Document Type

Working Paper

Publication Date

2-6-2019

SSRN Discipline

Legal Scholarship Network; PSN Subject Matter eJournals; Conflict Studies eJournals; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Legal Anthropology eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

"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 singlechapter contributions by a wide variety of authors "“ including legal academics religious leaders thinktank 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 wideranging discussions that took place at Yale Law School incident to a symposium on "Faith Sexuality and Freedom" on January 1314 2017brbrThe 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 selfgoverning 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 statusbased discrimination This power to eradicate moral nuisances however cannot sweep so broadly or deeply as to deny selfconstituted communities of faith the ability to hold and practice the tenets of their faith outside the public marketplacebrbrThe publicprivate 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 Openended proportionality analysis also does not present an optimal way forward because such balancing exercises do not and probably cannot constrain judicial discretion effectively The publicprivate 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

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