The Devil Is in the Details

“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 serves as Chapter 7 in Religious Freedom, LGBT Rights, and the Prospects for Common Ground (Cambridge University Press), which Professors Bill Eskridge and Robin Fretwell Wilson ably edited. The book is comprised of single-chapter contributions by a wide variety of authors – including legal academics, religious leaders, think-tank fellows, civil rights activists, and current and former public officials. It bears noting that this contribution (like the others) reflects the benefit of constructive and wide-ranging discussions that took place at Yale Law School incident to a symposium on “Faith, Sexuality, and Freedom,” on January 13-14, 2017. The Essay posits that the key to reconciling successfully religious liberty with the dignity interests of LGBT persons requires drawing and enforcing a line that effectively and reliably separates the truly public from the truly private. In order to determine when religious entities have a constitutional right to be self-governing, we must carefully disentangle the public sphere from the private sphere. The state creates and maintains the agora, or public marketplace, and has the power to regulate access to it in order to promote the health, safety, welfare, and morals of the community. Just as the state may legislate to prevent and deter health nuisances, such as fire hazards and unsanitary conditions, it may also legislate to eradicate moral nuisances, such as various forms of invidious, status-based discrimination. This power to eradicate moral nuisances, however, cannot sweep so broadly or deeply as to deny self-constituted communities of faith the ability to hold and practice the tenets of their faith outside the public marketplace. The public/private distinction is not perfect, but it is holds more promise than the most obvious alternative approaches. For example, reconciling sincerely held religious convictions with federal, state, and local nondiscrimination laws cannot turn on a simplistic dichotomy between belief and conduct. This distinction has the potential effect of zeroing out protections for religious beliefs in any circumstance where a religious adherent attempts to share a religious belief with others via conduct. So too, reliance on third party harm presents serious operational difficulties because mere offense can constitute harm to a third party. Depending on how broadly – or narrowly – one defines “third party harm,” this test could be quite robust or rather anemic in securing either religious liberty or equality values. Open-ended proportionality analysis also does not present an optimal way forward because such balancing exercises do not, and probably cannot, constrain judicial discretion effectively. The public/private distinction, carefully implemented, presents the best way forward. To be sure, drawing the line of demarcation between the truly public and the truly private will not be an easy undertaking. Even so, however, it is an essential undertaking if we are to secure both equality and religious liberty in the contemporary United States.