2022 Joseph Smith Lecture on Religious Liberty - LGBTQ+ Equality & Religious Liberty (feat. William Eskridge)

Professor William N. Eskridge of Yale Law School, a renowned expert on the judicial interpretation of statutory law, delivered the eighth annual Joseph Smith Lecture on Religious Liberty at the University of Virginia on September 22, 2022. His lecture, "LGBTQ+ Equality & Religious Liberty: Statutory Principles & The Golden Rule" responded to President Dallin H. Oaks's 2021 Joseph Smith Lecture, "Going Forward With Religious Freedom and Nondiscrimination." Eskridge praised the 2015 "Utah Compromise" statute and identified principles for co-operation between the LGBTQ+ community and religious institutions based on principles similar to those in the Utah statute. 

Transcript

                                      2022 Joseph Smith Lecture on Religious Liberty

      “LGBTQ+ Equality & Religious Liberty: Statutory Principles & The Golden Rule”

                                          Professor William N. Eskridge, Yale Law School

                                                                    22 September, 2022

Kathleen Flake: Good evening everyone. I'm delighted that you're here. My name is Kathleen Flake and I'm the Richard Lyman Bushman Chair of Mormon Studies here at the University [of Virginia]. This is the eighth annual Joseph Smith lecture. It will be given by William Eskridge, John A. Garver Professor of Jurisprudence at Yale Law School. Before turning the time over to him, let me just say a few words from all that could be said about this highly credentialed and much honored scholar. I will leave much unsaid and merely emphasize by summary those aspects which convey what I think in a few words, something of the mastery he has on our topic. Professor Eskridge has written extensively on constitutional law, legislation, and statutory interpretation, religion, marriage equality, and gay rights. Both in the courts and in print, he has argued for legislative reform and has represented litigants in LGBTQ rights. The effectiveness of his arguments can be measured by a statement that was made by no less the jurist than Richard Posner: <quote> " It is a shame that Justice Kennedy's opinion in Obergefell did not cite Eskridge's 1992 —count them 30 years earlier— book since it contained almost every argument made in that 2015 opinion. A prophet before his time, William Eskridge has the satisfaction of having finally been vindicated." <End of quote> Professor Eskridge's standing in the profession is also marked by his field– establishing —you can't say those words too often— a field establishing book on the evolution and judicial interpretation of statutes now in its sixth edition and followed by what have become classic articles in the field of legislation. This work too, is central to what his authority is to speak to us tonight on strategies for alleviating the ongoing conflict between two of our most treasured constitutional rights, equal protection, and free conscience. Finally, and on a more personal note, no less than last year's lecturer who spoke on this same topic from the point of view of religion, Professor Eskridge speaks as one having the authority that comes from knowing what it is to be discriminated against. So for all these reasons and more that time does not permit saying, please welcome Professor William N. Eskridge as the Eighth Annual Joseph Smith Lecturer. Bill. 

William Eskridge: Well, I don't think I've ever had a more gracious or learned introduction. Thank you. It's a great honor. I'm surrounded by old friends and new friends, I hope, and it's a great honor to speak in The Rotunda. Both my grandfathers went to law school here and I taught briefly here at the University of Virginia and hosted two dinner parties at The Rotunda that were official law school events. The Rotunda has never looked better, and I congratulate, Kathleen, you for having this [Joseph] Smith Lecture series, which is just marvelous and I'm honored to be chosen. The theme of my lecture is going to follow up on President Oaks's lecture last year, and I think one suggestion in his lecture is that we're at a crossroads, and the fear that I have [which] may be shared by the president is that we've too often been seen choosing the wrong path on some of the most conflictual issues of our time.

