Letter of Support for the Fairness For All Approach

Posted on October 9, 2019

We are constitutional law scholars who have studied, taught, and written about the law of religious liberty for decades. We have persistently argued for religious liberty in legislatures and in the courts.

We have long been concerned about legal clashes between those who cherish the fundamental right to religious liberty and those who advocate new legal protections for the civil rights of LGBT people. These conflicts have led many Americans to conclude both that traditional believers seek a general “license to discriminate” and that hostility to the LGBT community is the public face of Christianity.

Neither charge is true, but the perception is real, and it has done much damage to persons of faith. There is much less support for religious liberty and much less tolerance of traditional religious values than before these legal clashes arose. Religious believers, organizations, schools, and charities that openly uphold traditional beliefs regarding marriage, gender, and sexuality face increasingly serious threats from aggressive forces inside and outside government.

There is a better way. We support balanced civil rights legislation that broadly protects religious institutions and believers in practice, doctrine, and conscience, while also broadly protecting LGBT persons in employment, housing, and public accommodation. We believe that supporters of religious liberty who do not favor a general “license to discriminate” against LGBT people need to say so publicly and support laws that protect the core interests of both sides.

LGBT people still face discrimination.  Many of these cases arise in secular and nonsexual contexts where there is no plausible claim that religious faith is the reason for discriminating. Few, if any, Americans sincerely believe that God wants LGBT persons to be unemployed, homeless, or without access to basic goods and services.

More than half of Americans live in jurisdictions where state or local laws already protect LGBT people from discrimination. But most of these laws do not strike an adequate balance with religious liberty. Nearly all state law protections were enacted before the Supreme Court’s marriage decisions and therefore do not address the most religiously sensitive conflicts. The proposed federal “Equality Act” would go even further, exempting itself from existing protections in the federal Religious Freedom Restoration Act.

The experience in Indiana with attempts to enact a state Religious Freedom Restoration Act, and less publicized failures in Georgia, Michigan, Ohio, and West Virginia, show that except in the reddest states, the religious side cannot pass additional religious liberty legislation without making adequate provision for LGBT rights. And LGBT advocates cannot pass gay-rights legislation in Congress or in red states without making adequate provision for religious liberty. But blue cities in red states can pass gay-rights ordinances, and they are doing so with the barest protections for religious liberty, or sometimes none at all.

Legislative efforts to protect both religious liberty and LGBT rights signal that supporters of religious liberty are not just seeking to protect themselves while remaining hostile or indifferent to the legitimate concerns of others. Such even-handed measures show a willingness to find reasonable settlements so that all persons can live in peace and freedom.  While no legislative compromise is perfect, in the long run such an approach is much more likely to attract a broad and sustainable base of support for essential religious liberties. The culture war over LGBT rights has gone far to brand legitimate religious liberty concerns as merely a front for bigotry; perpetuating that war can only perpetuate the misbranding.

Some religious liberty advocates believe they can rely exclusively on litigation to defend our fundamental liberties. We have long experience with religious liberty litigation, including representation of parties or friends of the court in many cases before the United States Supreme Court.  Victory in litigation is never certain. The new conservative majority in the Supreme Court may be more sympathetic to religious liberty, but that does not mean that all important religious liberty claims will suddenly become winners. For example, the Court has long held that legislatures can attach regulatory conditions when they grant public money to private institutions, and conservative justices may be quite reluctant to change that rule. Moreover, judicial losses can be devastating, leading to further legislative and judicial defeats in areas once thought secure.  Even in a best-case scenario, courts can take years and even decades to deliver, one case at a time, the broad-based protections that wise legislation can provide. In the meantime, those caught up in litigation pitting religious rights against LGBT rights face enormous private and public costs and unfair but serious reputational damage.

Any search for common ground is likely to yield legislation that will be criticized for not being ideologically pure or for not delivering perfect results. No compromise legislation can resolve all conflicts to everyone’s satisfaction. But sound legislation can provide basic freedom and security for all persons impacted by these controversies, reducing destructive and unsustainable existential conflict. We are told that serious negotiations to this end have made substantial progress. Confidentiality is essential until agreement is reached. Few of us have seen even parts of a proposed text, and none of us has seen a final proposed text, but we strongly endorse the general approach. Religious conservatives should embrace this approach while there is still time.

 

Signed,

Thomas C. Berg

James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law

 

Carl H. Esbeck

R.B. Price Professor Emeritus of Law
Isabelle Wade & Paul C. Lyda Professor Emeritus of Law
University of Missouri School of Law

 

Douglas Laycock

Alice McKean Young Regents Chair Emeritus
The University of Texas at Austin School of Law

 

Michael W. McConnell

Richard and Frances Mallery Professor
Director, Constitutional Law Center
Stanford Law School

 

Robin Fretwell Wilson

Roger and Stephany Joslin Professor of Law
Director, Program in Family Law and Policy
Director, Epstein Health Law and Policy Program
University of Illinois College of Law
 

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