Culhane: Taking On Jonathan Rauch's Advocate Piece
Jonathan Rauch makes the clearest, most consistent conservative case for equality – especially marriage equality – that I’ve yet read. Even his opponents, on both the left and the right, accord him respect. (Andrew Sullivan recently referred to him as “Mr. Nice Gay.”) He deserves his reputation.
At times, though, Rauch’s conservatism causes him to call for compromises that are seriously flawed. Earlier this year, he took Judge Walker to task for his opinion stating that Prop 8’s denial of marriage equality was unconstitutional; for Rauch, the civil unions (domestic partnerships, actually) available in California should have been enough. He overlooked the fact that no reason was adduced at trial for conferring all of the benefits of marriage without the label – in other words, to engage in discrimination simpliciter.
Worse is his piece in this month’s Advocate. In an effort to achieve an elusive compromise between anti-discrimination laws and accommodating religious belief, he clatters far off the track. Please read the entire piece. It’s beguiling in its apparently reasonable call for LGBT advocates to tolerate some (unspecified) level of discrimination, but his seemingly commonsensical call for civility falls apart under a closer reading.
At the risk of oversimplifying his exhaustively developed argument, here are his main points: (1) Mainstream opinion has shifted in our favor, with a majority of Americans polled now declaring that they don’t think homosexuality is immoral; (2) It’s therefore time to start acting like a majority instead of like a beleaguered minority, and to show charity and compassion for those who object to our full equality on religious grounds; and, relatedly, (3) It’s not wise to insist on rigorous, unyielding enforcement of existing laws in our favor. Where we can accommodate religious objections, we should.
He’s wrong on every count. First, the entire article depends critically on believing that polling data indicating (bare) majority approval of homosexuality means that we’ve won (or at least that we’re winning).
Not so fast. A simple, binary “yes/no” on the morality of homosexuality, while a promising development, doesn’t necessarily translate into success on any specific issue. It might be, for example, that a substantial percentage of those who think homosexuality isn’t immoral object to same-sex marriages anyway, or that others don’t see protecting the LGBT community from job discrimination (note that the “T” doesn’t appear in Rauch’s piece) is terribly important.
And it seems to me that the national data, and Rauch, miss the local effect. It’s precisely those places where homosexuality is least accepted that are likeliest to create the greatest number of practical problems for the LGBT community. I’d expect many more instances of religious objections to equality in, say, Oklahoma, than I would in Philadelphia. But red states are exactly where it’s most important to place the force of law behind the anti-discrimination imperative.
I understand that Rauch is making a more general point here, about a movement toward acceptance that might have reached a tipping point. But given all the work this poll is being called upon to do, the use of the data seems a bit facile, to me. The first year in which homosexuality has lurched across the 50% approval line seems insufficient occasion to declare imminent victory, and Rauch’s recognition that there are still victories to be won comes across as grudging, in context.
Now to the second and third points, which are intertwined. Rauch tries to bolster his argument by opening his piece with a carefully chosen example: A “mom and pop” bakery – not a large corporation, of course – refuses to bake rainbow cupcakes for a college Gay Pride event. The students accept the decision and vow to continue dialogue on LGBT issues, but the city launches an investigation into the event, with the eviction of the business from city-owned property a possible outcome.
Rauch deplores the second of these outcome, referring to it as “positively dangerous”. He wants you to ask: Are they really going to kick out these long-term, family tenants over something like cupcakes? I mean, who cares?
His argument depends critically on diverting the reader’s attention from what’s really at stake here. I’d guess that the same religious views that prevented the baking of rainbow cupcakes (for the gays, but not for the second-grade Rainbow Pageant) would also make that same “mom and pop” unlikely to hire a gay employee, or to fire him if he came out – say, by getting married to another man. Would that be OK?
What about a teacher who refused to teach a unit on family inclusion that mentioned gay and lesbian-parented households? (The private/public distinction isn’t available to Rauch because he thinks that the discriminatory bakery should be able to retain its place on city property.)
What if “mom and pop” decided to open a bed and breakfast and didn’t want to accommodate same-sex couples? Let’s use a pointed example: You and your same-sex spouse see the “Vacancy” sign, and walk to the front desk. You’re tired and sleepy after a long day on the road. You’re turned away, and not nicely. (By the way, the same could happen to an unmarried opposite-sex couple under the “religious (sometimes) trumps civil rights” view of Rauch. Should that be OK, too? Or is it only the gays who need suffer the withering reprovals of the ”tsk-tsk” brigade?)
Are these costs “we” can – or, more to the point, must – live with? Rauch doesn’t say, nor does he provide any standard by which to begin to answer the question.
Even the facially silly cupcake example can be reworked, with little imagination, to up the cost: Imagine that the student asking for the dazzling treat was mercilessly bullied as a kid, and is just now developing a healthy sense of self. To him, the refusal will have a very different meaning than it would for Rauch, or for me.
It’s precisely this difficulty in drawing the line that dooms Rauch’s fuzzy call to…non-action. Any statutory religious exemption beyond activities clearly at the core of the entity’s ecclesiastical mission – celebrating weddings, training clergy – quickly runs into all kinds of line-drawing impossibilities.
Some, like Robin Fretwell Wilson, try to limit the problems by restricting proposed religious exemptions to non-discrimination laws to actions that are closely tied to recognition of same-sex weddings. To his credit, Rauch understands that there’s just no principled reason for roping off that category; if we want to recognize religious accommodations, it’s hard to see any good reason for limiting them in that way.
In a series of posts last year, I argued for a different kind of accommodation: Businesses that are anti-gay should be able to make their religious views known, but not otherwise able to act on them in any way. For many, a choice between a gay-friendly and a homo-hating business will be clear, and they’ll go somewhere else. But laws of general application should apply…generally. Or else it’s hard to see why exemptions should be limited to disapprovals of homosexuality, generally. Plenty of religious doctrine opposes the equality of women, even today. Should businesses be able to act on that?
One last point: Rauch doesn’t want to give the religionists a rhetorical weapon by allowing them to claim the label of oppression, saying that they’re being treated as “bigots.”
But they’ve already made this move, even where we don’t have laws protecting us. When we do get those laws, there won’t be any need to name-call: The law will speak clearly enough.
John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Del. He blogs about the role of law in everyday life, and about a bunch of other things at: http://wordinedgewise.org. He is the editor of and contributor to a just-released book, Reconsidering Law and Policy Debates: A Public Health Perspective, now available on Amazon.com. His chapter is on marriage equality.