Under Siege in State Legislatures V Conclusion 32 Cultivating Common Ground: Lessons from Utah for Living with Our Differences I Utah's Evolving Script on Marriage A Utah's Marriage Law and LGBT Ordinances before Same-Sex Marriage B An Unprecedented Request for an Alternative to Intolerance II Contours of Common Ground A Involve Everyone and Listen Earnestly B Meet Each Side's Core Needs C Leave in Place Existing Law as Much as Possible D Give Clarity About the Duties Owed E Preserve the Autonomy of Faith Communities F Recognize the Dual Nature of Marriage as Civil and Religious G Give Everyone as Much Liberty as Possible Without Infringing Other Values H End Divisiveness with an Enduring Compact III Utah's Unplowed Ground IV A Transformation in View V Conclusion 33 Shared Spaces and Brave Gambles I Shared Spaces II A Brave Gamble A Condition 1: Common Pain B Condition 2: A Shared Belief C Condition 3: Political Equilibrium D Condition 4: Skilled Conveners E Condition 5: Simultaneous Benefit III Finding a Brave Gamble A Shared Language B The Collaborative Moment C Conveners of Stature D Avenues for Incremental Progress E Simultaneous Action to Protect Both Sides IV Conclusion Part IX Afterword 34 Masterpiece Cakeshop: Impact on the Search for Common Ground I The Masterpiece Cakeshop Decision II How Masterpiece Cakeshop Affects Various Common Ground Proposals Advanced in This Volume Acknowledgments Appendix of Laws Subject Index Laws Index Cases Index