A jurisprudence of "coming out": religion, homosexuality, and collisions of liberty and equality in American public law.

• Author: Eskridge, Jr., William N.
• Position: Group Conflict and the Constitution: Race, Sexuality, and Religion

Conflicts among religious and ethnic groups have scored American cultural and political history. Some of these conflicts have involved campaigns of suppression against deviant religious and minority ethnic groups by the mainstream. Although the law has most often been deployed as an instrument of suppression, there is now a public law consensus to preserve and protect the autonomy of religious and ethnic subcultures, as well as the ability of their members to self-identify without penalty. One thesis of this Essay is that this vaunted public law consensus should be extended to sexual orientation minorities as well.

Like religion, sexual orientation marks both personal identity and social divisions.(1) In this century, in fact, sexual orientation has steadily been replacing religion as the identity characteristic that is both physically invisible and morally polarizing. In 1900, one's group identity was largely defined by one's ethnicity, social class, sex, and religion. The norm was Anglo-Saxon, middle-class, male, and Protestant. The Jew, Roman Catholic, or Jehovah's Witness was considered deviant and was subject to social, economic, and political discrimination. In 2000, one's group identity will be largely defined by one's race, income, sex, and sexual orientation. The norm will be white, middle-income, male, and heterosexual. The lesbian, gay man, or transgendered person will be considered deviant and will be subject to social, economic, and Political discrimination.

The foregoing contrast can be made at a normative level. At the turn of the millennium, America is at least as religiously diverse as it was at the turn of the century, but religion is less socially divisive and identity-defining. America has internalized the idea of benign religious variation, that there are a number of equally good religions, and one's religion says little or nothing about one's moral or personal worth. The opposite is true of sexual orientation. The concept of sexual orientation barely existed at the turn of the century,(2) but it is charged with normative significance at the turn of the millennium. Most Americans reject the idea of benign sexual variation,(3) that there are a number of equally good sexual orientations, and that one's sexuality says little or nothing about one's moral or personal worth. Just as most Americans in 1900 viewed significant religious deviation as strange, shameful, perverse, or even wicked, so most in 2000 will view significant sexual deviation as strange, shameful, perverse, or even wicked.

The contrast between religion and sexuality has another dimension. Religious precepts are typically invoked as a reason for rejecting the idea of benign sexual variation. Although the rhetoric of family values (or compulsory heterosexuality) and sexual abstinence (or sex negativity) is often secular, it has explicit resonance with the tenets of most American religions. Along with abortion and school prayer, gay rights issues have galvanized religious activism in the political arena. Gay rights rhetoric, in turn, has sometimes been explicitly antireligious and usually seeks to relocate political discourse about sexuality in secular rather than religious values. Although local skirmishes between religion and gay rights had been frequent in the early 1970s, the focal date for national attention to the public collision between homosexuality and religion is 1977, when Anita Bryant's "Save the Children" campaign succeeded in repealing a Dade County (Miami) law that prohibited discrimination on the basis of sexual orientation.(4) After 1977, religious and gay groups have engaged in regular pas de deux over nondiscrimination laws, sex education, and proposals for the repeal of sodomy laws or the recognition of same-sex marriages or domestic partnerships.(5) A lot of the clashes between religious and gay groups have ended up in court.

The public confrontations surprised no one. Religious and sexual subcultures have value-laden visions for the lives of their members and for the larger society as well. They tend to be, in Robert Cover's language, nomic communities, people bonded by associations that preserve and develop a common normative heritage.(6) Nomic communities have a vision of what is ethically right. That evolving vision constitutes an internal law that guides the lives of their members. Cover saw religious groups (his focus) as the classic law-creating, or jurisgenerative, communities. For all but the most insular religious groups, their visions of value and law compete with those of other communities, which today include gay and lesbian communities.(7) In the case of nomic communities competing to persuade the polity of their different values, Cover said, the judiciary stands available as a jurispathic, or lawkilling, institution. The very office of judging arises out of the need "to suppress law, to choose between two or more laws, to impose upon laws a hierarchy."(8)

Cover's understanding of contending visions of law, only one of which will survive the lethal gaze of the judge, was echoed and contested by Justice Scalia's dissenting opinion in Romer v. Evans.(9) Romer held that a state initiative preempting local gay rights ordinances violated the Equal Protection Clause because its breadth reflected nothing more than anti-gay animus. Echoing Cover, Scalia charged the Court with mistaking a "Kulturkampf," which Scalia probably meant as a culture clash between fundamentalist religious and pro-gay nomoi, for a vicious "fit of spite."(10) Challenging Cover, Scalia denied that courts must play a jurispathic role and maintained that courts should remain neutral in such culture clashes. He maintained that culture clashes should be resolved in the popular and legislative arenas. Generally, courts should steer clear of involvement by acquiescing in almost any democratic resolution of that conflict.

Ironically, the term chosen by Scalia is more consistent with Cover's view that it is hard for the judiciary to be neutral. Historically, Kulturkampf means a state struggle to assimilate a threatening minority, or to force conformity upon it. The first Kulturkampf, the campaign that gave rise to the term, was German Chancellor Otto von Bismarck's program between 1871 and 1887 to yoke the Roman Catholic Church to ideological state control.(11) Roman Catholic practices were demonized as fit only for"womanly peoples" and inconsistent with the centralized, homogenous, nation-state that Bismarck was building.(12) To reconcile the goals of state centralization and cultural homogeneity with the deviant Catholic nomos, Bismarck asserted state control over the education, appointment, and speech of parish priests; dismantled church institutions; and expelled religious resisters.(13) Unlike later Nazi policies, Kulturkampf was (is) a campaign of domestication and conformity, not genocide and annihilation. Nonetheless, when the state acts as aggressively as it does in a Kulturkampf, judicial acquiescence is jurispathic and scarcely neutral, contrary to Scalia.

As exemplars of law's neutrality, Justice Scalia's dissent relied on two precedents of the Court that instead illustrated extraordinary jurispathy. The two most prominent examples of Kulturkampf in the United States during the last hundred years were the campaign in the 1880s to discipline the Church of Jesus Christ of Latter Day Saints and the campaign in the 1950s to suppress homosexuality. The anti-Mormon Kulturkampf was ratified by the Supreme Court's decision in Davis v. Beason(14) (among other cases), which Scalia invoked to support the proposition that a community can be excluded from privileges of citizenship if there is popular moral disapproval of its members' consensual practices. The antihomosexual Kulturkampf was ratified by the Court's decision in Bowers v. Hardwick(15) (among other cases), which Scalia invoked to support the proposition that homosexuals can be excluded from at least some privileges of citizenship if there is popular moral disapproval of their consensual practices. Both decisions relied on mainstream religious traditions to place sexualized groups (Mormons and homosexuals) outside of the law because of their deviant, even if consensual, conduct (polygamy and sodomy).

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...