• 03 February 2010

Rights Clash: How Conflicts Between Gay Rights and Religious Freedoms Challenge the Legal System

Laura K. Klein

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That some religious beliefs clash with the gay rights movement is undeniable. When these interests conflict in the form of litigation and both sides adopt the rhetoric of rights, the resulting rights clash challenges the United States legal system’s ability to come to a principled result. While the public views rights rhetoric as outcome determinative, making it an appealing litigation strategy, the use of rights rhetoric by both sides of a debate makes the outcome uniquely indeterminate. I argue for a change in our perspective on how legal institutions can properly handle such rights clashes.

This posting—and the Note from which it is derived—focuses on litigation by the Christian Legal Society (CLS), in which the CLS adopts rights rhetoric. In the cases I examine, CLS seeks exemptions for its student groups from the nondiscrimination policies of various public universities. The litigation arises from the fact that CLS chapters prohibit any student who engages in homosexual conduct or believes that homosexual conduct is not sinful from being an officer or voting member. As a result of this policy, CLS chapters have come into conflict with school administrations that forbid their student groups from discriminating on the basis of sexual orientation and which argue that CLS violates those nondiscrimination policies.

CLS argues that if its membership selection process violates universities’ nondiscrimination policies, it has a constitutional right to an exemption from such policies to the extent that they require nondiscrimination based on sexual orientation. Of the four cases considered in this posting, two of them—the suits against Arizona State University and The Ohio State University—settled before a court decision was rendered. CLS litigated a third case in the Seventh Circuit, successfully obtaining a preliminary injunction against Southern Illinois University School of Law (SIU Law). The parties subsequently settled, with SIU Law acquiescing to CLS’s membership and officer requirements. The fourth case, in which CLS sued Hastings College of the Law, went to the Ninth Circuit, where CLS ultimately was unsuccessful. The United States Supreme Court granted cert in this fourth case, Christian Legal Society v. Martinez, on December 7, 2009.

Because it adopts rights rhetoric in its litigation strategy, rhetoric commonly adopted by the gay rights movement, CLS creates a clash between its religious rights and homosexual students’ rights—a rights clash that inevitably leads to a zero-sum game. The legal system is hard-pressed to resolve the religion-homosexuality rights clash given this zero-sum game.

Despite these pitfalls, it remains important for rights clashes to be resolved institutionally, but this requires a change in our perspective on how legal institutions can properly handle such rights clashes. Instead of expecting an ideal solution to a rights clash in each act of a legal institution—such as a judicial decision or a legislative enactment—we should view each act as an imperfect moment in a political-judicial dialogue winding its way toward a principled resolution. I evaluate this perspective by examining two case studies of institutional dialogue in attempts to resolve the religion-homosexuality rights clash.  Although this perspective does not address all of the complications that rights clashes introduce, it does help temper expectations of what can be achieved from our current legal system while still maintaining hope for a proper result in the long term.

The Use of Rights Rhetoric in the Christian Legal Society’s Litigation Strategy

Rights arguments, which involve universalizing the interests of an identity group, seem binding and dispositive in American legal disputes because arguments that “appeal to shared and uncontested understandings of the Constitution” and that are framed in “the language of a common tradition” are most effective in constitutional cases.1

In arguing for exemptions from universities’ nondiscrimination policies, CLS adopts the rhetoric of rights, which encompasses related arguments based in identity and discrimination. It characterizes the lawsuits as civil rights cases and has argued that the belief that homosexuality is a sin is so integral to CLS’s identity that the ability to exclude active homosexuals and those who believe homosexuality is not a sin is key to its very existence. CLS argues that the universities discriminate against it as an identity group.

Of course, rights rhetoric commonly has formed the basis of the litigation strategy of the gay rights movement, CLS’s indirect adversary in this litigation. Indeed, in their briefs defending the application of the universities’ nondiscrimination policies to CLS, groups like Hastings Outlaw and the American Civil Liberties Union invoke similar discrimination and identity rhetoric. As a result, the language of rights is on both sides of this litigation.

Rights Clash and the Zero-Sum Game

When rights clash—that is, when both sides of a dispute adopt rights rhetoric—reasonable people may disagree over how that clash should be resolved. There is significant disagreement among scholars regarding the proper outcome to the religion-homosexuality rights clash. The inevitable win-loss experienced by the two sides of the clash can be understood as a zero-sum game: the beliefs of the two sides are at such odds that their interests in the outcome are irreconcilable. The question comes down to whether gay rights should receive the full protection of nondiscrimination policies or whether religion should be singled out and granted exemptions—the two extremes of the zero-sum game.

