Jonathan Rauch - "Gay Rights, Nondiscrimination, and Religious Liberty: Can We Avoid a Train Wreck?"

Good afternoon everyone and welcome to the 87th David Sieben Memorial Lecture on Civil Liberties and Civil Rights, endowed in 1973 by family and friends of Professor Baum. This lecture series has served as a testament to the values he embraced and also to his impressive body of work. Today we are pleased to welcome Jonathan Rauch, Senior Fellow of Governance Studies at the Brookings Institution in Washington, DC. In addition to his affiliation at Brookings, Mr. Rauch is a contributing editor for National Journal and The Atlantic. He is a graduate of Yale College and spent his early postgraduate years as a newspaper journalist. He has since gone on to write several books and numerous commentaries on government, public policy, and gay marriage, among many other topics. In 1999, he wrote a book entitled 'Government and Why Washington Stopped Working,' in which he asserted, quote, 'Government has become what it is and what it will remain: a large, incoherent, often incomprehensible mass that is solicitous of its clients but impervious to any broad coherent program of reform.' Little did we know that a few decades later we would look back on that time in the late 1990s almost as a golden age for government functionality when compared to what has happened since. This afternoon, Jonathan will take on one of the most contentious and salient issues in modern America: how our society can reconcile gay rights, non-discrimination, and religious liberties. So with that, I give you Jonathan Rauch.

What an honor. Whoops, I need to turn on my mic, that would be helpful. What an honor to be here. I am not an academic or a professor or even a holder of a PhD or, for that matter, a master's. My highest degree is an M.A. and a bachelor's, and it's a great honor to stand before all of you at this institution and be able to talk about what I think is emerging as one of the most interesting, difficult, yet ultimately solvable legal and social issues of our time. For a parable telling the story of where we are in the discussion between gay rights and religious liberty in 2016, let me start by asking you to consider two bills that are before the current Congress. One is called the Equality Act. It would grant LGBT Americans — who I'll interchangeably shorthand as 'gay' today to save syllables, with no disrespect for exclusion implied or intended — it would grant gay Americans protection from housing, employment, and public accommodations discrimination under federal law, which is something that we lack at present. It is championed by Democrats and liberals. The other piece of legislation is called the First Amendment Defense Act, or FADA. It would preemptively shield all those people who object to same-sex marriages or who choose to discriminate against same-sex marriages, whether on religious or moral grounds, and it would shield them from any federal sanction or disallowance of a benefit, in effect allowing them to do that. It is championed, as you would imagine, by Republicans and conservatives. Though coming from opposite corners, the two bills have something in common: each tries to take all the marbles and leave the other side with nothing, or at least with as little as possible. The Equality Act includes a provision revoking any protection which religious objectors might enjoy under the Religious Freedom Restoration Act. The First Amendment Defense Act shields the objectors from discrimination while leaving gay people wholly unprotected from discrimination under federal law. If these bills are opening positions in a negotiation, then what should ultimately happen is legislative bargaining leading to the obvious compromise: protections for gay people plus exemptions for religious objectors. Now, that may or may not happen. Very little happens in Congress these days, for which reason the safer bet is probably not, at least in the short term. In fact, however, both bills seem to be based on moral conviction, not merely on strategic positioning. In that respect, they're emblematic of an unfortunate development: an issue on which just a few years ago there seemed to be reasonably good prospects for reasonable accommodations has hardened into legal and political trench warfare. I'm a reasonable accommodation advocate. I haven't given up, not by any means. The 2015 gay Mormon deal in Utah demonstrates that conciliation is still politically possible and it's still socially ennobling. The polarization and backlash and general nastiness following on one-sided mini-riffs and bathroom bills in places like Indiana and North Carolina have demonstrated that the absolutist path is costly and socially divisive. That said, to understand where we are right now and how we got here, I think we need to talk about an elephant in the room which gets little or no direct public discussion. We need to talk about what's wrong with the way most Americans think and talk about non-discrimination. I'm going to argue in this talk that perhaps the biggest obstacle to conciliation — and certainly one of the biggest and possibly the toughest — resides outside the four corners of the gay rights/religious liberty debate per se, and that obstacle is the absolutist, relentlessly stake-raising nature of non-discrimination policy as activists and the public