Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT Rights
43 Pages Posted: 11 Feb 2016
Date Written: February 9, 2016
This Article tests the claim made by opponents of expanded rights for lesbian, gay, bisexual and transgendered (“LGBT”) individuals that legislators should resist enacting legislative compromises that expand LGBT rights while insulating religious believers who adhere to traditional views of marriage and sexuality. Influential conservative thought leaders like Princeton Professor Robert George contend that bargains reached over LGBT rights will be fleeting. This Article shows that, to the contrary, the bargains reached around marriage equality over the last decade have proven stable since enactment. But more telling, decades-old exemptions to racial nondiscrimination laws, known as the “Mrs. Murphy” exemptions, remain in place in the 1964 Civil Rights Act and the 1968 Fair Housing Act, withstanding repeated take-back attempts — even as attitudes towards race have radically changed.
Many see religious liberty protections as in tension with LGBT rights. Yet concessions for religious beliefs in state marriage equality laws helped bring same-sex marriage to couples years before it would have been democratically adopted — much as the compromise over the reach of the 1964 and 1968 Acts made great progress on civil rights possible. Experience with racial nondiscrimination measures suggest that these new bargains will endure — notwithstanding dramatically shifting views about the underlying civil right — because the bargains rest on a balancing of competing interests. As states and the federal government take up the challenge to extend sorely needed protections against discrimination to the LGBT community, the stability of arrived-at social bargains will be a crucial consideration in whether parties are willing to negotiate in the first place.
Keywords: family law, law and religion, civil rights, gay rights, constitutional law, LGBT
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