RFRAs and Reasonableness
27 Pages Posted: 18 Sep 2015
Date Written: September 16, 2015
Throughout the debate over gay/lesbian rights and religious liberty, prominent scholars and commentators have called for moderation and compromise. A way must be found, they have urged, for these two fundamental American values – the equal rights and dignity of all persons, and the freedom of religious exercise and conscience – to coexist. This Essay seeks to contextualize and advance this conversation about coexistence. This is not an article about doctrine. Nor is it a prescription for how one side or the other can “win” this particular culture war. There is, of course, a vast literature on social movement organizations and their relationship to law, but nor is this an article about theory or retrospective assessment of strategies and accomplishments. Rather, my suggestions are forward-looking and normative. I simply offer a few observations about what moderation and reasonableness might look like in the context of the struggle between LGBT rights and religious liberty. I identity some of the excesses to which both sides are prone, and I suggest that the ways in which the combatants in this particular culture war conduct themselves – specifically, the decisions they make about how and when to use law to advance their respective causes through litigation – will be the most important factor in determining whether or not it is possible to attain some measure of balance, if not peaceful coexistence, between LGBT rights and religious liberty. The rest of us should judge their conduct accordingly, and if Americans do so, it likely will help determine the long-term fates of both movements.
Keywords: religion, gay, gay marriage, LGBT, LGBT rights, same-sex marriage, same sex marriage, RFRA, religious freedom, religious liberty
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