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Inclusion, Accommodation, and Recognition: Accounting for Differences Based on Religion and Sexual Orientation

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Inclusion, Accommodation, and Recognition: Accounting for Differences Based on Religion and Sexual Orientation INCLUSION, ACCOMMODATION, AND RECOGNITION: ACCOUNTING FOR DIFFERENCES BASED ON RELIGION AND SEXUAL ORIENTATION DOUGLAS NEJAIME* This Article analyzes the rights claims and theoreticalframeworks deployed by Christian Right and gay rights cause lawyers in the context of gay-inclusive school programming to show how two movements with conflicting normative positions are using similar representational and rhetorical strategies. Lawyers from both movements cast constituents as vulnerable minorities in a pluralis- tic society, yet they do so to harness the homogenizing power of curriculum and thereby entrench a particularnormative view. Ex- ploring how both sets of lawyers construct distinct and often in- compatible models of pluralism as they attempt to influence schools' state-sponsored messages, this Article exposes the strengths as well as the limitations of both movements' strategies. Christian Right lawyers'free speech strategy-articulatingrelig- ious freedom claims through the secular language of free speech doctrine-operates within an inclusion model of pluralism. This model stresses public participationand engagement with differ- ence. After making significant advances over the past several years, lawyers have begun to employ the inclusion model with some success in the school programming domain, despite signfi- * Sears Law Teaching Fellow, The Williams Institute, UCLA School of Law; Associ- ate Professor, Loyola Law School (Los Angeles) (beginning Summer 2009). J.D., Harvard Law School, A.B., Brown University. I am indebted to the Williams Institute for supporting this project. I would also like to thank the following individuals for their feedback: Rick Abel, Tony Alfieri, Scott Barclay, Stuart Biegel, Fred Bloom, Brondi Borer, Devon Carbado, Mary Anne Case, Amy Cohen, David Cruz, Scott Cummings, Kevin den Dulk, Gary Gates, Jennifer Gerarda-Brown, Suzanne Goldberg, Maryam Grif- fin, Lani Guinier, Janet Halley, Joel Handler, Cheryl Harris, Nan Hunter, Jerry Kang, Rob Kar, Sonia Katyal, Chris Littleton, Jennifer Mnookin, Melissa Murray, Shaun Paisley, Nancy Polikoff, Darcy Pottle, Jeff Redding, Adam Romero, Jennifer Rothman, Bill Ru- benstein, Austin Sarat, Stuart Scheingold, Brad Sears, Ann Southworth, Dean Spade, Nomi Stolzenberg, Katherine Trisolini, Mary Valentine, Eugene Volokh, Jordan Woods, Steve Yeazell, and especially Russell Robinson. I am grateful to those in attendance when I presented this Article at the Williams Institute Works-in-Progress Spring 2008 Series, the 2008 Law & Society Conference, and the UCLA Law Faculty Colloquium. I am also indebted to Nima Eshghi, Michael Kavey, and Sharon McGowan for providing helpful information and materials. This Article benefited from excellent research assis- tance from Brain Alden and research support from the law librarians (and especially Lee Ann Fullington) at UCLA's Hugh & Hazel Darling Law Library. Finally, I would like to thank the editors of the HarvardJournal of Law & Gender, especially Stefani Johnson, Daniella Genet, Katie Eubanks Grayson, and Sarah Bertozzi, for their thoughtful work on this piece. Harvard Journal of Law & Gender [Vol. 32 cant doctrinal and remedial limitations. At the same time, Chris- tian Right lawyers assert parental rights andfree exercise claims in curricularchallenges. Such claims rely on an accommodation model of pluralism that permits selective withdrawal based on re- ligious beliefs and thereby resists active engagement with differ- ence. This strategy struggles in the face of a well-accepted view of civic education that values exposure to diversity-a view bound up with the success of the Christian Right's inclusion model of pluralism. Gay rights lawyers respond to Christian Right claims by drawing on a left multicultural model of pluralism. This model conceptualizes lesbians and gay men as identity holders (rather than sex actors), and in doing so succeeds in justifying the inclu- sion of sexual orientation in programming that prioritizes diver- sity. The left multicultural claim stalls, however, when it demands the state's affirmative cultivation of respect by asserting students' rights to gay-inclusive instruction. In the end, both the Christian Right and gay rights movements make important advances yet face significant tensions as they craft doctrinal claims that operate within competing models of pluralism. TABLE OF CONTENTS Introduction .................................... ............... 305 I. Representing Christian Right and Gay Rights Movements .. 319 A. The Gay Rights Movement ........................... 320 B. The ChristianRight Movement ....................... 