Andrew Koppelman, a long time supporter of gay rights and gay marriage, argued that those who disagree with him should have the freedom to live according to those beliefs.
"I've worked very hard to create a regime in which it is safe to be gay. I would also like that regime to be one in which it is safe to be a religious dissenter," Koppelman said to the applause of a group of mostly conservative lawyers.
Koppelman, professor of law and political science at Northwestern University School of Law, was speaking on a panel, "Religious Liberty & Conflicting Moral Visions," at The Federalist Society's "2013 National Lawyers Convention."
After the applause, the audience laughed as Koppelman joked, "The Federalist Society applauding me?"
Koppelman, author of Defending American Religious Neutrality, was speaking more specifically about the case of Elane Photography. The New Mexico Supreme Court recently ruled that Elane Photography violated an anti-discrimination law when it refused to provide services for a gay wedding because doing so would conflict with their religious beliefs. Koppelman disagreed with that decision.
"The strongest argument for accommodation [of Elane Photography's religious objections] here is a pretty simple one: there are lots of other wedding photographers," Koppelman argued.
When he makes this argument to audiences that agree with him about same-sex marriage, Koppelman explained, those who disagree argue that to allow religious accommodations would lead to a large amount of discrimination against gays. This view is shared by many gays, he believes, because of the "open, unapologetic, hateful, sometimes violent" discrimination experienced by gays.
Koppelman also believes that many gays wrongly associate religion with "irrational hatred," and if you believe that, "you're not inclined to accommodate" religion.
Koppelman reminded, though, that many liberal political movements have been influenced by religion.
"The association of religion with political conservatism is a recent development. The social gospel movement of the late 19th century, the role of Catholics in the New Deal, the role of religious groups in resistance to the Vietnam War and the Civil Rights Movement – everything the American Left has ever accomplished in American politics, it has done by alignment with the religious," he said.
Koppelman was joined on the panel by Robert P. George, McCormick Professor of Jurisprudence at Princeton University and co-author of What is Marriage? Man and Woman: A Defense.
George argued that while there are some people like Koppelman among American liberals, it was never the case that liberals would allow accommodations for religious dissenters. During the debates over redefining marriage to include same-sex couples, liberals claimed that allowing same-sex couples to marry would have no effect on those who disagreed, George reminded. When George argued that was not true, he was accused of "scare-mongering" and "invalid slippery-slope reasoning."
Recent events, though, have demonstrated that George's warnings were valid. He pointed this out by saying: "No one, they assured us, would require Christian foster care and adoption services from placing children in same-sex households. No one would require religiously affiliated schools and social service agencies to treat same-sex partners as a spouse or impose penalties or disabilities on those that dissent. No one would be fired from his or her job or suffer employment discrimination for voicing support for conjugal marriage or criticizing same-sex sexual conduct and relationships. No business owners would be required to provide services for same-sex ceremonies that were contrary to the business owners moral beliefs, or punish if he or she declined to provide them. No one was proposing to recognize polyamorous relationships or normalize open marriages nor would redefinition undermine the norm of exclusivity and monogamy in theory and practice.
"That was then, this is now. I must say, though, that I still can't fathom why anybody believed any of it, even now."
The reason, George explained, that he knew liberals would not support the accommodation of those who disagree with them about the definition of marriage, is that "liberal secularism never was, and never will be, and never could be, ... a purely political doctrine." Rather, it is a "comprehensive view" of human nature.
Liberals like Koppelman will continue to present an argument for accommodating those who disagree with them, George believes, but "they will lose the battle in the end."