The War Within
63 Pages Posted: 10 Jun 2018 Last revised: 24 Sep 2018
Date Written: September 21, 2018
The ‘culture war’ paradigm has come to dominate the legal discourse on conflicts between religious liberty and sexual and gender equality. Despite its intuitive appeal, this paradigm rests on a problematic methodology and flawed assumptions. As a result, the culture war paradigm misconceives religion as monolithically oppositional to equality and wrongly assumes that the conflict is a zero-sum game.
After identifying these problems, this article argues for an alternative framework that acknowledges the war that occurs within religion regarding equality challenges. The article argues that religious groups are diverse and dynamic and their response to sexual and gender nonconformity varies from opposition to tolerance in systematic and predictable ways. Drawing on qualitative and experimental evidence from the United States and Israel and on cases from a range of contexts, this article identifies a systematic practice of ‘social impact regulation,’ whereby religious decision-makers selectively apply and enforce religious norms based on the perceived impact of sexual nonconformity on the community and the social status of the religious norm.
The article discusses the consequences of this practice, demonstrates its breadth, and explores its implications for the culture war paradigm, for legal doctrine, and for the negotiation of conflicts between law and religion. It concludes with the argument that the current discourse must change. Religion and equality are interacting social processes, not incommensurable cultural opposites. The culture war paradigm should be modified or abandoned.
Keywords: culture wars, religion, law and religion, discrimination, equality, LGBT, gender
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