Andrew Koppelman is no stranger to gay rights law. Over the past three decades, he has published two books and dozens of articles, law reviews, and book chapters on sodomy bans, same-sex marriage, and antidiscrimination law. In Gay Rights vs. Religious Liberty, Koppelman wades into far more contentious territory as he attempts to move gay rights advocates and conservative businessowners wielding the First Amendment to deny services beyond their present impasse. The problem with this conflict, Koppelman contends, is that both sides have asked courts to adopt an absolutist stance when they could be making pragmatic—potentially even mutually beneficial—legislative compromises. In his view, “principles are a distraction” that render either side’s demands “more uncompromisable than they are” (p. 2).
Koppelman claims that, in treating any refusal of service to LGBTQ+ customers as motivated by unconstitutional animus, liberals have abandoned their philosophical and historical commitment to the rights of religious minorities. In an opening tour through political philosophy and constitutional law, Koppelman traverses the insights of Milton, Mill, and Locke and travels through free exercise jurisprudence since the nineteenth century. Along the way, he points to moments when defenders of downtrodden religious minorities carved out exemptions. He juxtaposes these cases to times when the Supreme Court adjudicated cases based on rigid abstract principles, ultimately abrogating the right to free exercise. Koppelman argues that earlier generations of liberals would not recognize the current progressive distaste for accommodationist laws like Religious Freedom Restoration Acts (RFRAs), the original of which was a bipartisan effort championed by the ACLU and signed into law by President Bill Clinton. As a result of the new liberal absolutism, cases like Masterpiece Cakeshop and similar state-level fights have fomented political outrage and led to deadlock. Although the book occasionally gestures to instances where conservative free exercise absolutists have similarly overstepped—he notes the 2014 Hobby Lobby case as an example—Koppelman’s advice is offered mainly to an audience of fellow liberals.
In his plea for a renewed bipartisan balancing act, Koppelman demonstrates how modestly construed state RFRAs and the exemption-friendly judicial approach function to moderate free exercise claims while still protecting those with minoritarian beliefs and practices (pp.17–19). Rather than making every citizen “a law unto himself,” accommodation allows legislatures to demarcate where limited exemptions might be made and then allows the judiciary to decide those claims on a case-by-case basis.
Indeed, some existing RFRAs go too far for Koppelman. He describes a 2016 law in Mississippi, which provided a near-blanket right to discriminate. After documenting the flaws of these and related reforms, Koppelman offers his own blueprint (though, notably, his is tailored specifically to wedding vendors). His model would require “prior notice” signage to be displayed by businesses that would withhold services from same-sex couples. This compromise, Koppelman argues, would not mandate exemptions in total but would instead allow for them only in contexts where they would not perpetuate systemic injury (i.e., where other vendors are widely available). It too would guard against the incidental injury and dignitary harm suffered by those who would otherwise be refused service in a face-to-face encounter (p. 59). Because such legislative compromises would likely be made in jurisdictions that currently lack any antidiscrimination measures for queer people, Koppelman asserts that his reforms would result in more protections than exist now.
If the solution is so simple, why is it so anathema to gay rights advocates? In Koppelman’s view, liberal advocates’ absolutism emanates largely from an inappropriately applied analogy to race, one that misunderstands both the moral and market logic of antidiscrimination law. He posits that the harms of heterosexist ideas and institutions are—though odious—fundamentally dissimilar from those of the Jim Crow regimes. For example, rather than defend their right to selectively cater to consumers, US businesses have been at the vanguard of the recent opposition to state legislation deemed discriminatory (here, Koppelman does, however, elide instances of racial civil rights advocacy among mid-twentieth-century businesses). He notes too that conservative business owners do not inflict nearly as much harm as do parents who kick their queer children to the curb. Though one might take issue with Koppelman’s market approach to antidiscrimination law—he argues that such laws are “a limited intervention into markets” meant to “facilitate cooperation among diverse groups” when markets fail—it is a logic that featured prominently in major civil rights cases, which assisted in dealing Jim Crow a death blow (p. 63).
Koppelman is at his least convincing when he portrays the conflict as not only “unnecessary” but also as an existential threat to liberal-left politics. With scant empirical evidence, he makes the massive claim that religious resentment won Donald Trump the presidency (p. 32). This 10-page chapter, however, fails to go beyond a handful of descriptive statistics to make this sweeping interpretation. It also neglects works like Katherine Cramer’s The Politics of Resentment (2016), which highlight the economic and racial dimensions of the Trump vote. This oversight is striking given that Koppelman observes that the economy and immigration ranked higher than religious liberty for Trump voters’ own rationale for their support (p. 35). Koppelman is much more compelling when documenting the political externalities and human costs that attend the failure to compromise. He recounts how Catholic Charities of Boston voluntarily shuttered its adoption program after failing to receive an exemption to assist only heterosexual married couples, thereby ending the largest adoption service in the state (p. 30). Even here, however, Koppelman’s account stays at the surface, overlooking a vast literature on charitable choice and neoliberal reforms to social welfare services that have expanded and exacerbated these conflicts by leasing out state functions to religious entities.
The book also fails to interrogate the well-funded organizations that have represented discriminatory vendors. In depicting a war waged by liberals with the upper hand against “religious traditionalists [who] just want to be left alone” (p. 8), Koppelman evades discussing the seemingly relevant fact that Masterpiece Cakeshop was litigated by the Alliance Defending Freedom, which operates with an annual budget of $50 million and works domestically against trans bathroom access rights and internationally to oppose reforms to sodomy laws and civil unions (Daniel Bennett, Defending Faith: The Politics of the Christian Conservative Legal Movement, 2017). This too is where Koppelman’s “right to be weird” argument falls flat as a defense for the religious minority merchant class. It collapses larger political interests and institutions into a simpler story about an individual’s right to be out of step with the mainstream. His concern with conscience is surely not irrelevant, but a pragmatic-over-principle approach ought to wrestle with these broader dynamics of interest and power.
Given that these disputes are far from settled law, Gay Rights vs. Religious Liberty is a necessary book. It is, however, an incomplete book, one that spends too much time telling gay rights advocates what they must give up without fully reckoning with the forces arrayed against them. Koppelman may indeed be correct that compromise is the only way around the impasse, but his account here is unlikely to persuade either side to lay down their arms just yet.
