Die and Let Live? the Asymmetry of Accommodation

42 Pages Posted: 22 Aug 2014

Date Written: August 21, 2014

Abstract

In culture war battles over same-sex marriage, one group of scholars (“the moderators”) offers what is held out as a “live and let live” truce: same-sex marriage would be legalized, qualified by exemptions to protect groups and individuals who oppose same-sex marriage on religious grounds against liability or legal sanctions. The appeal of this proposal lies in part in its implicit claim to symmetry. The compromise– namely, same-sex marriage with religious exemptions-- is said to respect the legitimate interests of each side. Consequently, the moderators view both religious conservatives and secular egalitarians who decline to embrace the compromise as intransigent, and as unreasonably attempting to “impose their values” on others.

This essay criticizes the moderators’ implicit claim of symmetry. In fact, neither rejection of same-sex marriage nor legalization qualified by exemptions is equally respectful of each side’s interests. Both sides understand this fact, and they understand that it is better to be in a position of granting accommodation than to be in need of accommodation. In addition, the parties face different risks if they find themselves in a politically subordinate position and hence in need of accommodation. The final section of the essay considers the likelihood that either party, if politically dominant, will be inclined to accommodate the other party. While emphasizing that the question is inherently speculative, the essay argues (contrary to much academic opinion) that Christian conservatives have both the intellectual resources and the historical experience to support an attitude of tolerance. Whether secular egalitarianism has these toleration-supportive ingredients is more uncertain.

Keywords: religious freedom, culture wars, accommodation, civil rights, contraception, abortion, marriage

JEL Classification: K10

Suggested Citation

Smith, Steven Douglas, Die and Let Live? the Asymmetry of Accommodation (August 21, 2014). San Diego Legal Studies Paper No. 14-162. Available at SSRN: https://ssrn.com/abstract=2484801 or http://dx.doi.org/10.2139/ssrn.2484801

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

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