In the Court of Koppelman: Motion for Reconsideration

19 Pages Posted: 3 Aug 2020

Date Written: July 22, 2020


When it comes to the issue of whether laws protecting LGBTQ people against discrimination in the commercial marketplace should include religious exemptions, few scholars have written as extensively as Professor Andrew Koppelman. In his latest piece on the topic, “Gay Rights, Religious Liberty, and the Misleading Racism Analogy,” Koppelman portrays opposition to such exemptions as being almost entirely grounded in a moral conviction that business owners who turn away same-sex couples seeking wedding services are as bad as “evil” racists.

This Response contends that Koppelman has not correctly identified the prevailing argument against religious exemptions in the commercial sphere. Rather, he conflates two very different things: (1) the drawing of *legal* analogies between the statutory treatment of race discrimination and other types of discrimination, including religious discrimination, sex discrimination, marital-status discrimination, and sexual-orientation discrimination, and (2) an insistence on treating race discrimination and sexual-orientation discrimination as *morally* and *sociologically* equivalent in all respects. Number 1 is quite common in the scholarship arguing against exemptions. Number 2 is not.

The reason public accommodations laws prohibit discrimination against customers is not to ensure punishment of “evil” business owners. The reason is to ensure that customers do not face the indignity of being treated as second-class citizens in the public marketplace. Accordingly, this Response urges Professor Koppelman to reconsider his current position on the wedding-vendor cases, which involve claims for unprecedented exemptions that would upend a long-settled norm previously endorsed by Koppelman himself: “Businesses in the commercial marketplace . . . cannot discriminate simply because business owners sincerely believe that their discrimination is justified.”

Keywords: Religious Exemptions, LGBTQ Rights, Public Accommodations, Discrimination

JEL Classification: K10, K30

Suggested Citation

Oleske, Jr., James M., In the Court of Koppelman: Motion for Reconsideration (July 22, 2020). 2020 BYU Law Review, Forthcoming, Available at SSRN:

James M. Oleske, Jr. (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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