Professor of Law and Director, Center on Dispute Resolution, Quinnipiac University School of Law; Visiting Lecturer and Senior Research Scholar, Yale Law School. For helpful comments and conversations, I am grateful to Akhil Amar, Ian Ayres, Michele Beardslee, Laura Dooley, Ron Dooley, Maggie Herzig, Doug Ne Jaime, Robert Mnookin, Leonard Riskin, Joseph Singer, William Rubenstein, Tom Schaffer, Lawrence Susskind, and workshop participants at Harvard University, University of Missouri-Columbia, University of Florida, St. John's University, and Quinnipiac University law schools. Christopher Donlin, Allison Kaas, and Celestia Price provided helpful research assistance.
This Article takes seriously two important legal claims.1 The first claim, increasingly sounded by opponents of marriage rights for same-sex couples, warns that when private or governmental institutions create rights for gay and lesbian people,2 those institutions simultaneously and inevitably threaten opponents' rights of religious liberty.3 The second claim, articulated-surprisingly enough-by at least two federal district-court judges, is that legal disputes involving these potentially conflicting interests can and should be resolved through mediation.4 The thesis of this Article is that these judges are correct: mediation holds tremendous potential in legal disputes that pit "gay rights" against "religious liberty."
Mediation offers a way out of the polarization that often characterizes public discourse about the interplay of religious faith and homosexuality. As this Article argues, events that transpire in one part of the country can have dramatic and unintended consequences in other regions; a court's decision that definitively closes a conversation in Massachusetts can raise fears and a host of troubling questions from California to Maine.5 Cases involving education, employment, or public protest can be cited in discussions outside those legal contexts to create worries about the implications of any norm requiring equality for lesbian, gay, bisexual, or transgendered ("LGBT") people-especially in the law of marriage. In other words, when the political process can twist court victory into electoral defeat, judicial precedent is not always and everywhere an unalloyed good. Agreements that emerge from Page 750 negotiation and collaboration, in contrast, may better serve the needs of the parties today and prevent political distortions tomorrow.6
There is no doubt that many people-religious objectors as well as LGBT people-feel embattled.7 A significant subset of objectors to LGBT rights feels an emerging threat to religious liberty; they fear that a law or policy ensuring LGBT equality will require them to do something inconsistent with their religious beliefs or prevent them from doing something that their religious beliefs require.8 At its most extreme, the concern is that the inclusion of same-sex couples in definitions of marriage will lead states to silence and drive from the public sphere any opposition to LGBT rights, including opposition that is based upon religious tradition.9
Various worst-case scenarios have been forecast:
* Students and employees who object to homosexuality or same-sex marriage would be forbidden from expressing these views in their schools and places of employment, respectively;
* Parents would be powerless to intervene when public schools introduce children to ideas that are contrary to their families' sincerely held religious beliefs; and Page 751
* Anyone expressing anti-gay sentiment, including statements that are based upon religious precepts, could face a range of responses: at the mild end of this spectrum would be dismissal and disrespect in public debate; at the severe end would be civil liability under antidiscrimination laws or even criminal sanction under "hate speech" or breach-of-peace laws.
Three cases have fueled the perception that advances in LGBT rights pose a threat to religious liberty: Peterson v. Hewlett-Packard (a dispute between an employer who posted gay-affirming posters and an employee who posted Bible verses, some condemning homosexuality, in response),10Parker v. Hurley (a dispute between a public school and parents over discussions and materials depicting same-sex couples and their families),11and Startzell v. City of Philadelphia (a dispute over a city's arrest of some street preachers who were protesting at a gay-pride festival).12 In each case, the court ruled against the religiously motivated opponent of gay rights.13 Thus, opponents of LGBT protections frequently cite these cases as examples of the silencing and oppression that they fear will accompany legal norms upholding LGBT equality. I call these cases "paradigmatic," both to signal the way opponents of LGBT protections have used these cases as a rallying cry and because, despite their diversity, they share characteristics that suggest that mediation would be a better process for resolution than litigation.
Consider, for example, the case of David Parker. His dispute with the Lexington, Massachusetts school system began in 2005.14 This was only about a year after Massachusetts began to marry same-sex couples, pursuant to the Supreme Judicial Court's decision that the exclusion of same-sex couples from civil marriage was unconstitutional,15 but years after the state prohibited discrimination in public schools on the basis of sexual orientation and required that public-school curricula encourage respect for Page 752 all individuals regardless of sexual orientation.16 When David's child brought home a book presenting same-sex couples and their families as similar or equal to different-sex couples, David and his wife Tonia objected.17 The Parkers requested notice and the chance to pull their children from any adult-initiated discussion of homosexuality or same-sex marriage.18 When the school denied these requests, the conflict escalated to the point that law enforcement removed David from a school building and arrested him for trespass.19 Several months later, along with another family, the Parkers sued the school.20 The federal district court dismissed the action for failure to state a claim upon which relief could be granted, and the First Circuit affirmed.21
In the course of his opinion dismissing the plaintiffs' claim, Federal District Court Judge Mark Wolf acknowledged the difficulty of finding cooperative solutions in cases like the one before him, but continued:
[I]t is evident to the court that this dispute involves parents who are passionately devoted to their children, many people who support them, and committed educators and their many supporters as well. Profound differences in religious beliefs are also a hallmark of our diverse nation. It is often in a community's interest to try to find a reasonable way to accommodate those differences. Litigation of the remaining state law claims in state court will result in a judicial decision of the issues presented. It is not likely to end the intense disagreement between the parties or the divisive impact of it on their community. Therefore, the parties may wish to attempt to mediate their dispute before resuming their legal battle in state court.22
Thus, Judge Wolf counseled that even an intense, values-based conflict around issues of homosexuality and religious faith could benefit from mediation.
He is not alone in recommending negotiated resolution of such conflict. In Chambers v. Babbitt, Judge Donovan W. Frank similarly urged the parties to find some peaceful resolution to the conflict on their own.23 Page 753 In that case, high-school Principal Dana Babbitt prevented a student, Elliott Chambers, from wearing to school a sweatshirt bearing the message "Straight Pride" because the shirt offended some other students and the Principal feared for the safety of Elliott and other students.24 In granting Elliott's motion for a preliminary injunction, Judge Frank implored:
[I]t is difficult for this Court to understand why all parties to this lawsuit and the members of the Woodbury community, including its parents, schools, student councils, and community leaders, have relinquished their responsibility to a federal court to create parameters of behavior for its schools and its youth. . . .
. . . The Court would suggest that it...