ARGUMENTS

Articulating the differences and similarities in the authors’ respective arguments proves to be among the most useful aspects of this book—in particular for highlighting areas of seemingly unbridgeable gridlock.

Corvino, for example, takes a deconstructive approach that draws heavily on analogies and pragmatic concerns. He is particularly mindful of the burdens that religious liberty might create if left to the devices of individual conscience. Religious people are not, by virtue of their religion, a law unto themselves. Corvino argues that religious liberty has gradually become an instrument for religious privilege, and examines the need for positive laws that promote social equality. He proposes reforming the “strict scrutiny” standard of the Religious Freedom Restoration Act, or RFRA, for example, and challenges American courts’ methods of evaluating the sincerity and centrality of religious commitments. Corvino also criticizes the disparate treatment that conscience claims receive when they are not tethered to religion, and addresses the important topic of “attenuated burden” and the consequential burdens that legal accommodations of religious conscience place on third parties. Corvino uses a slew of literary devices—including hypothetical figures like “Mr. Pacifist,” “Mr. Ingroup,” “Mr. Antipapist,” and “Mr. Burqa” (see, for example, 214)—to illustrate his concerns with religious accommodations that would threaten the rights and interests of lesbian, gay, bisexual, and transgender, or LGBT, citizens. His rebuttal also focuses on the need for sexual orientation and gender identity (SOGI) laws to rectify the harms of “anti-LGBT discrimination” (222).

Anderson and Girgis, on the other hand, begin by laying out a philosophical framework for resolving individual skirmishes—invoking ideas that are conducive to community involvement and political engagement. They focus on the inherent and instrumental value of religious liberty as a gatekeeper for other fundamental values and rights. Religion is valuable to both individuals and society, they argue. It is also fragile, and its vitality should not be taken for granted. Girgis and Anderson thus argue for the sensibility of laws like RFRA, which protect religious conscience.

In their rebuttal to Corvino, Girgis, and Anderson focus on the need for the First Amendment Defense Act to further protect conscience claims from governmental coercion (238–40). They respond to Corvino's concerns with RFRA and to the question of how to gauge a sincerely held belief. They argue that RFRA has not, in fact, led to the “parade of horribles” that critics have predicted. Furthermore, they insist, the balancing standard in RFRA ensures fairness to all sides. They respond to Corvino's accommodation concerns by noting that an argument for shifting benefits to third parties could always defeat religious liberty claims if framed in this entitlement language. Instead, they advocate not for the presence of a shift per se, but with the question of fairness in relation to a rightful distribution of burden and benefit (240–45).

Alongside these differences, the authors make a number of important concessions and identify mutual concerns. An interesting theme emerges, for example, as both sides look through the lenses of “puritanism” as a byword for coercion, that is, the “religious liberty means the liberty to do things our way” (105, Corvino) form of puritanism versus “progressive Puritanism … [as] an effort to coerce conscientious dissenters to live by the majority's views” (108, Anderson and Girgis). Other areas of overlap include questions about fair policies, social status, and individual identity. For example, Corvino disclaims overused and exaggerated accusations of “bigotry” and agrees that some provisions in RFRA (with modifications) remain apt and useful (32, 96, 215–19). Anderson and Girgis, on the other hand, express their opposition to status-based discrimination while supporting, in theory, any “well-drawn policy that proved essential for meeting LGBT people's needs” (186).Footnote ⁷

On questions surrounding identity and social status, Corvino carefully outlines the material and dignitary harms “involved in treating [LGBT] people as having less than equal moral standing” (73). Corvino helpfully distinguishes between “normative” and “social” status, describing the loss of the latter as most troubling given its attachment to having one's “status acknowledged or respected” (73). For their part, Anderson and Girgis discuss the harm that comes to one's moral and religious integrity when the state coerces an individual to violate their beliefs (133). The authors note that, while alternatives to practice your religion provide a path towards self-determination, when it comes to religious mandates decided on for faithful living, a failure to adhere to religious principles “makes [one] deficient in religion or integrity” (135–36).Footnote ⁸