Some scholars argue that religion should not receive special treatment; rather, gay rights, like other civil rights, outweigh religious objections. One iteration of this argument is that a “baseline of nondiscrimination” is necessary to “[e]nsur[e] that LGBT people can live honestly and safely in all aspects of their social lives” and “that members of the public who have a morally neutral characteristic are able to live without fear or vulnerability of discrimination based on that characteristic.”2 Beyond this normative argument, another contention is that the government should not treat gay rights differently from civil rights based on race. Civil rights based on race generally prevail over religious rights, while the relationship between religious rights and rights based on sexual orientation (and gender) is less settled.

Other scholars argue that the weighing of the interests comes out on the other side: given the existence of a rights clash, there is good reason to favor religion and grant it exemptions from laws of general applicability. Professor Andrew Koppelman has argued that if the law must pick sides, religion is a fair and proper side to choose because it is a “distinctive human good.”3 Another argument is that giving religion special constitutional treatment is in keeping with the goals of the First Amendment: the Religion Clauses are intended to minimize government’s disturbance of private observance of religion, and religious exemptions from generally applicable laws are acceptable special treatment of religion because they help to advance this constitutional goal.4

Implications: The (In)Ability of the Legal System To Resolve the CLS Rights Clash In a Principled Way

Given that reasonable people may disagree over how a rights clash should be resolved, does that mean that when both parties to a dispute invoke rights language, the outcome becomes indeterminate—contrary to the commonly-held belief that rights rhetoric is determinate? Can rights clashes be resolved in a principled way in the courts or legislatures? Must we look to extra-institutional approaches for a principled result? Here, I evaluate these options.

A.     The Courts: Unpredictable Umpires or Redeemable Referees?

Critical Legal Studies scholars have argued that rights rhetoric leads to indeterminacy in the courts. By “indeterminacy” these scholars mean lacking a single, objective, predictable answer to a legal problem. In other words, rights arguments, like policy and normative arguments, are susceptible to strategy and value judgments.

They contend that indeterminacy is especially salient when there is a rights clash because it inevitably leads to balancing of the conflicting interests. And once a court begins balancing competing claims of rights, “it is implausible that it is the rights themselves, rather than the ‘subjective’ or ‘political’ commitments of the judges, that are deciding the outcome.”5

Thus to the extent that we value courts’ ability to resolve the religion-homosexuality rights clash in a principled and unbiased way—a desire that is uniquely felt when the two parties going head-to-head are both minority groups—the question remains whether there is a better option for resolving the CLS disputes.

B.     The Legislatures: Enlightened Statesmen?

Some scholars contend that legislatures are the better branch in which to resolve problems like the religion-homosexuality rights clash. Central to this argument is the notion that “politics is the arena of compromise,” a characteristic that would theoretically solve the problem of having to pick a winner in the zero-sum game.6

The problem that remains is that the zero-sum game is inevitable where the government is involved. Changing political views on the subject would lead to the greatest indeterminacy of all. The Founders, of course, were particularly concerned by the strength of representative legislatures and their potential for tyrannical majorities. Thus, there is reason to doubt whether legislatures alone can resolve rights clashes in a principled way.

C.     Extra-Institutional Approaches

1.   Private Dispute Resolution: Room for Compromise or Compromised Results?

Recognizing some of the problems of judicial and legislative resolutions of rights clashes, some scholars have suggested that the best way to avoid the zero-sum game is to resolve disputes privately. Because the experience may be less polarizing, the parties have a greater chance of encouraging normative growth and coming to an understanding of their competing interests.

Private negotiations and settlements may, theoretically, avoid the zero-sum game. However, this solution is not a cure-all because it leaves systemic problems with legal institutions in place. Settlements are inextricably linked to litigation because threats of litigation must be sincere in order to motivate settlement negotiations; thus, there is a potential that any given rights clash will go to court. But because settlements do not make law that is binding on courts or parties other than those parties privy to them, they do not help advance principled results in legal institutions for future litigation (or for legislative decisionmaking). Thus settlements are not as effective as legislation and judicial decisions in promoting progress in constitutional understanding—as evidenced by the coexistence of a circuit split with two settled cases in the CLS litigation.

A related problem with negotiation was previously mentioned in the context of legislation and bears repeating: even when the government does not “get involved” in a rights clash, it is taking a side. Governmental inaction simply creates a default position.