increasingly understand it, or rather as they misunderstand it. I'll start with the recent hardening of the lines on each side of the LGBT religion debate, then explain why I think a misinterpretation of non-discrimination policy is pushing compromise out of reach, and then finally I'll assess the choice between two social models of non-discrimination: one absolutist and myth-based, the other pluralist and reality-based. Let's start with the religious side. Religious doctrines about and objections to public acceptance and recognition of homosexuality take many forms. As an atheist homosexual, I am an outsider to those doctrines and objections, and I disagree with them. But here is not the place to talk about religious teachings and social sexual orientation. My respect for the First Amendment's unique protectiveness of religion, and also for the unique social centrality and sensitivity of religion, strongly inclines me to find ways to let religion go on about its business whenever we can. Thus, some stipulations: I acknowledge that human sexuality is part and parcel of the theologies of many religions in a way that today race is not. I accept that religion enjoys and is entitled to a special place in American law and life. And to avoid subjecting religious individuals and faiths to public inquisitions, I believe in treating religious objections as sincere and genuine, at least as far as law and public policy are concerned. All of which leaves me believing that religious people and institutions have a legitimate and well-founded claim to be cut some slack by law and society, even if they sometimes use that slack to behave in ways that strike many people as intolerant and hurtful. However, many gay folks — okay, most gay folks — don't share my assumptions. Instead, they look at religious objectors and see a desire to discriminate in the name of religion and to leverage religion to obtain an explicit license to discriminate. To many of my gay friends, this is not about live-and-let-live; this is an aggressive effort to deny LGBT people the legal protections and the social equality which religious people already enjoy and take for granted. Unfortunately, over the past several years, the words and deeds of many on the religious right side have done nothing to allay my friends' suspicion. To the contrary, some religious liberty advocates have been quite explicit about their desire and their intent to discriminate, at least against gay couples if not necessarily against gay individuals, and they've been explicit about their intent to discriminate even in commercial environments which advertise themselves as open to all-comers and which seem facially remote from any kind of religious venue or activity. My LGBT friends thus look with dismay and shock upon Mississippi's very broad religious protection law, which gave religious people exemptions from anti-discrimination laws which did not in fact exist. It was struck down by a federal district court, but we've seen a whole lot of that kind of heads-I-win, tails-you-lose legislating in the wake of the Supreme Court's gay marriage decision last year in Obergefell. Many states began moving, many many refs. In some cases, advocates of such measures made explicit that their goal was not just to defend religion but to resist and ultimately revoke same-sex marriage, using salami-slicing tactics similar to those of the pro-life movement. Ryan Anderson of the Heritage Foundation, who I think will speak here soon, put his cards on the table when, in a meeting at Brigham Young University, he explained, according to the Deseret News, quote, 'how taking a page from the anti-abortion movement could help traditional marriage supporters chip away at the high court's Obergefell vs. Hodges ruling.' Same-sex marriage has thus been the leading catalyst of conflict. Bakers, florists, photographers, others have been sued and sanctioned for turning down same-sex marital business. Mom-and-pop companies like Oregon's Sweet Cakes by Melissa and New Mexico's Elaine Photography have become nationally famous, or infamous, for turning away gay couples. It's important to remember, though, that same-sex marriage is only the most prominent aspect of a multi-faceted conflict. Some cases involve homosexuality as such but not marriage per se. ChristianMingle.com recently settled a lawsuit by agreeing to allow searches for same-sex matches. In Michigan, a pediatrician refused to treat a baby with two moms, telling the parents, 'After much prayer, I felt I would not be able to develop the personal doctor-patient relationship that I normally do with my patients.' Moreover, indeed, the boundaries of this kind of dispute extend beyond sexual orientation and gender identity. The Hobby Lobby case and the Little Sisters of the Poor case involved contraception, for example. Albert Mohler, the intelligent and influential president of the Southern Baptist Theological Seminary, writing in July, said he sees the conflict as implicating the entire sexual revolution, not just the LGBT piece of it. And I quote: 'The conflict of liberties means that the new moral regime, with the backing of the courts and the regulatory state, will prioritize erotic liberty over religious liberty.' Given the potentially far-reaching nature of the conflict, I wish I could say that the modal religious leader was trying to ratchet