Despite its impressive breadth, this book overlooks a number of potentially useful concepts and questions. New York University law professor Kenji Yoshino's work on the concept of covering, for example, is particularly relevant to this debate. Covering relates to the effects that certain laws can have on psychological well-being. Yoshino explains that, “homosexual self-identification and homosexual conduct are sufficiently central to gay identity that burdening such acts is tantamount to burdening gay status.”Footnote ⁹ He also notes that this phenomenon of covering relates to not only the LGBT-community, but also to religious minorities and questions about the “True Self.”Footnote ¹⁰ Yoshino writes that, “despite our frequent political differences, religionists and gays share a special bond” in relation to pressures for assimilation—noting that “[t]he goal is not to eliminate assimilation … but to reduce it to the necessary minimum.”Footnote ¹¹ How these questions relate to antidiscrimination concerns and court decisions that conflate status and conduct (discussed below) is important.

The shared minority status of LGBT groups and certain religious communities also deserves more attention than it receives in this book. As noted by two leading religious liberty scholars, “[s]exual minorities and religious minorities make essentially parallel claims on the larger society, and the strongest features of the case for same-sex civil marriage make an equally strong case for protecting the religious liberty of dissenters.”Footnote ¹² This also speaks to the design of US Supreme Court Justice Anthony Kennedy, who connected individual dignity to the constitutional rights to freedom of religion and same-sex marriage.Footnote ¹³ Perhaps a co-authored conclusion chapter was needed to recognize these mutual concerns and educate the public on the benefits of what professor Andrew Koppelman has described as “learn[ing] to live with moral confrontation.”Footnote ¹⁴

Another theme that needs further development is the appropriate role of the government in accommodating religious and/or sexual minorities. Whereas LGBT advocates desire for the government to strike down practices that undermine their full and equal participation in society—as Koppelman writes, “to stigmatize stigma, and make the prejudice that had been pervasive in society into something that citizens instinctively reject”Footnote ¹⁵ —conservative religious communities ask the government to “keep the way clear for adequately pursuing the basic goods” and only intervene to carve out exemptions from laws that would otherwise prevent their ability to obey conscience and religion (136). These are complicated issues, which is why a fuller discussion on the needs for SOGI laws and capacious religious liberty bills like the First Amendment Defense Act is necessary (33–34, 75, 123–24, 187).Footnote ¹⁶ This discussion should examine the role of both law and the market in protecting religion while ensuring full participation.Footnote ¹⁷ Laws that penalize businesses for refusing to serve the LGBT community may compound the likely reputational cost that comes with objecting.Footnote ¹⁸ And, as Nathan Oman notes, “society is not well served when markets become sites of religious martyrdom.”Footnote ¹⁹

Finally, concerns surrounding authority and identity also bring up an immensely important issue concerning the courts. Judges have consistently ignored the sincerely held beliefs of religious claimants who say their refusal to serve people who are lesbian, gay, bisexual, or transgender is connected with their perception of endorsing a same-sex marriage, which they considered sinful. For example, in a decision from Washington state, the court conflated the defendant's refusal to provide a flower arrangement in celebration of a same-sex wedding (conduct) with a refusal to serve the customer per se on the basis of that customer's sexual orientation (identity).Footnote ²⁰ In doing so, the court invoked a familiar string of citations that purvey a practice of refusing to make status/conduct distinctions when the conduct is “fundamental to the status of the person.”Footnote ²¹ An amicus brief in the case signed by nearly thirty of today's leading First Amendment scholars on both sides of the marriage debate summarized the problem with this approach by noting that the lower courts undervalued the defendant's “constitutional rights by misinterpreting her religious convictions as offensive and invidious.”Footnote ²² In doing so, the court was able to dismiss the defendant's first amendment defenses (such as speech, association) now having limited the issue to invidious discrimination instead of a freedom to expression.Footnote ²³

In sum, Corvino, Anderson, and Girgis's Debating Religious Liberty and Discrimination clarifies, but does not resolve, many legal and moral questions about religion, same-sex marriage, and the law. Most importantly, however, their book provides a template for engaging in meaningful dialogue on an issue of utmost importance. Students and academics are wise to take heed of the authors’ differences and similarities—learning from their concerns and seeking a way forward.