But it is true that if you look at Supreme Court cases and other famous cases, there are an increasing incidence of clashes of the sort that Kathleen Flake was describing between religious liberty and LGBTQ equality. And I've given a few of the cases and one that's on its way probably to the Supreme Court. The grandparent case is really the Masterpiece Cake Shop case. That arose in Colorado where a religious pastry artist, as he called himself, declined to do a wedding cake for a gay couple who he knew and liked. They brought a complaint in the Colorado Civil Rights Commission which came down pretty hard on the baker and the US Supreme Court, in an opinion by Anthony Kennedy, respected both the non-discrimination norm for LGBTQ people and the non-discrimination norm as regards religious people and ultimately reversed the Civil Rights Commission's order in what I think it actually was a model opinion, but that's not true of the other cases. In Arlene's Flowers, this was a state Supreme Court decision, the Supreme Court denied review in Washington where a florist artist declined to serve flower arrangements for a gay wedding.Now, in this case, like in the Colorado one, the state courts lowered the boom. In this case, it was courts lowered the boom on Barronelle Stutzman, assessing personal damage as well as damages against her shop and attorney's fees. In that one, the final word was that the anti-discrimination norm went out.

City of Philadelphia versus Fulton, Sharon L. Fulton and Catholic Charities sued the City of Philadelphia. Catholic Charities participated in a government program for the placement of foster children. And in their role as screeners in the government program, Catholic Charities, would not place with same-sex legitimately married couples. The Supreme Court there overturned the lower court decisions and directed Philadelphia not to discriminate against Catholic Charities. 

And then finally, here's a case that's on its way is the Yeshiva University case. There was a headline even yesterday on this where an Orthodox Jewish University is being sued by a gay and lesbian student group to give official recognition and facilities to that group. The lower court in the state of New York has found in favor of the students and issued an injunction, and others are yo-yoing through the appellate courts to see whether that's going to be stayed. So there are a lot of these controversies, and one might ask —and I'll briefly tell you why I think— there have been so many of them in the last, say, five or ten years. It's three different things. One thing is, maybe the main one is that LGBTQ people are now more in the public spheres, identifiable as sexual and gender minorities. 

When I taught here at the University of Virginia in the 1980s, I was completely in the closet. Now I was discriminated against, but I was completely in the closet, as were most LGBTQ people, particularly professionals. We were outlaws in the state of Virginia, felons actually, until the Lawrence decision rendered us no longer outlaws. And then a series of federal court decisions rendered us potential in-laws when marriage came to Virginia in 2014. Now an effect of that and Obergefell is that there are more LGBTQ people who are out of the closet and they're out of the closet in a very visible way. Maybe as a wedding couple. Maybe as the leader of an organization, which they would've been afraid to do earlier. Another result of this, of course, has been an increase in the last thirty years anyway, of anti-discrimination laws protecting specifically sexual and gender minorities. Most recently, ironically, Virginia, which in 2020 extended its law in exactly this way. And then, the protections are even in states like Utah, which I'm gonna talk about presently.

Another one not as well known and maybe not as important, is in the same time period that I'm talking about public accommodations laws, which is the subject of a lot of the disputes, have themselves changed. The original idea, embodied, still in Title 2 of the '64 Act is that common carrier type organizations like hotels and restaurants, maybe gas stations, should not discriminate based on race, et cetera. But as reflected in the Virginia statute, current laws apply to vendors and services generally —a much broader application than had historically been the case.

And then finally, and certainly not least importantly, is the evolving role of religion. Religion's always been important in the United States and it's always been important in a lot of ways on moral issues of the sort that I'm gonna be talking about. One thing that has changed, however, somewhat, is the more prominent role that religion is now playing in public spaces. We've seen in the last generation, it seems to me, religion taking more public positions. I grew up in an area where the dominant religions were evangelical. Evangelicals generally stayed out of politics. Today, they're saturated with politics. Religions are involved in political campaigns, overtly. They're involved in presidential campaigns. And this is not well noticed. Religions are often now participants in or partners in governmental state programs as illustrated by the Fulton case. So those are some of the reasons why there are often clashes between the dignitary claims of LGBTQ people to have weddings or to be recognized, and the dignitary claims of religious people, not to be hijacked into the projects of these sexual and gender minorities.

