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A Jurisprudence of “Coming Out”: Religion, Homosexuality, and Collisions in Liberty and Equality in American Public Law, 106 Yale L.J. 2411 (1997)

Abstract

Part I of this Essay will start with the Kulturkampf connection and will argue that religion and sexual orientation have much in common as identity categories, that antireligious prejudice is systemically similar to anti-gay prejudice, and that the religion clauses of the First Amendment as they have been developed in the last generation are a model for the state's treatment of sexuality. The First Amendment's protections of free speech, association, and press are the leading constitutional assurances against Kulturkampf. The religion clauses embody a more particularized vision of nomic diversity along lines of religious belief. The Free Exercise Clause of the First Amendment, as read by the Court, prevents the state from censoring deviant religions and, as provisionally implemented by Congress, prevents the state from unduly discriminating against religious belief. The Establishment Clause prevents the state from enforcing religious orthodoxy. Similar rules against censorship, discrimination, and orthodoxy are being developed, and should be developed, by courts and legislatures to protect sexual orientation minorities as well. Thus, I read the religion clauses as embodying a more general public law insight: The state must allow individual nomic communities to flourish or wither as they may, and the state cannot as a normal matter become the means for the triumph of one community over all others. This is a constitutionalism inspired by the positive value of diversity and by the negative experiences of Kulturkampf, exemplified historically by both gay and religious experience.

Gay and religious groups should join together in opposing state Kulturkampf, but instead they often part company when the state guarantees sexual equality. Part II of this Essay explores issues raised when religious liberty and sexual equality norms collide. With the advent of vigorous antidiscrimination laws that incidentally restrict expression, the collision of nomic communities is today often accompanied by a collision of constitutional commitments, between the liberty of one group to exclude and express its disapproval, and the desire of an excluded group for equal treatment. Cover is right to tell us that in situations of direct clash the state typically cannot remain neutral, but he provides few insights as to how the state ought to resolve the clash. He overstates the matter if he is read to insist that nonneutrality means jurispathy. Among the most interesting and important cases are those involving direct or indirect clashes between religious and gay communities. Emblematic is the controversy between Georgetown University, where I teach, and the Gay Rights Coalition of the Georgetown University Law Center, an early name for the gay, lesbian, and bisexual student group for which I am an adviser. I use the Georgetown case as a field upon which to discuss different ways of treating the equality and liberty interests of gay and religious groups. The judicial resolution of the controversy, in the opinion delivered by Judge Julia Cooper Mack of the District's Court of Appeals, was jurisgenerative in a way that respected the Roman Catholic nomos without acquiescing in its wrongness on issues of sexual orientation.

Part II further, and more ambitiously, argues that the Georgetown case reflects a distinctively but not uniquely "gaylegal"' jurisprudence. One defining contribution of gaylaw derives from the gay experience of "coming out of the closet." This phenomenon and its history suggest several ideas and principles that illuminate the Georgetown case, especially the value of identity speech and its relevance for both sides of the controversy, and that lend support to Judge Mack's opinion, especially its accommodation of each side's identity needs and the encouragement of nomic dialogue. Most generally, the jurisprudence of coming out contributes to the public law project of understanding and constructively resolving identity clashes, a project impressively initiated by Professor Kenneth Karst and others. Part III of the Essay applies these ideas to other recent culture clashes that have ended up in court: the Boston parade case, where the Supreme Court permitted exclusion of lesbian, gay, and bisexual marchers; the Presbyterian landlord case, where the California Supreme Court required a landlord to rent an apartment to a couple whose unmarried cohabitation offended her religious beliefs; and the Indianapolis pornography case, where the Seventh Circuit disallowed local tort remedies against pornographers whose material harmed women.

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1997

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