322 II. Turning to Schools ....................................... 327 III. Situating Doctrinal Claims Within Models of Pluralism .... 338 A. Inclusion Based on Free Speech ...................... 339 B. Accommodation Based on Parental Rights and Free Exercise ............................................ 347 1. ParentalRights Claims .......................... 350 2. "Hybrid" ParentalRights/Free Exercise Claims ... 354 IV. Ideological Stakes and Implications....................... 359 A. "Mere Exposure" and Liberal Pluralism .............. 360 B. Mozert Redux ....................................... 365 C. Identity Politics and Sex(ual Orientation).............. 369 V. The Limits of Multiculturalism............................ 374 A. Affirmative Rights ................................... 374 B. Law as a Political Tool .............................. 377 Conclusion ..................................................... 381 2009] Inclusion, Accommodation, and Recognition INTRODUCTION Gay rights advocates and religious conservatives seem to have little in common. They engage in bitter public disputes, adversarial litigation, and counterpunching media campaigns in what has come to be thought of as a "culture war."' Yet a closer look reveals that commonalities emerge in the realm of representational strategies. Both sides believe in the potential of court-centered advocacy and in the power of minoritizing rights claims.' Both sides frame these rights claims in the language of pluralism. Both sides see schools as a compelling location to advance pluralist ideals. And both sides attempt to articulate brands of pluralism that accommodate more far-reaching normative agendas. These commonalities have engaged both sides in a battle over what a pluralistic society, specifically with regard to sexual orientation and religion, ought to look like. How does a pluralistic society account for differences in sexual orientation? Do lesbians and gay men form a stable, identity-based group with collective claims? May parents shield their children from in- struction that presents their orthodox religious beliefs as subjective? What if such parents (and their children) otherwise want to participate fully in soci- I I use the singular "culture war," since this term tracks the most common language used by both religious conservatives and scholars. See, e.g., Kevin den Dulk, Purpose- Driven Lawyers: Evangelical Cause Lawyering and the Culture War, in THE CULTURAL LIVES OF CAUSE LAWYERS 56 (Austin Sarat & Stuart Scheingold eds., 2008); Thomas More Law Center, Another Marine Officer Has Landed: Brandon Bolling Joins the Thomas More Law Center, Sept. 24, 2007, http://www.thomasmore.org/qry/page.taf? id=63&_function=detail&sbtblctuidl =93 (announcing new attorney hire, Thomas More Law Center ("TMLC") Chief Counsel, Richard Thompson, explained that lawyers with combat backgrounds "make great lawyers in the Culture War"). Even James Davison Hunter, whose foundational scholarly account on the topic appeals to "culture wars" in its title, repeatedly refers to the singular "culture war" throughout the text. JAMES DAVISON HUNTER, CULTURE WARS: THE STRUGGLE TO DEFINE AMERICA xi, xii, 34, 43, 46, 48-51, 67 (1991). Indeed, Hunter situates the struggle over gay rights as a central issue in the "culture war." See id. at 189 ("Both sides of the contemporary cultural divide understand the critical importance of homosexuality for the larger culture war."). 2 use the term "minoritizing" throughout this Article to reflect a discursive and representational strategy in which advocates prioritize group-based difference to paint their constituents as an identifiable, vulnerable minority group and as like other minority groups, regardless of the descriptive accuracy of the claim. Janet Halley uses this term, which she borrows from Eve Sedgwick, when she discusses gay rights advocates' "like race" arguments. Janet E. Halley, "Like Race" Arguments, in WHAT'S LEFT OF THEORY? NEW WORK ON THE POLITICS OF LITERARY THEORY 40, 48 (Judith Butler, John Guillory, & Kendall Thomas eds., 2000). Halley explains that "often pro-gay advocates draw minori- tizing models out of the legal representations of race groups, invoking a pictorial resem- blance between racial minorities and gay men, lesbians, and bisexuals." Id. at 49-50; see also EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 88 (1990) (associating a minoritizing view of sexual definition with "gay identity," "essentialist," and "civil rights models"). Hans Hacker uses a somewhat similar term-"minoritarian"-to de- scribe the strategies of lawyers at Christian public interest law firms. He argues that these litigators "represent a minoritarian offshoot within the movement": instead of "casting Christian's [sic] claims as part of majoritarian politics ... they provide courts with arguments presenting Christians as a protected minority .... " HANS J. HACKER, THE CULTURE
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