Scholars Promote Bridging the Culture Wars at Court/Clergy Conference
by Douglas Potts
Can American society close the divide between LGBT civil rights and religious liberty? Two scholars known for building bridges in the culture wars shared their insights with clergy, judges, and lawyers at the 2018 Sacramento Court/Clergy Conference. Prof. Robin Fretwell Wilson of the University of Illinois College of Law and Prof. John Corvino of Wayne State University discussed ways governments can protect the competing interests and the opposing camps can open dialogue with each other. Neither side should be denied rights in the public square.
Prof. Wilson, co-author and co-editor of Religious Freedom, LGBT Rights, and the Prospects for Common Ground (Cambridge Univ. Press, 2018), stated both anti-discrimination and religious liberty statutes inadvertently “teed up” the culture wars. States and communities passed laws to end discrimination against LGBT persons in employment, housing, and public accommodations, outcomes most in society want. Unless those laws exempted specific religious practices, however, they were sometimes used to punish persons of faith and religious organizations due to their beliefs.
Similarly, Congress and many states passed religious freedom restoration acts (RFRA’s) to prevent governments from imposing unnecessary burdens on religious people. Wilson said some persons of faith believed they needed to be protected from gay rights, and RFRA’s went from a tool to protect religious liberty to one opposing LGBT civil rights. Wilson contended that a new script is needed in order to coexist peacefully. “There is something non-negotiable at the core of both LGBT persons and persons of faith that they cannot toss on the floor like a pair of jeans and say they will be a different person when they go out and put them back on when they get back.”
Prof. Wilson argued one possible method is enacting broad non-discrimination laws that include specific religious exemptions. The laws should prohibit discrimination against any person in employment, housing, and public accommodation, and also include specific exemptions for religions and persons of faith in their religious beliefs and practices. Utah did just that in 2015. One of the most conservative and religious states in the nation, it nonetheless adopted non-discrimination laws that provided more protection than New York. At the same time, it protected religions and people of faith against punishment for specific religious practices and beliefs. Wilson said Utah showed there did not have to be conflict between LGBT persons and persons of faith.
Prof. Corvino, co-author of Debating Religious Liberty and Discrimination (Oxford Univ. Press, 2017), offered points to consider when trying to bridge these differences. First, ratcheting up everything is not helpful. If he calls someone a bigot, he is expressing his contempt for the person and saying that person does not belong at the table—a classical conversation stopper. Stigmas can stick and make it harder to have the conversation. Polarization makes us bad at solving problems.
Second, Prof. Corvino said conscientious objections can nevertheless be discriminatory even though they are sincerely held. Courts, however, do not want to decide the reasonableness of religious belief to check discrimination. Corvino argued a better test might be to determine whether the discrimination is based on the expression or design instead of the person’s status. The Supreme Court in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Com. (2018) 584 U.S. __ [201 L.Ed.2d 35], suggested that possibility: “If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all.”
Prof. Corvino stated user-based discrimination “is not just a matter of dignity harm or having feelings hurt. It is being put on the outside.” It is telling people that because they are different, they cannot buy in a store what other people can buy. He argued design-based discrimination might be a productive way to protect religious belief while also reducing discrimination.
For those asking what to do next, Prof. Corvino encouraged people to build relationships first. Start by getting to know each other and build that space in which people can safely feel a little vulnerable and have back-and-forth dialogue. And then “keep it real.” Actual dialogue is not repeating talking points. It requires putting ourselves in others’ shoes and being honest with ourselves about what we are really trying to do. Corvino said we must listen to understand.
John Jackson, President of William Jessup University, a private Christian school, moderated the discussion. He stated access to the public square should allow not only for dialogue, but also for differences. It may not always lead to unity; indeed, it may expose sharp disagreements, but we cannot fail to see the practical utility in our society to have civil discourse and debate.
Other conference panels addressed legal issues clergy face with their congregants. One panel explained the child welfare system. Hon. Laurie M. Earl, Sacramento Superior Court, and Hon. Colleen M. Nichols, Placer County Juvenile Court, participated in this discussion. Another panel described the roles of district attorneys and public defenders in the criminal justice system. This panel, moderated by Hon. Troy Nunley, U.S. District Court, included Anne Marie Schubert, Sacramento County District Attorney; Steven M. Garrett, Sacramento County Public Defender; R. Scott Owens, Placer County District Attorney; and Dan Koukol, Placer County Public Defender.
Consistent with tradition, the conference opened with religious invocations and closed with judicial benedictions. Pastor Rick Cole, Capital Christian Center; Sister Hansa, Brahma Kumaris; and Rabbi Seth Castleman, Sacramento Board of Rabbis, offered invocations, and Bishop Jamie Soto, Catholic Diocese of Sacramento, welcomed the participants. Hon. Allison Claire, U.S. District Court, and Hon. Shama H. Mesiwala, Sacramento Superior Court, offered closing thoughts.
The conference was held on October 11, 2018, at St. Clare Catholic Church in Roseville. It was hosted by the Sacramento County Superior Court and sponsored by the California Judges Foundation and William Jessup University.