But I do wanna give you some cautionary “Post-Its.” I do think that the media exaggerate the culture war. And I'm certain after working on my most recent book, the marriage book, and doing this for like 40 years, I'm absolutely certain that most people of faith do not want to discriminate against LGBTQ persons. And most LGBTQ persons do not want to intrude upon persons of faith. In other words, I think we start off, in fact, there's a lot of overlap. A lot of LGBTQ persons are religious, including very traditional religious people. So the question is, there is some reservoir of goodwill often, and that means that some of these clashes, which seem to be incommensurable, I will admit, do not necessarily have to end up being acrimonious. And there are ways to resolve these clashes, uh, that are not winner loser ways. And I'll give you three examples. 

Example 1: The Catholic Church & The City of San Francisco

One is San Francisco, you know, a hotbed of progressivism, and one of the most aggressive anti-discrimination laws in the United States. In 1996 San Francisco expanded its gender discrimination law to say any contractor who does business with San Francisco has got to give employment benefits to registered domestic partners who were mostly gay and lesbian. Now, the Catholic church engaged in a lot of joint projects with San Francisco in this period, did not recognize, certainly not the same sex marriages, but they also did not recognize domestic partnerships, which they considered "watered-down marriage" and also theologically objectionable, at least in the 1990s. So we were headed for one of these acrimonious showdowns, except it didn't happen. Archbishop Levada, Mayor Willie Brown, Levada, a John Paul theological conservative. Willie Brown, dyed-in-the-wool left-winger, actually sat down. Willie Brown wanted to help LGBT couples, but he didn't want to bash the Catholic church. Levada did not want to formally recognize domestic partnerships, but didn't want to discriminate against LGBTQ people. And indeed, he actually supported the idea of the more people who had health insurance, the better. So, they came up with this idea, and that is that employers, including the Catholic church, could comply with the discrimination law, the domestic partnership law, if they allowed all employees to designate someone in their household to be the designated healthcare beneficiary. Could be your spouse, could be somebody else. 

Example 2: LGBTQ Student Group Recognition at Georgetown

Here's another example. I told you I did teach briefly at the University of Virginia, and then I was a refugee at the nation's probably leading Catholic law school, Georgetown University. And I arrived there right after the students had sued Georgetown, the students in the main campus and the law school uh, to recognize —does this sound familiar? —gay and lesbian student organizations at the main campus and at the law school, the University, Father Healy, one of the leading educators of the 20th century and a[n] absolutely brilliant and humane person said, "We are a Jesuit-run law school." He himself was a Jesuit priest, "and this is not within our faith tradition to recognize student groups that are going to be advocating for things that we do not approve of theologically." The students thereupon sued Georgetown under the DC Human Rights Act, which then and now broadly prohibits discrimination based on sexual orientation. They've added gender identity since then. And it applied to public accommodations, but also specifically to educational institutions precisely like Georgetown. So the students had a plausible case and plausible coverage. The suit went to judgment and on appeal, there were three factions. Judge Julia Cooper Mack, the first black woman to be on the DC Court of Appeals, delivered the judgment of the court rebuffing overtures from her white liberal brethren and her even whiter conservative brethren. And her judgment was based on the statute, which did not require recognition and troubling free exercise concerns, she ruled that Georgetown did not have to recognize the lesbian and gay student group, but did under the statute and consistent with the First Amendment, did have to provide them facilities and office space so that they could organize privately, but without the Georgetown imprimatur.

So by the time I got there and I became the sponsor of the BiLAGA group, no one was perfectly happy with this Solomonic, literally Solomonic resolution, but it stuck. And I can tell you from talking to the Jesuit priests, including Father Healy, the Catholics who ran the school felt it was very workable and the students were delighted to be recognized in the way that they were. (Now, I give you this slide mainly so that you can see JaLynn Prince who is talking to President Oaks and everything that he says is stuff that I agree with.) 

