Gay Rights, Religious Liberty, and the Misleading Racism Analogy
BYU Law Review, Forthcoming
33 Pages Posted: 18 Jul 2020 Last revised: 8 Oct 2020
Date Written: July 15, 2020
Should religious people who conscientiously object to facilitating same-sex weddings, and who therefore decline to provide cakes, photography, or other services, be exempted from antidiscrimination laws? A common response is that conservative condemnation of gay sex and marriage is as evil as racism, and those who hold that view should likewise be disqualified from religious accommodations. This article disambiguates the racism analogy, which is actually several different analogies. One might be comparing (1) their effects, (2) their moral errors, (3) the evil intentions of those who hold them, or (4) their status as views that are appropriately stigmatized. There are important differences. Religious heterosexism is (5) generally nonviolent. And (6) unlike in 1964, when the Civil Rights Act was passed, religious claims can be accommodated without defeating the point of the law.
Keywords: Gay rights, Religious Liberty, First Amendment, Constitutional Law, Racism
JEL Classification: K10, K30
Suggested Citation: Suggested Citation