down the rhetoric and the stakes or otherwise was playing an ameliorative role. Unfortunately, I can't. Instead, we're often told we're on the brink of a war on religion, a vast apocalyptic battle. Moeller warns us that no person of faith anywhere is safe. I quote: 'The religious liberty challenge we face consigns every believer, every religious institution, and every congregation into the area of conflict where erotic liberty and religious liberty now clash. There are no limits to that battle.' Virginia State Delegate Todd Gilbert had this to say when he spoke recently in support of a state version of the First Amendment Defense Act: 'The activists who presume same-sex marriage are not satisfied with equality, and they will not be satisfied until people of faith are driven out of this discourse, are made to cower, are made to be in fear of speaking their minds, of living up to their deeply held religious beliefs. They want us driven out.' One of my own Catholic acquaintances recently asked me, in agonized and angry tones, 'How much longer am I going to be able to live in this country before someone makes it impossible for me to raise my kids in my faith or to go to the school if they go to?' I don't doubt my friend's sincerity, but language like 'they want us driven out' is not only wildly inaccurate, it is the sort of hysterical talk one hears in broken and violent societies. Though those who invoke it may regard their posture as defensive, their hysteria reframes just about any imaginable compromise as active cultural suicide. This is, if I may say so, very, very unhelpful. Meanwhile, at both the state and federal levels, the religious liberty movement has generally, though not universally, drawn hard lines against non-discrimination protections for LGBT people. It has also demagogued bathrooms for good measure, but that's another conversation. It's not my job to advise Alliance Defending Freedom, which is the public interest law organization that advocates religious liberty, and River Strategies, but I doubt personally that their intransigence is strategically wise. Inasmuch as any politically viable deal would need to benefit both sides, it would need to include anti-discrimination protections for gay people, because the culture is growing more pro-gay and more anti-discrimination by the day. When religious activists and politicians will out any such protections and in fact try to preemptively block or revoke protections for gay people, they effectively adopt the Palestinian bargaining strategy of waiting for a worse deal. Here, though, the story gets complicated. Many of the religious side's objections to anti-discrimination laws strike me as misguided. The view that homosexuality involves behavior rather than just an intrinsic characteristic — well, so does religion, which is protected. The idea that discrimination is an act of compassion toward gay people — it sure doesn't feel that way. Or that observing a law entails endorsing it — in which case, why do Catholic bakers cater second marriages without a peep? One point, though, needs more thought. It goes like this: anti-discrimination laws establish sexual orientation as a protected category like race. When such laws gain wide adoption and acceptance, those whose religious beliefs distinguish more or morally or theologically between homosexuality and heterosexuality will be treated in law and also in society as being like racists. Religion, or at least some of the core religious teachings, will become the moral equivalent of racism. And once that happens, religious observance will be relentlessly hounded from the public square as racism has been. Well, that's a challenging argument. It's grounded in assumptions not about gay rights per se but about non-discrimination. In effect, it says this: in today's America, non-discrimination is not a slippery slope but a slippery cliff, an all-or-nothing proposition. So we can't budge an inch toward protecting LGBT people from discrimination without losing everything, even if we wish we could. In yet other words, the claim here is that, like it or not, non-discrimination has become a social principle that militates against compromise. Alas, it is not just one side of the debate that believes this. On the gay side, there has been something of a parallel evolution, and it's not something I feel happy about. Six years ago, in the prominent gay monthly The Advocate, I published an essay arguing for a conciliatory approach. 'The smart approach,' I said, 'is to bend toward accommodation, not away from it, whenever we can live with the cost.' I argued from legal strategy, saying that the First Amendment and religious liberties are bad issues to get on the wrong side of. I argued from political strategy, saying that reasonable accommodations will hasten public acceptance of LGBT equality at an acceptable and rapidly declining cost to gay people. Above all, I argued for morality. I said the real point of the gay rights movement is not just to secure equality for homosexuals; it is to maximize all Americans' freedom to be true to themselves, the freedom that we were denied. The last thing a movement of former pariahs should seek is to inflict the same agony on someone else. For those reasons, I said, reasonable religious accommodations are something we should embrace as a cause, not resent as a concession. And