2.   Ballot Initiatives: Trust the Result to the Will of the People?

Ballot initiatives are particularly problematic for resolving rights clashes. Perhaps of most concern, ballot initiatives lack the greatest advantage of private dispute resolution: compromise. And even as they depart in this respect from the legislative process, which does offer some level of compromise, ballot initiatives share a flaw with representative lawmaking: tyranny of the majority. When both parties in rights clashes claim to be minority groups, this drawback causes one to wonder if there is not a better solution.

A Different Perspective: Case Studies in Political-Judicial Dialogue

The flawed nature of each judicial decision and each piece of legislation that attempts to resolve this rights clash necessitates a new perspective on what one can expect from such decisions and legislative enactments. One can view each flawed case and piece of legislation as a part of an ongoing political-judicial dialogue that is working toward a principled and acceptable resolution. Through institutional interaction, the law evolves to take into account the rights of religious groups as well as homosexual citizens.

In Canada and Vermont, the debates over gay marriage were framed by religion-homosexuality rights clashes. Religious scholars and groups opposed the legalization of same-sex marriage, fearing that it impinged on their religious rights. The legal systems in both jurisdictions have engaged in institutional dialogues to resolve this clash.

In Canada, the institutional dialogue was set off by a Supreme Court case that invalidated a law limiting spousal support rights to heterosexual relationships. A firestorm of legislative response followed, in which federal and provincial legislatures revised laws to extend protections enjoyed by opposite-sex couples to same-sex couples. Several years later, two Canadian appeals courts held that same-sex couples were entitled to marry. The Canadian government decided not to appeal either case, but rather to draft legislation that would recognize their holdings—a prime example of political-judicial dialogue. In an advisory opinion requested by Parliament, the Supreme Court of Canada held that this legalization of same-sex marriage was permissible and that under the Canadian Charter of Rights and Freedoms religious groups would be protected from performing marriages that violated their religious beliefs.

Vermont, like Canada, has adopted a same-sex marriage law that explicitly recognizes the rights of religious groups, and the road to its enactment was paved by institutional dialogue. In Baker v. Vermont, the Supreme Court of Vermont held that same-sex couples had a constitutional right to “the same benefits and protections afforded by Vermont law to married opposite-sex couples.”7 The Baker court set up a political-judicial dialogue by declining to determine how that right should be recognized. Vermont’s legislature responded with “civil union” legislation. This legislation was met with varying responses at the polls. In 2009, the legislature enacted, over the governor’s veto, legislation that recognizes gay couples’ right to marry and protects religious organizations from being “required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if the request . . . is related to the solemnization of a marriage or celebration of a marriage.”8

Whether the Canadian and Vermont dialogues have achieved an ideal resolution of the religion-homosexuality rights clash, however, is unclear. The debates continue, with some arguing that the religious exemptions are insufficient. Though the dialogues may be ongoing, they have provided the compromise of private dispute resolution while advancing—rather than ignoring—legislatures’ and courts’ resolutions of the religion-homosexuality rights clash.


Although institutional dialogue certainly has its own pitfalls, it might be the best means by which Americans can expect a proper resolution to rights clashes for several reasons. It allows for compromise, the benefit of private dispute resolution. Yet it avoids the problem of private resolution, which is that the results rely on legal institutions without resolving their challenges. That problem is eliminated because political-judicial dialogue is rooted in legal institutions; it checks and balances their individual weaknesses. Thus it preserves the possibility of a principled result, at least in the long-term.dingbat



Copyright © 2010 Georgetown Law Journal.

Laura K. Klein is a 2010 J.D. Candidate at Georgetown University Law School.

This Legal Workshop Editorial is based on the following Student Note: Laura K. Klein, Rights Clash: How Conflicts Between Gay Rights and Religious Freedoms Challenge the Legal System, 98 GEO. L.J. (forthcoming 2010).

  1. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CAL. L. REV. 1323, 1356–57 (2006).
  2. Chai R. Feldblum, Moral Conflict and Liberty: Gay Rights and Religion, 72 BROOK. L. REV. 61, 119, 120 (2006).
  3. Andrew Koppelman, Is It Fair To Give Religion Special Treatment?, 2006 U. ILL. L. REV. 571, 574.
  4. Michael W. McConnell, The Problem of Singling Out Religion, 50 DEPAUL L. REV. 1, 3, 11–12, 20 (2000).
  5. Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in LEFT LEGALISM/LEFT CRITIQUE 178, 198 (Wendy Brown & Janet Halley eds., 2002).
  7. 744 A.2d 864, 886 (Vt. 1999).
  8. An Act To Protect Religious Freedom and Recognize Equality in Civil Marriage, S. 115, 2009–2010 Leg. (Vt. 2009) (enacted).

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