More important, perhaps, is this reason to listen to the arguments we are having, even if they often outstrip the legislative reality: the contending voices in this debate, including the many thoughtful church-state scholars who have spoken out on each side, are not really arguing about the effects of these laws. Arguably, they are not even debating their possible effects. The real debate is over the logic of their opponents’ positions.
Here, both sides have a point. Whether you call these laws “Gay Jim Crow” or not, the logic of legislative accommodations for individuals, let alone businesses, that object on religious grounds to the application of antidiscrimination laws does indeed pose a serious threat to our civil-rights laws, which are the foundation of a just, egalitarian modern society. It’s tough to have a regime of civil rights when every such law carries the footnote “unless you really mind.” It’s tougher still when those accommodations are triggered by an assertion of “sincere” religious objections, which courts are rightly reluctant to second-guess.
On the other side, the logic of a regime of robust egalitarianism, vigorously backed by law, leaves little room for conscientious religious objection. It tells individuals who want to engage in public and commercial life but have serious religious objections to the new settlement, “Of course there is room for you. Speak, if you must. But don’t act.” (Sometimes, as the Elane Photography case suggests, that distinction is hard to make.) And it tells them that as long as the law’s commands forbid some conduct without actively discriminating against religion, those commands are absolute. The title of law-and-religion scholar Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom, may be premature. Nonetheless, he is right to worry that “traditional religion and contemporary secular egalitarianism are at some deep level fundamentally incompatible.”