Lately, there has been a disturbing turn toward ill will and demonization when discussing tensions between religion and law in the United States. Many avidly watch who will “win” and who will “lose” in high-stakes conflicts over the place of religious views and practices in health care, marriage, commercial contracts, and public life. But the biggest losers are the entire nation if we descend into intolerance. We would abandon the remarkable American promise to welcome people of all religions and give up our model for the world on how to be both religiously vibrant and mutually respectful. Today’s struggles on behalf of gays, lesbians, bisexuals, and transgender people mirror protracted struggles by Catholic, Mormon, Jewish, Muslim, and other religious groups to secure freedom and tolerance in schools, workplaces, and daily life, including marriage. All these issues are deeply felt, constitutive of identity, and difficult to change.
Until recently, there was a broad consensus that religious and other serious conscientious dissenters from legal and cultural norms should be accommodated when practical to do so. George Washington wrote of Quakers who refused to serve in the Revolutionary Army: “It is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.” Recently, we have begun to see partisans of various causes treat accommodation as unacceptable in principle and people requesting religious accommodation as outside the realm of conceivable views.
In jeopardy is no less than the admirable American promise of respect for dissent — including vigorous protection for freedom of expression even when that expression can be offensive or troubling; the distinctive American tradition seeking accommodation for free exercise of religion; and the recognition that a free society benefits from disagreement. These traditions have contributed to robust debate and remarkable diversity of religious and political views. The key to this American promise — its secret sauce — is our ability to agree to disagree, even about matters of profound importance, both by accepting legal resolutions of intense disagreements and by preserving avenues for ongoing dissent. By accommodating dissent, it often will be easier to bring about support for social change if dissenters know they will continue to able to live their own lives in accordance with older norms.
Whatever the Supreme Court decides this term in the same-sex marriage case of Obergefell v. Hodges, new difficulties will arise. Especially challenging will be to find the line between assured protection for one’s own religious freedom and equality on the one hand and interference with the religious freedom and equality of others. There are in fact many potential lines: what is punished or penalized, what is subsidized by tax exemptions, and what latitude is permitted to individuals or religious institutions but perhaps not to other institutions. In the oral argument before the Court in Obergefell, Solicitor General Verrilli told the justices “it certainly would be a question” whether religious institutions like colleges or universities would retain tax exempt status if they “oppose same-sex marriage.” Tough questions lie ahead.
As we address them as Americans, we need a minimum level of civility for our process to work. People who disagree over particular issues should be able to agree that we need more, not less, mutual respect and more, not less, consideration of accommodations for those on the losing side of debate.
We hope that better natures will prevail. Issues about marriage and procreation, life, death, and family are intensely personal for millions of Americans. We must not deprive dissenters of basic civil privileges or brand dissenters as pariahs.
Otherwise, we all lose.
Martha Minow is dean of Harvard Law School. Michael McConnell is director of the Stanford Constitutional Law Center.