Gay rights activists, victorious in the culture war, face a choice
This past Thursday, Notre Dame’s Constitutional Studies program hosted Andrew Koppelman, the John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University, to discuss a timely topic: the conflict between the expansion of gay rights and the protection of religious liberty. Koppelman called such a conflict “unnecessary,” and proposed several compromises that, in his view, would leave both sides satisfied.
It is no secret that social conservatives have lost recent cultural, political, and legal battles. A string of Supreme Court decisions, culminating with 2015’s Obergefell v. Hodges decision, declared same-sex marriage to be a fundamental right guaranteed by the Constitution. Since then, the courts have had to grapple with cases where that right conflicts with the sincerely held religious or moral beliefs of small business owners.
Take, for instance, the recent U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. The owner of Masterpiece Cakeshop, Jack Phillips, was approached by a same-sex couple who asked if he would bake a custom cake for their upcoming wedding. While Phillips said he would be happy to sell them an undecorated cake off-the-shelf, he cited his religious beliefs in declining to bake a custom cake for the ceremony. The couple sued, leading the Colorado Civil Rights Commission, which enforces the state’s anti-discrimination laws, to enter a judgment against Phillips. On the case’s appeal to the U.S. Supreme Court, Phillips sought accommodation on the grounds of the First Amendment’s protection of religious free exercise.
The Court ruled narrowly in Phillips’ favor. In his majority opinion, Justice Anthony Kennedy cited the anti-religious animus exhibited by the Commission when reviewing Phillips’ case. One commissioner stated during hearings, “one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.” This, in the Court’s view, did not treat Phillips with the “neutrality” the First Amendment requires. But while Phillips did win his case, the facts of the case demonstrated the willingness of gay rights activists to go after those that hold traditional views of sexuality, something that Koppelman would address in his talk.
Koppelman admitted from the onset of his talk that he is in favor of same-sex marriage, but decried some of his allies on the Left who often compare opponents of same-sex marriage to opponents of interracial marriage back in the 1960s. After all, if homosexuality is an immutable characteristic like race, what legal bearing would there be to allow interracial marriages while disallowing same-sex ones? Koppelman rejected such an argument, but not based on any certain principle; instead, he often repeated the mantra that in situations like these, “abstract principles distract from the moral imperative of the situation at hand.” The compromise he advocated for was a results-oriented, consequentialist approach that would review allegations of discrimination on a case-by-case basis while granting wide exemptions for those with religious or moral objections to same-sex marriages.
In response to a question regarding the comparison between interracial and same-sex marriages, Koppelman pointed towards the recent trend in public opinion towards a greater acceptance of homosexuality and same-sex marriage as evidence that providing accommodation for those opposed to same-sex marriage would not “open the floodgates” to many exemptions that would greatly disrupt the life of a same-sex attracted person, saying that while racism is still strong in America, “homophobia is in retreat.” Indeed, Koppelman declared that “Jack Phillips is the wrong target,” instead arguing that there were many other issues, such as the prevalence of same-sex attracted and transgender people among the homeless population, that warranted more attention than a baker or a florist who simply wanted to live out their sincere religious and moral convictions in peace.
This lecture comes at a time when traditional views of marriage and sexuality are in retreat from the mainstream culture. Even here at Notre Dame, some conservative student groups have been subject to violent intimidation on the basis of their alleged homophobia and transphobia.
The question for now: will gay rights activists heed Koppelman’s advice and leave social conservatives alone? Or will they continue their pressure campaign against those who dare to hold traditional moral views in the public square?
Luke Koenigsknecht is a freshman electrical engineering major from Grand Rapids, Michigan. He was once told to stand guard while his companion attempted to sneak around the White House. He can be reached at email@example.com