The War Within Religion: Towards a More Nuanced Resolution of Religion/Equality Conflicts
American Journal of Comparative Law, forthcoming
62 Pages Posted: 10 Jun 2018 Last revised: 23 Sep 2021
Date Written: August 1, 2021
In the United States, Canada, Israel, Australia, and many parts of Europe, conflicts between religious liberty and gender equality (including LGBTQ equality) are understood and analyzed as ‘culture wars’. This view has shaped the socio-legal understanding of the conflict—how the legal community makes sense of cases and interprets their social significance —and has narrowed the perceived scope of solutions to religion/equality conflicts to zero-sum, either-or decisions: either a carte blanche for religious objectors or a strict and universal enforcement of anti-discrimination law.
Drawing on qualitative (N=41) and experimental (N=559) evidence from the U.S. and Israel and on cases from a range of countries and contexts, this article makes two arguments: First, the understanding of religion/equality conflicts shall not be complete unless we recognize that they occur both *between* and *within* cultures. The two wars are connected in a feedback loop, as the struggle within religion influences what conflicts enter the culture war--and what conflicts leak out.
Second, the war within religion has normative implications: in this struggle, religious communities form intermediate solutions to regulate—and mitigate— religion/equality conflicts. These nuanced policies can help expand the nuance and scope of legal solutions to the conflict.
But how? I compare three legal approaches to solving religion-equality conflicts: an approach that *demands* religious parties to apply nuanced regulations to maximize tolerance and reduce friction with equality rules; an approach that *rejects* the application of nuanced religious solutions and denies exemptions from parties that apply them; and an *intermediate* approach that does not deny nor does it require the application of nuanced religious solutions, but may treat more favorably a party with a record of using such policies in an inclusive manner.
I show that each approach comes with some benefits and costs for religious autonomy and for the pursuit after equality, and I discuss considerations for choosing among approaches, including the extent to which the approach successfully transcends the either-or debate on religious exemptions, as well as its broader social consequences. These considerations tentatively recommend the *demanding approach* or the *intermediate approach*, subject to further research on the broader social consequences of the two approaches.
Drawing on the war within religion to advance the legal treatment of religion/equality conflicts is a timely intervention at a time when many courts, including post-Fulton SCOTUS, struggle with setting a clear rule on this issue and signal interest in finding more nuanced resolutions for the conflict.
Keywords: culture wars, empirical legal studies, comparative constitutional law, religion, equality, conflict resolution, Fulton, sexual orientation, gender
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