Example 3: “The Utah Compromise”

Now, my third example is Utah, and we've got the author of the statute sitting in the audience, Robin Wilson, so she can correct me. Utah in 2014 was issuing same sex marriage licenses by court to decree. The Church of Jesus Christ, Dallin Oaks and others decided well, we're gonna follow the law. And we are going to try to work something out whereby everybody gets a marriage license, but conscience clerks are not put on the spot. So that was one idea. But another idea was why shouldn't the church put its money where its mouth was? They supported anti-discrimination, but they also supported religious liberty. Why don't we see if we can't pass a statute that combines the two? And so they inspired the overwhelmingly Republican Senate and House, and Equality Utah—representing the LGBT community—to work on a statute which was passed in March of 2015 by the Utah legislature. And in my opinion, it's a great statute. The statute expanded employment and housing, not public accommodation, but employment and housing discrimination admonitions to include sexual orientation and gender identity. The statute expanded and introduced some religious allowances and permitted gender differentiated housing at BYU, for example. The statute gave some latitude for gendered dress codes by employers, but only if gender minorities were properly accommodated. And then in a very unusual provision for an anti-discrimination law, the statute assured workplace expression on religious and moral beliefs for all employees, limited only by neutral and neutrally applied employer policies. (There's the signing ceremony. That's, uh, Senator Stewart Adams. He's not the governor, but he's the godfather of this and Robin Wilson is the godmother of this.) 

Now, the people in Utah, [Senator] Adams, President Oaks, notwithstanding my constant admonitions when I go out there refer to it as "The Utah Compromise," which I denounce. I've denounced it in public and I've denounced it in private. "The Utah Compromise" language is seized upon by people on the left and people on the right to discredit the Utah statute of principles as like a one-off thing that should not be replicated. And I reject that and I urge you to reject that as well. Though you might find "The Utah Compromise" language too enticing once I put it in your head to reject. So let me, let me explain what I'm talking about. I think statutes can embody principles, and what I'm talking about is not compromises where you split the baby in half. That's not what Solomon did, though he did threaten it. Instead, I'm talking about you sit down—Dallin Oaks says you should—with mutual respect and trying to understand what are the most important things you're hearing from other people. And then you try the most respectful way to express, “Here's what's important to me and other people that I might represent.” And you can come up with, I think some principles, and these are great principles for a great country, great state, great country, including Virginia. 

Principle 1: The Anti-Discrimination Principle, or, “Fairness for All”

So one is the anti-discrimination principle. The church likes to call it "fairness for all," language that I also like. And this is I think one of the great principles of America. I think Thomas Jefferson, who wrote the Declaration of Independence, kind of, I think he would agree with some of this. And that is that people should be treated equally. That there are certain traits or classifications among them: religion, race, sexual orientation, gender identity, sex. There are certain traits that are not admissible to exclude or discriminate against people in the marketplace or in the public square. Now we do discriminate within the family. We do discriminate within churches. We do discriminate in bowling leagues. I understand all that. But when you're talking about the marketplace and the public square, these ought not to be differentiating, dividing practices. And among the reasons is a class reason—that's classification: class reasons. We've always been a nation of groups. We've always been a nation of groups that entertained fundamental disagreements with one another. And the 19th century was often religious groups who hated one another. Today it's often ethnic, religious, et cetera, et cetera.

As Justice Harlan instructed us in the Plessy dissent, whatever you think of the nation of groups, our fates are intertwined and we've got to get along with one another. And the anti-discrimination principle, the "fairness for all" principle, is a good way of thinking about it. And I'm also gonna throw in, since I am a law professor, the research that I've done on the 14th Amendment, uh, which I think might be original, is the 14th Amendment, people don't realize, particularly these original meaning folks, actually originated in the Ohio Constitution.[i] It had antecedents before that, but there was an equal protection clause in the Ohio Constitution. There were similar clauses with different language in other state constitutions. And the great interpreter, in my opinion, of these provisions was Charles Sumner, who was also one of the godparents of the 14th Amendment, though not an author of it. And Charles Sumner in an early apartheid case made the argument that the Massachusetts equality provision ought to be interpreted to prevent any kind of public recognition of cast or class. That's the negative thing. But here's the positive thing. He said, the state ought to treat its citizens as they were your children and treat them with equal care. That's a positive idea to treat them with equal care.And I think that's the idea that binds together non-discrimination. And I might add, I think that's also embodied in Justice Kennedy's Masterpiece Cake Shop decision. 

