Peacemaking in the Culture War Between Gay Rights and Religious Liberty
73 Pages Posted: 30 Mar 2010
Date Written: March 25, 2010
This Article takes seriously two important legal claims. The first claim, increasingly sounded by opponents of marriage rights for same-sex couples, warns that when private or governmental institutions create rights for gay and lesbian people, those institutions simultaneously and inevitably threaten opponents’ rights of religious liberty. The second claim, articulated - surprisingly enough - by at least two federal district-court judges, is that legal disputes involving these potentially conflicting interests can and should be resolved through mediation. The thesis of this Article is that these judges are correct: mediation holds tremendous potential in legal disputes that pit “gay rights” against “religious liberty.”
The argument for mediation proceeds in three steps. First, the article presents cases that illustrate the supposed conflict between gay rights and religious liberty: Peterson v. Hewlett-Packard (a dispute between an employer who posted gay-affirming posters and an employee who posted Bible verses, some condemning homosexuality, in response), Parker v. Hurley (a dispute between a public school and parents over discussions and materials depicting same-sex couples and their families), and Startzell v. City of Philadelphia (a dispute over a city’s arrest of some street preachers who were protesting at a gay-pride festival). Next, the article describes mediation and four of its comparative advantages over unassisted negotiation or litigation in our paradigmatic cases: (1) it addresses psychological barriers to agreement; (2) it allows each disputant to develop a deeper and more nuanced understanding of the other; (3) it focuses on the parties’ ongoing relationship; and (4) it dovetails the parties’ different but often complementary interests. Finally, the article imagines how mediation might have dealt with the conditions that prevented negotiated resolution in each of the paradigmatic cases. In this effort, I am aided by interviews I conducted with participants in these cases. Conversations with some of the individuals involved reveal interests and perspectives that the pleadings and court opinions do not capture.
Keywords: mediation, negotiation, religion, sexual orientation, gay rights, education, employment, marriage
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