“Mutual Adjustment” of Conflicts between Liberty and Equality versus Winning It All: Response to Rick Garnett

James E. Fleming & Linda C. McClain

We appreciate Rick Garnett’s kind words about our book, Ordered Liberty, especially since he probably disagrees with us more than any of the other participants in this symposium. He expresses the worry that what we call “mutual adjustment” of conflicts between liberty and equality–especially in the clash between freedom of religion and securing equality for gays and lesbians–is merely prudential delay of “congruence” between liberal virtues and values inculcated by government and those inculcated in civil society, including by conservative religious associations and religious families.

In situations involving clashes of rights, or more precisely, clashes of higher order values underlying rights, we do not simply argue, contrary to Garnett’s position, that the liberal side wins. Nor do we say, as he evidently would, that the conservative side wins. We suggest that one way to resolve or at least mitigate the clash is to secure the status of equal citizenship for gays and lesbians while also granting exemptions on grounds of religion. Each side gives up something through the mutual adjustment rather than one side or the other winning it all.

We wish to make clear that we were not offering a general theory of religious liberty or of religious exemptions. We may at some point work up a fuller view of whether and when the Constitution permits or requires such exemptions. We meant our closing remarks on prudence (174-76) to be an exhortation to liberals to be more respectful toward and accommodating of religious liberty (especially the convictions of religious conservatives), but at the same time to tender the hope that religious conservatives will come over time to appreciate the public values of non-discrimination and free and equal citizenship for gays and lesbians. More generally, in circumstances of social change, such strategies may be more effective–with respect to both sides–than continuing to wage a war to win it all.

We should also clarify that we were not suggesting that a liberal regime should grant religious exemptions only on a short-term, prudential basis, or only as a prudential strategy. We were simply saying that this is one justification for exemptions in such circumstances of social change and suggesting that at some point they might no longer seem necessary or fewer citizens would exercise them, once more citizens come to appreciate gays and lesbians as equal citizens and, in the case of civil marriage, come to see that allowing gay men and lesbians access to civil marriage does not threaten religious marriage or religious liberty. In our book, we use the example of New York’s Marriage Equality Act to illustrate that both distinguishing between civil marriage and religious marriage and enacting robust exemptions for religious and benevolent institutions were critical to passage of the law. Notably, the highly-publicized Mehlman friend of the court brief filed last week in Hollingsworth v. Perry–by “social and political conservatives, moderates, and libertarians” in support of the constitutional challenge to Prop 8–emphasizes the distinction between civil marriage and religious marriage. It states: “providing access to civil marriage for same-sex couples . . . poses no credible threat to religious freedom or to the institutions of religious marriage,” given “the robust constitutional protections for the free exercise of religion.”

Finally, we should point out that the congruence furthered through “mutual adjustment” to secure the “central range” of both liberty and equality is thin and narrow–not a thoroughgoing congruence but only recognition that gays and lesbians have rights not to be discriminated against with respect to basic liberties and in public accommodations. That leaves considerable room for religious convictions not in congruence with liberal public values.

It is worth noting the dramatic change between 1996 and today in terms of “congruence” with respect to marriage. When Congress passed the Defense of Marriage Act, it offered as a rationale that the Act properly reflected and honored “a collective moral judgment” that traditional heterosexual marriage better comported with “traditional (especially Judeo-Christian) morality” and that it properly signaled “moral disapproval of homosexuality” and same-sex unions. In the litigation over Colorado’s Amendment 2, culminating in the Supreme Court striking it down in Romer v. Evans, many religious organizations argued that Amendment 2 properly promoted marriage and the traditional family and reflected majority moral disapproval of homosexuality. Moreover, they argued that religious exemptions from antidiscrimination laws were burdensome and insufficient. Instead, as the amicus brief of the Christian Legal Society and other religious organizations argued, Colorado, with Amendment 2, could resolve the conflict that antidiscrimination laws allegedly created for religious institutors “simply and unequivocally, in favor of religious liberty.” Clearly, these religious groups argued for congruence between their commitments and civil law, and exemptions simply would not do.

Today, it appears that the majority view about homosexuality is shifting and a majority now supports same-sex marriage. Nonetheless, some religious opponents of same-sex marriage similarly find exemptions inadequate. They contend that the civil definition of marriage must reflect a “true” understanding of marriage as reflected in religious teaching as the conjugal union of one man and one woman. Thus, we wonder whether the issue is really adequate protection of religious liberty and avoiding forced congruence; perhaps instead they are attempting to maintain the traditional congruence as to the one man-one woman definition of marriage. In this situation of conflict, we seek “mutual adjustment,” whereas such religious opponents of same-sex marriage will settle for nothing less than winning it all.

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