Principle 2: Freedom to Be Myself

Here's a second one. These are pretty banal principles, I'll admit, but I think they're great principles. Freedom to be myself. Uh, the modern liberal state in which we live is a state that aspires to create a structure within which all of us can personally flourish. We can express our individuality, we can make our own life plans without being totalized by the state. Kathleen mentioned the idea of the closet. Every home has closets, but a closet is not a good place to call your home. And that is a lesson that LGBTQ people, particularly at Virginia, can aspire to announce. But in doing my marriage book, I also encountered the closet as a refuge for religious people as well, and I find it equally undesirable. I came across one person after another, accomplished professional people who had been involved in some way or another in a constitutional amendment or this, that, or the other who implored me—and of course, I respected it—to keep them completely anonymous so they couldn't be traced back to them for fear that in the current professional environment they would be discriminated against if they were outed as somebody who had opposed gay marriage. Justice Alito has mentioned this in more than one Supreme Court dissent, and there's a point.

Now, here's where the rubber hits the road on the freedom to be myself. And this is what generates the cases. My freedom ought not hijack yours and vice versa. And that summarizes why these cases are very difficult and we'll get to a solution in a minute. 

Principle 3: Expressive Association

Third principle is expressive association, uh, is that, uh, these rights and these obligations are not just individual, but that's what we often talk about, but are also institutional is that LGBTQ people have flourished in part because of institutions that have nurtured us. Religious people almost by very definition flourish because of institutions that have nurtured them and provide them a traditional background. The First Amendment has traditionally protected that, Stonewall and even the idea of coming out of the closet would not have been possible for gay and lesbian Americans if they did not have, had not had the First Amendment protecting them against police brutality. And that was based upon victories won by the NAACP Inc.'s Fund in the 1950s and 1960s. And then some of those same precedents are now being deployed by religious minorities. 

Applying the Principles

So what about applying these principles to the cases that I've suggested I'm going to criticize. I like Masterpiece, but not the others. Well, I think again, progress demands equal respect. I think Masterpiece is a good example of it. I think you need to think outside the box. I think you need to be creative to find mutual accommodation. Now, here are some corollaries that I'm gonna draw in ways that these corollaries can criticize some of these other decisions.

Corollary 1: Don’t Strain to Apply Anti-Discrimination Laws to Core Religious Institutions

So corollary number one, is that I'm mainly a teacher of statutory interpretation, as Kathleen said. And one precept of statutory interpretation is that you should not, whether you're a judge or an executive, or even just a citizen, in my opinion, you should not strain to apply anti-discrimination laws to core religious institutions. Lance Wickman has written a wonderful article applying this idea of core circle, concentric circles to religious freedom.[ii] And everybody would agree that mosques, synagogues, churches, and whatnot are core religious institutions. I would say seminaries are core religious institutions. One of the reasons, as a matter of principle, I support the treatment of BYU, the special treatment of BYU in the Utah statute of principles is that, you know, The Church of Jesus Christ of Latter-day Saints does not have a professional clergy. BYU is kind of like a quasi-seminary. And I've said this repeatedly. What about Yeshiva? Tom Griffith suggests to me that maybe this also might apply to Yeshiva, maybe, uh, although I prefer to rest my view on the Yeshiva litigation on the statute, and that is the New York City anti-discrimination law, under which the students are suing, does exempt religious corporations that are chartered as educational. And it doesn't seem to be limited to strict seminaries. Now, the trial judge in June found that Yeshiva had enough secular content that it was not a religious corporation. But when you read the record, I am not persuaded of that. And I would not strain to read the New York statute to include Yeshiva. That would be the end of the case. I might add that even if Yeshiva is covered, which I think it is not, why not the Georgetown accommodation? Why not work out something? And Yeshiva itself says, “We support anti-discrimination. We counsel students.” Why don't you allow something more informal that is not formally recognized by Yeshiva? Now they've gone in the other direction, but I would implore them to think about these alternative ways of doing the problem. 

