David A. Strauss is a professor at the University of Chicago Law School.
Both sides seem to want to strike a pose of wounded innocence in the dispute about laws passed by Indiana and Arkansas to exempt religious believers from legal requirements that conflict with their beliefs. Supporters of the laws insist that they have nothing to do with same-sex marriage or the rights of gay people. The laws, we’re supposed to believe, are simply about religious freedom, which everyone likes, or big government, which no one does.
But the opponents of those laws, while not as disingenuous, are faking it, too. They are scrambling to find differences between what Indiana and Arkansas have passed and the similar federal and state laws that have been on the books for years. That way the opponents can avoid saying what they actually believe: When it comes to same-sex marriage, the law should sometimes forbid people from acting even on their sincere religious beliefs.
That’s what this controversy is really about. It’s not a misunderstanding that can be “clarified” by some technical amendment, as Indiana attempted to do. It is a big and illuminating moment in history — a conflict between the demands of religion and the demands of society. Such conflicts can sometimes be a terrible thing, but they can also be a source of great moral progress.
In this kind of conflict, religion is not always the bad guy, but it is also not always the good guy, and it does not always lose or always win. Religion and society mold each other. Sometimes religion forces itself on society and on the state in ways that we should all be thankful for. Religious groups played a crucial role in the abolition of slavery, and they were hugely important in the struggle for civil rights in the mid-20th century. Religious groups have often been the most important advocates of doing more for the poor and for society’s outcasts. In all those ways and many others, religious groups have made a recalcitrant society conform to a vision rooted in religious belief, and we are immeasurably better off for it.
On the other hand, for centuries, freedom to act on one’s conscientious religious beliefs would have meant, for many, the freedom to kill heretics and infidels. Pressure from the state and society forced religious adherents to behave better, and over time — this is the important part — the religions themselves changed their doctrines and belief systems to conform to society’s demands. Religions that not so long ago preached intolerance now condemn persecution and embrace the diversity of religious belief. More recently, we have seen religious believers abandon white supremacy as a creed and, more recently still (and, in many cases, not completely), accept that women should have the same freedom as men to choose their own destiny. The religious doctrines changed for many reasons, but change they did, and that was partly because the larger society insisted that discriminatory behavior change. The change in belief followed.
The defenders of laws such as Indiana’s don’t like to talk about this. They act as if no one’s conscientious religious beliefs ever dictated discrimination. The defenders of these laws don’t want to acknowledge — what is surely true — that even today there are employers who do not want to hire women because their sincere religious belief is that women should keep the home and raise the children. The government does not allow those people to act on their religious beliefs. There is a sense in which that kind of coercion is tragic, but it is also progress. You can, legalistically, insist that the government’s interest in preventing race and sex discrimination is, in the language of those laws, a “compelling” interest that overcomes the religious obligation, but when did it become so compelling? Beliefs such as those, about women, would have seemed thoroughly mainstream just a few decades ago. They are not mainstream anymore, because they changed under pressure from society and the law.
That is what we are seeing now: one of those moments in history when pressure from the larger society pushes against religious belief and insists that believers, at least when doing business with the public, not act even on sincere objections to same-sex marriage. Already we have seen those religious objections diminish as religions accommodate themselves to the principle that gay people should not be discriminated against. But the process is incomplete. Of course there is room for debate about the pace of change, and there is always an imperative to act respectfully toward those with whom one disagrees. But this is a difficult, challenging conflict, the birth pangs of a new wave of equality. We should not expect it to be easy, and we should recognize it for the momentous event that it is.