Religious Freedom, LGBT Rights, and the Prospects for Common Ground

The rights of lesbian, gay, bisexual, and transgender persons (LGBT) are strongly contested by certain faith communities, and this confrontation has become increasingly pronounced following the adjudication of a number of legal cases. As the strident arguments of both sides enter a heated political arena, it brings forward the deeply contested question of whether there is any possibility of both communities' contested positions being reconciled under the same law. This volume assembles impactful voices from the faith, LGBT advocacy, legal, and academic communities - from the Human Rights Campaign and ACLU to the National Association of Evangelicals and Catholic and LDS churches. The contributors offer a 360-degree view of culture-war conflicts around faith and sexuality - from Obergefell to Masterpiece Cakeshop - and explore whether communities with such profound differences in belief are able to reach mutually acceptable solutions in order to both live with integrity.

1. Prospects for common ground: introduction William N. Eskridge, Jr and Robin Fretwell Wilson; Part I. The Search for Common Ground: Framing the Dialogue: 2. Choosing among non-negotiated surrender, negotiated protection of liberty and equality, or learning and earning empathy Alan Brownstein; 3. Liberty and justice for all Douglas Laycock; 4. Belief and belonging: reconciling legal protections for religious liberty and LGBT youth Shannon Price Minter; 5. Religious freedom, civil rights, and sexuality: a Christian ethics perspective Dennis P. Hollinger; Part II. Guiding Principles for Mediating Conflicts: 6. Religious accommodation, and its limits, in a pluralist society Douglas NeJaime and Reva B. Siegel; 7. 'The Devil is in the details': on the central importance of distinguishing the truly public from the truly private in reconciling equality and religious liberty Ronald J. Krotoszynski, Jr; 8. Mutual tolerance and sensible exemptions Kent Greenawalt; 9. The joys of mutual contempt Andrew Koppelman; 10. From conflict to coexistence: the catholic response to the LGBT community Jeanine Gramick; 11. Implied-consent religious institutionalism: applications and limits Michael A. Helfand; Part III. The Demands of Faith: Perspectives from Select Faith Traditions: 12. Christian identity and religious liberty Leith Anderson; 13. The 'demands' of faith William E. Lori; 14. Toward collaboration: a perspective from the church of Jesus Christ of latter-day saints Elder Von G. Keetch; 15. Conscience claims in Islamic law: a case study Intisar A. Rabb; 16. Should an Amish baker sell a cake for a same-sex wedding? A letter on toleration of LGBT rights from anabaptists to evangelicals Jason R. Moyer; Part IV. Testing the Civil Rights Analogy: 17. The rhetoric of bigotry and conscience in battles over 'religious liberty v. LGBT rights' Linda C. McClain; 18. Against 'civil rights' simplism: how not to accommodate competing legal commitments Steven D. Smith; 19. Heterosexuals only: signs of the times? Louise Melling; 20. Conscience v. access and the morality of human rights, with particular reference to same-sex marriage Michael Perry; 21. On the uses of anti-Christian identity politics Marc DeGirolami; Part V. Strings Attached? Government Support of Religion and Religious Institutions: 22. Marriage equality, traditionalist churches, and tax exemptions William N. Eskridge, Jr; 23. Why money matters: LGBT rights and religious freedom K. Hollyn Hollman; 24. Freedom to serve: religious organizational freedom, LGBT rights, and the common good Thomas C. Berg; Part VI. Educational Institutions in the Age of Same-Sex Marriage: 25. Two paths: finding a way forward at covenantal universities Shirley V. Hoogstra, Shapri D. LoMaglio and Brad Cofford; 26. God and man and religious exemptions in the modern university B. Jessie Hill; Part VII. The Challenges of Public Accommodations: 27. Challenges to true fairness for all: how SOGI laws are unlike civil liberties and other nondiscrimination laws and how to craft better policy and get nondiscrimination laws right Ryan T. Anderson; 28. Dressmakers, bakers, and the equality of rights Michael W. McConnell; 29. It's not about the cake: against 'altaring' the public marketplace Jennifer C. Pizer; 30. Bathrooms and bakers: how sharing the public square is the key to a truce in the culture wars Robin Fretwell Wilson; Part VIII. Reflections from Advocates, Legislators, and Policymakers: 31. Sound nondiscrimination models and the need to protect LGBTQ people in federal law Sarah Warbelow; 32. Cultivating common ground: lessons from Utah for living with our differences J. Stuart Adams; 33. Shared spaces and brave gambles Michael O. Leavitt; Part IX: 34. Afterword David N. Saperstein; 35. Appendix of laws; Index.

Can protections for LGBT people and faith communities be reconciled in the law? Impactful voices in the faith, LGBT advocacy, legal, and academic communities offer a 360-degree view of culture-war conflicts. The contributors offer roadmaps for resolving these conflicts and draw outer boundaries of what constitutes acceptable common ground.

William N. Eskridge, Jr, is the John A. Garver Professor of Jurisprudence at Yale Law School, Connecticut. A renowned scholar of statutory interpretation and legislation, in 1990–95, Professor Eskridge represented a gay couple suing for recognition of their same-sex marriage. He has published a field-establishing casebook, three monographs, and dozens of articles articulating a legal and political framework for proper state treatment of sexual and gender minorities. Historical materials in Gaylaw formed the basis for an amicus brief filed by Cato Institute and much of the US Supreme Court's (and the dissenting opinion's) analysis in Lawrence v. Texas (2003), invalidating consensual sodomy laws.
Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law at the University of Illinois College of Law, Chicago. Professor Wilson assisted the Utah legislature as it enacted landmark legislation balancing religious freedom and LGBT non-discrimination protections. She founded and directs the Fairness for All Initiative which provides tangible support to legislators seeking to enact laws protecting both communities. A member of the American Law Institute, she is the author, co-author, or editor of eleven books, including Same-Sex Marriage and Religious Liberty (2008) and The Contested Place of Religion in Family Law (Cambridge, 2018). In 2018, she received the Thomas L. Kane Religious Freedom Award.