Second Corollary: Religious Institutions Serving as State Agencies Subject to Neutral Rules

Here's a second corollary and a second case. In my opinion, religious institutions that are serving as state agencies are subject to neutral rules the same as the state. Now, that means —I'm not wild about what the Supreme Court did in Fulton—if Catholic Charities had been an independent foster care organization doing its own thing, licensed by the state, great. But it was not, it was a state agency. That's the actual word that was used working on a state program. After the Supreme Court's decision, the program itself, state program now openly discriminates against gay married couples. And this takes a tiny chink out of Obergefell. Now again, why don't we try to think outside the box? Justice Kavanaugh, Yale alum, actually did that at oral argument. He asked Counsel for Philadelphia, isn't there a middle way? Isn't there another way of doing this? And there's a genuine question. You don't often get that at the Supreme Court level. It was actually a genuine question he wanted to know. And as is often the case counsel, you know, uh, had no clue what to say even though it was a Yale graduate. Ah, Okay. If they'd been a UVA graduate, maybe the counsel would've been more nimble on their feet, right, Doug? Well, he totally blew it. Well, read the Utah statutes! The statutes of principles read the Utah 297, which is the marriage license statute. It says everybody gets a marriage license. No, no problem. But behind the screen, the clerk's can tag-team. Why not remand the Fulton case to the trial court so that Philadelphia and Catholic Charities can restructure the program, or Philadelphia can have a chance to restructure the program so that everybody who wants to be a foster parent gets a fair shot? You gotta be qualified. And behind the screen, there are more than a dozen agencies working with Philadelphia to place these children. Behind the screen, there can be some sorting process based upon enthusiasm as well as religious belief. Why not? 

Corollary 3: Service Providers Must Serve All Comers But Should Not Be Forced to Supply Customized Services

Finally, in my opinion, private service providers, you know, like pastry shops, et cetera, must serve all comers. You know, if there's a public accommodations law, but should not be forced to supply customized services. Now, this is the most fine-grained and perhaps the least justified of all my things. But this is what I believe. I think Arlene's Flowers was a very bad decision. My main criticism traditionally of the Arlene decision has been that I think it's unjust. I think it's politically insane for judges and LGBTQ groups to raise the stakes of these controversies. In other words, to throw the book, not just at the floral shop, but at Barronelle Stutzman herself. The remedy could have just been against the floral shop. But the court went out of its way to assess both attorney's fees and damages against Barronelle Stutzman herself. I'll be the first to admit it's been settled out of court for $5,000. Okay? But still, I think that's deeply, deeply wrong. But here's another way you could have done it. Rather than just affirming a broad injunction and ruinous damages, you can remand it and give them a chance to have a forced dialogue.

So here's what happened in that case, Stutzman knew the gay couple. She liked them. She's sold them lots of flowers, including for anniversaries and so forth. Guy said, "We want flowers for our wedding." She turned around and walked away. Now, I think it would be a better approach for somebody, maybe a judge to say, “Look, Barronelle Stutzman, gay couple, sit down and see if you can't work something out.” And here's the baseline: Barronelle, don't you, you should at least sell them standard floral arrangements that were in her catalog. There was an online catalog, gay couple. You ought not to be asking her to participate in your wedding to set up flowers at your wedding. And, and maybe to customize the arrangement in other ways. Maybe start from that and see if you can't reach some kind of resolution.

Conclusion

So that is the resolution. I have three corollaries and three principles and a very zaftig book that answers all of your questions, Though it's ostensibly about marriage equality and it's the definitive legal history of that struggle and whatnot. And that debate really 20, 30 year debate. But it also is, I think, a gripping account of the role of religious leaders on all sides of the issue. And if you look in the index, you will find literally dozens of Latter-day Saints represented in the index and a pretty nice discussion of the 2015 Utah statute of principles, which I do not call “The Utah Compromise.” 

[i] See, e.g., William N. Eskridge, “The Marriage Equality Cases and Constitutional Theory,” Cato Supreme Court Review 111 (2014): 111–138, 119n27.
[ii] As of the date of this lecture, Wickman was serving as current General Counsel for The Church of Jesus Christ of Latter-day Saints. Wickman is also an emeritus General Authority Seventy of the Church.