Magazine | August 14, 2017, Issue

Preserving Pluralism

Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis (Oxford, 352 pp., $21.95)

In the eyes of many, the debate about the legalization of same-sex marriage is long over. Regardless of people’s individual opinions about marriage — which still remain fairly significantly divided — most Americans believe the question of legalization was effectively settled in the summer of 2015, when Supreme Court justice Anthony Kennedy joined with the four liberal members of the Court to redefine marriage for the entire country as an emotional union undertaken by any two consenting adults, regardless of sex.

Though he hasn’t abandoned the idea that the federal government has an interest in defining marriage as a permanent and exclusive union of one man and one woman, public intellectual Ryan T. Anderson, the William E. Simon senior research fellow at the Heritage Foundation, has turned his attention toward a perhaps more pressing concern: How can we defend the conscience rights and religious free exercise of Americans who hold this now-out-of-fashion view of marriage while respecting the fact that same-sex marriage is the law of the land?

In the immediate aftermath of the Obergefell v. Hodges decision, Anderson wrote Truth Overruled: The Future of Marriage and Religious Freedom, a tome dedicated to exploring the road forward on marriage and civil-rights policy, for religious believers in particular. The book set forth a detailed policy agenda, one that Anderson believes would allow faithful Americans to continue practicing their faith in the public sphere despite the sudden shift in the federal position on what constitutes a legal marriage.

His latest book continues in that vein, but it offers an even more robust assessment of the issues at stake in this debate, as public conversation shifts from the definition of marriage to the way society ought to resolve the conflicts arising naturally from Americans’ opposing viewpoints. Anderson has teamed up with two fellow scholars to consider these questions at length in Debating Religious Liberty and Discrimination, a point-counterpoint that delves into the multilayered conflict between the civil rights and human dignity of lesbian, gay, bisexual, and transgender individuals and the religious-freedom rights of Americans who believe that marriage is, by its very nature, a union of one man and one woman.

Anderson has worked with one of his co-authors before; he and Sherif Girgis wrote the 2012 book What Is Marriage? Man and Woman: A Defense along with renowned natural-law scholar Robert P. George, their former professor at Princeton. Joining Anderson and Girgis in authoring this new title is Wayne State philosophy professor John Corvino, who in 2012 co-wrote, with Maggie Gallagher, another point-counterpoint book, Debating Same-Sex Marriage. In this latest venture, Anderson and Girgis advocate policies that protect religious Americans from harsh recriminations as the result of their beliefs about marriage; Corvino presents the case for policies that prioritize the rights of LGBT individuals, even when those rights require others to compromise their religious practice or their conscience.

In recent years, these three scholars often faced one another in public debates. “We came to know and respect one another, even as we sharply disagreed,” they note in their introduction. That collegial spirit imbues the rest of the project, and it provides perhaps one of the book’s most compelling answers to the challenging question they pose early on: “How can we all peacefully coexist?”

Though they of course don’t manage to reach complete agreement by the book’s closing pages, they do find more common ground along the way than one might expect, and in the process they demonstrate the realistic possibility of disagreeing on much of this debate’s substance while refusing to dismiss out of hand one’s ideological opponents. They also illustrate that it is possible to disagree on the substance and simultaneously pursue public-policy compromises that recognize the dignity and rights of LGBT people and the good-faith intentions of Americans who believe in the traditional definition of marriage.

But the book’s most valuable service might be that it collects in one digestible volume some of the strongest arguments on both sides of the debate. As the authors put it, their goal is “to develop and test against each other two approaches to cultural clashes post-Obergefell,” and by that metric the book surely succeeds. Its format allows them to assess directly and respond thoroughly to each side’s best assertions, which is much more difficult to achieve in a truncated spoken debate.

The book’s introduction provides some helpful context for how we arrived at this debate, noting both the long history of religious conflict in colonial America and the respect for religious freedom and conscience that characterized the early United States. The authors also examine several Supreme Court cases that, over the last century, have defined the jurisprudential contours of the First Amendment’s religion clauses, providing insight into this latest conflict between religious liberty and civil rights.

Corvino delivers the book’s “first word,” a lengthy chapter summarizing his case for prioritizing LGBT rights, even when doing so requires religious Americans to compromise their beliefs. Much of his argument is predicated on the notion that religion ought to be treated in the same way that the law might treat any other request for an exemption; as he puts it, “religious liberty, not religious privilege.” In both this section and his subsequent reply to Anderson and Girgis, Corvino provides thought-provoking analysis of the legal reasoning behind this debate, in particular contributing a number of intriguing hypothetical situations that seem to cast doubt on the justice or political practicality of offering religious accommodations.

Lacking in Corvino’s case, however, is a robust understanding of why religious expression has been protected as our preeminent freedom since the Founding. His co-authors correctly critique his argument for its somewhat impoverished view of religion’s intrinsic ability to enable human flourishing, and in places he trivializes or even dismisses that value — often by pointing out or even inventing particularly strange religious practices that, in some cases, would contravene the common good. While those hypotheticals can be helpful in stimulating further thought, Corvino never quite demonstrates that he comprehends the underlying argument of his co-authors: that the right to free exercise of religion is sacrosanct for reasons other than arbitrary privilege. If he were to acknowledge religion’s unique role in American public life — in particular, the importance of religious expression outside one’s place of worship — Corvino’s case would necessarily be more compelling, because it would indicate that he simultaneously sees clearly the distinct value of religion and comes down more strongly in favor of LGBT rights.

Anderson and Girgis, on the other hand, offer a vigorous defense of religious-liberty rights, fully accounting for the dignity of LGBT individuals while still outlining a number of feasible compromises that would allow society to recognize the value of both LGBT individuals and the consciences of religious Americans. Even more crucially, they do this by building up a detailed theoretical structure within which they test a wide variety of cases, an approach that makes it much easier to comprehend and digest the principles that underlie their view. Because of the complexity of these disagreements and the way they play out in public life, a theoretical argument is an essential component of any effort like the one undertaken in this book; Anderson and Girgis have succeeded better than their co-author in establishing such an overarching structure within which to present their arguments.

Perhaps more important, Anderson and Girgis press their principles farther and apply them to a whole host of religious-liberty and discrimination cases that loom on the not-so-distant horizon, cases that they rightly accuse their co-author of dodging. These include issues such as whether therapists should be required to refer individuals for sex-reassignment surgeries or whether doctors should be forced to perform those surgeries, or to perform abortion or sterilization procedures. In many ways, these questions are even more intimate and controversial than today’s disagreements over cakes and bouquets, and they are closer to our mainstream than we might think.

Though the deliberation this book presents is not a perfect replica of the fullest possible discourse on this issue — and its authors acknowledge as much — it is a brilliant start, and it provides something of value for thoughtful readers of nearly any mindset. Regardless of what one thinks about the marriage question, the U.S. remains a large country with citizens of many religions, diametrically opposed opinions, and lifestyles that will inevitably clash. Given that conflict is unavoidable, the authors agree that we ought to foster a culture in which we can seek common ground and conduct debate on the plane of ideas and policy, rather than descend into endless painful lawsuits or bitter social-media feuds with our ideological opponents.

Corvino, Anderson, and Girgis illustrate in this compelling book that such a judicious debate can take place and can generate fruitful conversation, as well as delineate areas of authentic agreement and practical compromise. And, perhaps even better than that, they give us the tools we can use to find those agreements and compromises ourselves.

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