Bench Memos

Law & the Courts

Corvino vs. Anderson and Girgis on Debating Religious Liberty and Discrimination

With Masterpiece Cakeshop v. Colorado Civil Rights Commission at center stage in the Supreme Court’s new term, I’ve been meaning to highlight Debating Religious Liberty and Discrimination, the outstanding new book written in point-counterpoint fashion by John Corvino, on one side, and Ryan T. Anderson and Sherif Girgis, on the other.

My task has been made much easier by this excellent review by University of St. Thomas law school dean Robert K. Vischer, from which I draw these passages:

Every month brings new culture-war flash points as florists, bakers, and even some public officials invoke a right of conscience not to support or participate in a same-sex wedding. These refusals, in turn, have triggered a redoubled commitment to the primacy of nondiscrimination laws among those committed to LGBT rights.…

Enter three philosophers and unlikely coauthors: John Corvino, a longtime same-sex-marriage advocate, and Ryan Anderson and Sherif Girgis, two outspoken opponents of same-sex marriage. Their new book, Debating Religious Liberty and Discrimination, is a direct challenge to our cultural moment, opting for careful analysis over clickbait, mutual understanding over demonization, and clearly demarcated disagreement over sweeping dismissal. The authors take the time to lay out their best arguments, then respond to the best arguments of their opponents. Whether or not the book ultimately causes readers to change their views is not the measure of its success. The authors provide a desperately needed model for engagement: they argue with, not at their opponent; they argue together….

[D]iscourse is strengthened when we recognize the limitations of our own positions. We have become accustomed to a cable-news culture in which guests battle for every inch and concessions are taken as a sign of weakness. Corvino, Anderson, and Girgis are upfront about where their arguments do not and should not lead. Corvino does not reject religious exemptions categorically; he concedes, for example, that providers of a service should not be legally compelled to provide custom services that violate the dictates of their consciences; it is only when they refuse to sell the very same item to other customers on the basis of the customers’ sexual orientation (or race, religion, etc.) that the law should intervene. For their part, Anderson and Girgis admit that “coercive policies would be needed…if discrimination were rife, so that LGBT people were locked out of the market or out of the public square or into second-class status.” …

In the end, two questions emerging from the analysis strike me as the most salient and, in my view, would serve as prudent starting points for future debates over religious liberty and nondiscrimination. They do not lend themselves to easy answers, but they clarify the scope of disagreement. The first question is: What value should our legal order place on a person’s ability to live with integrity?… The second question is this: Does the prevention of dignitary harms warrant imposing the law’s coercive power on those whose exercise of conscience threatens such harm?

Anyone interested in this topic (which ought to be everyone) should get this book and read both sides’ arguments—especially the other side’s arguments—with care.

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