Bathrooms and Bakers: How Sharing the Public Square Is the Key to a Truce in the Culture Wars in Religious Freedom, LGBT Rights, and the Prospects for Common Ground
Chapter Two, Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson, eds. Cambridge Univ. Press, 2018
21 Pages Posted: 3 Jan 2019 Last revised: 9 Jan 2019
Date Written: September 28, 2018
In most of the US, access by LGBT persons to public places follows a red/blue fault line. In twenty-nine red states, businesses can tell LGBT people to get out, with impunity. In twenty-one blue states, nondiscrimination laws predating marriage equality, written without marriage in mind, do not account for religious views of marriage; here, the baker who cannot for religious reasons celebrate same-sex weddings can be told to “get out” – with the business fined and sometimes closing. The longstanding structure of public accommodations laws – that every service must be provided alike or nothing provided – perpetuates conflict, stalling new sexual orientation and gender identity (SOGI) nondiscrimination laws. Compounding matters, opponents have labelled SOGI protections “bathroom bills,” blocking public accommodations laws protecting the full LGBT community since 2008. This chapter argues that laws should regulate business, not individual owners. It is possible to authorize businesses to share restrooms in a way that preserves the dignity and privacy of all patrons, just as legislators can construct laws that ensure no one is turned away from a business on Main Street while keeping religious bakers in business. New models for sharing the public square are the key to a truce in the culture wars.
Suggested Citation: Suggested Citation