The Controversy Over Religious Liberty, Civil Rights, and Same-Sex Marriage, 14 First Amend

FIRST AMENDMENT LAW REVIEW Volume 14 | Issue 1 Article 2 9-1-2015 A Struggle for Recognition: The onC troversy over Religious Liberty, Civil Rights, and Same-Sex Marriage Steven J. Heyman Follow this and additional works at: http://scholarship.law.unc.edu/falr Part of the First Amendment Commons Recommended Citation Steven J. Heyman, A Struggle for Recognition: The Controversy over Religious Liberty, Civil Rights, and Same-Sex Marriage, 14 First Amend. L. Rev. 1 (2018). Available at: http://scholarship.law.unc.edu/falr/vol14/iss1/2 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in First Amendment Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. A STRUGGLE FOR RECOGNITION: THE CONTROVERSY OVER RELIGIOUS LIBERTY, CIVIL RIGHTS, AND SAME-SEX MARRIAGE STEVEN J. HEYMAN* ABSTRACT In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the principles of liberty, equality, and dignity that are enshrined in the Fourteenth Amendment. In the wake of this decision, the battle over marriage equality has shifted to a new front. Religious traditionalists assert that the legalization of same-sex marriage endangers their religious liberty, and they seek protections for those who object to such unions on religious grounds. For example, they contend that florists, bakers, and others who provide wedding-related goods and services should not be compelled to follow state civil rights laws that would require them to serve same-sex couples in the same way as opposite-sex couples. This Article explores the conflict between religious liberty and civil rights in connection with same-sex marriage. The Article begins by looking at the worldviews that animate the opposing posi- * Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology. A.B. 1979, J.D. 1984, Harvard. An earlier version of this Article was presented at a Chicago-Kent faculty workshop as well as at the "Conference on Freedom of (and from) Religion: Debates over the Accommodation of Religion in the Public Sphere" held at the University of California, Santa Barbara on April 30-May 2, 2015. 1 am indebted to the participants in those forums, as well as to Katharine Baker, Rachel Fulton, Patrick Goold, Maureen Graves, Sanford Greenberg, Joel Harrison, Andrew Heyman, Andrew Koppelman, Peter Lane, Nancy Marder, Pe- ter Montgomery, Justyna Regan, Christopher Schmidt, Peter Schuck, Alison Shih, Kent Streseman, Margaret Williams, and Todd Young for their thoughts on this project. Above all, I am grateful to Kate Baldwin, Mark Rosen, and Jeffrey Sher- man for many long and illuminating discussions on the subject. Finally, I wish to thank Mark Dasher and Katlyn DeBoer for their valuable research assistance. 2 FIRST AMENDMENT LAW REVIEW [Vol. 14 tions. The concerns of religious traditionalists go far beyond a fear that they will be compelled to do particular acts against their con- sciences. Instead, they believe that the advent of marriage equality will severely impede their ability to live out their faith in a wide range of areas, from family life and economic activity to political par- ticipation and religious practice. For this reason, traditionalists re- gard the legal recognition of same-sex marriage as a fundamental as- sault on their identity and way of life. But this view brings them into direct conflict with the aspirations of lesbian, gay, bisexual, and transgender people to live out their own values and to fully partici- pate in society. At the deepest level, the dispute over religious liberty and civil rights involves a clash between the identities of these two groups. The crucial problem is how this conflict can be resolved in a way that enables both groups to live together within a liberal demo- cratic society. After examining several other approaches, the Article argues that conflicts of this sort can be overcome only through mutual recognition-that is, only when the members of opposing groups recognize and treat one another as full and equal persons and members of the community, who possess all the legal and constitutional rights that inhere in this status. On this view, one has no right to infringe the rights of other persons simply because one believes (whether on religious or other grounds) that they are not entitled to enjoy those rights or the basic human goods that those rights serve to promote. This view has its roots in the Lockean natural rights theory that laid the foundations of the American constitutional order. The Article then offers a general account of the rights that in- dividuals have, and situates religious liberty and civil equality within that framework. Finally, the Article applies this approach to the cur- rent controversy. It argues that, while the principle of religious liberty protects the right to believe that same-sex relationships are im- moral and sinful, that principle does not give religious traditionalists a right to act on that belief in a way that is incompatible with the basic civil rights of same-sex couples, including their rights to marry and to receive equal treatment in the commercial sphere. A legisla- ture may choose to grant wedding-service providers a religious exemption from civil rights laws as a matter of prudence, charity, or 2015] A STRUGGLE FOR RECOGNITION 3 compromise. As a matter of principle, however, most providers are not entitled to demand such an exemption. But some providers are so closely involved with the wedding ceremony or the couple that they should not be compelled to take part. A BST RA CT ......................................................................................................................... 1 1. INTRODUCTION ...................................................................................................... 5 II. RELIGIOUS LIBERTY AND THE CLASH OF IDENTITIES ................................... 19 A. The Religious TraditionalistView of Sexuality and Marriage20 B. The Embodiment of TraditionalBeliefs in American Law...... 24 C. Why Do Religious TraditionalistsBelieve That Same-Sex MarriageThreatens Their Religious Liberty?..................... 32 1. Compulsion to Act Contrary to Conscience.................. 33 2. Compulsion to Recognize Same-Sex Marriages......... 33 3. Impact on the Traditionalists' Own Marriages............34 4. Impact on Their Child-Rearing......................................... 36 5. Impact on Their Educational Institutions...................... 36 6. Impact on Their Charitable Work.....................................37 7. Impact on Their Ability to Engage in Business and the Professions ..................................................................................... 38 8. Compelled Association ......................................................... 38 9. Impact on Their Relationship with the Political Com m unity ............................................................................. 40 10. Impact on Their Worldview and Identity as Believers ............................................................ 41 11. Conclusion ............................................................................... 43 D. The Clash with Lesbian, Gay, Bisexual, and Transgender (LGBT) Identity ............................................................................. 44 III. EFFORTS TO RESOLVE THE CONFLICT .......................................................... 46 A. The "Culture War"Approach........................................................ 47 B. The MajoritarianApproach........................................................... 48 C. The Religious Liberty Approach.................................................. 48 D. The Equality Approach................................................................... 52 E. The Balancing Approach................................................................. 53 F. The "Live and Let Live"Approach .............................................. 54 IV. MUTUAL RECOGNITION AND THE CONFLICT OF IDENTITIES.....................58 A . The Basic Idea ........................................................................................ 58 4 FIRST AMENDMENT LAW REVIEW [Vol. 14 B. Freedom, Dignity, and Recognition in Lockean Natural Rights T h eory .................................................................................................. 59 C. Recognition in Later NaturalRights Theory............................62 D. Mutual Recognition and the Struggle Between Groups..........63 E. Application to the Conflict Between LGBT People and Religious Traditionalists.............................................................. 64 F. Conclusion ............................................................................................... 71 V. RELIGIOUS LIBERTY AND CIVIL EQUALITY IN A FRAMEWORK OF RIGHTS ... 73 A. A Framework of Rights.......................................................................74 1. External Rights .......................................................................... 75 2. Personality Rights .................................................................... 75 3. Social, Economic, Political, and Cultural Rights.......... 76 4. Intellectual and Spiritual Rights........................................90 5. Equality Rights .......................................................................... 91 B. Religious Liberty, Civil Equality, and the Relationship Between Church

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