at the time, I got a hearing. But that door, which was never more than just ajar, has closed. The strong consensus today in the LGBT world is that religious accommodations are a license to discriminate and are by their very nature a concession. The game we're playing now is increasingly zero-sum. It has become quite hard — not by any means impossible, but quite hard — for leaders in the LGBTQ world to accept a compromise on religious accommodations, even if the compromise involves significant new protections for LGBT people. One reason is a tactical calculation that victory will eventually fall into our laps via culture and the courts, so why negotiate? The answer to that question, I think, is that negotiating will get gay and lesbian, bi and transgender Americans protected faster than by waiting around, and with broader social buy-in, which really matters if the goal is to diminish discriminatory behaviors and attitudes. Moreover, even if you see religious accommodations as concessions, they're affordable concessions. Outside of religious institutions and organizations that are at the very core of the First Amendment, there just aren't very many landlords and schools and places of business that want to discriminate, and the number is declining by the day. Here, however, is the problem: that kind of conversation about cost and benefit and political strategy becomes irrelevant when an absolutist mindset sets in. We saw that mentality on display not long ago when equality-minded activists — many of them, by the way, non-gay — demanded and got the firing of Mozilla's chief executive, Brendan Eich, on the grounds that six years earlier he had contributed $1,000 to California's 2008 anti-gay marriage initiative. Though the activists were of course entirely within their legal rights, I was among the many gay marriage supporters, gay and non-gay, who found the spirit of this anti-Brendan Eich campaign worryingly intolerant, given our own historical role as victims of majoritarian repression — repression which was cultural as well as legal. LGBT people should be wary of joining or abetting campaigns to enforce moral conformity. Now, I can't deny the presence of an absolutist, moralistic strain in gay rights activism. I'm not even sure it's a bad thing. Activists are in the business of being true believers, and morality is in the business of making universalist claims. Most gay and gay-friendly people believe that opposition to same-sex marriage or to LGBT anti-discrimination protection is intellectually and morally indefensible. So why shouldn't gay rights activism reflect that view? It's possible to believe you're morally right, though, and still want to get along with your friends and neighbors in a pluralistic society. The urge toward moral intolerance may be strong, but the urge toward social or legal intolerance does not necessarily follow. And most gay people, I think, are not by inclination intolerant, including of religion. Remember, many of us are religious, and most of us grew up in religious households, and all of us have religious friends and loved ones. Like all Americans, we both desire and manage to get along with many people with whom we disagree, even on moral issues. So what's driving the hardening of attitudes in the LGBT world toward claims of religious liberty? Partly the hardball tactics of the other side, as I've already mentioned. The people driving efforts like FADA and the Indiana, North Carolina, and Mississippi legislation could not do a better job of seeming hostile and uncompromising. Also, however, I believe that many LGBT people who are temperamentally inclined toward conciliation have concluded that the principles of non-discrimination give them no room for flexibility — precisely the same conclusion which many of their religious rights counterparts have reached. The peculiar result is that many, though not all, gay rights advocates and many, though not all, religious rights advocates, while disagreeing about everything else, join in a concurrence that, like it or not, the logic of non-discrimination brooks no compromise, even if compromise is desired by both sides. Why should this be so? The reason, I think, or at least an important reason, is that both sides are applying — or I would say misapplying — the lessons of the granddaddy of civil rights struggles, that of African Americans. Discrimination is a dirty word in America, and it should be. No one, I hope, needs to be told today how legal and cultural discrimination oppressed, abused, and terrorized African Americans for many, many years. So pervasive and evil was the regime of racial discrimination that rooting it out required the legal and cultural equivalent of overwhelming force, putting the whole country through a necessary and just but traumatic upheaval whose effects echo through our politics to this day. Culturally, what the country learned from the civil rights movement is that discrimination is everywhere and always wrong, and therefore must be everywhere and always illegal and unacceptable. In the race paradigm, discrimination cannot just be minimized; it must be eradicated. Every diner, drinking fountain, and swimming pool that's open to the public must be open to blacks. In practice, after all, any lesser standard was exploited by racists as a tool of Jim Crow. And in principle, the very existence of discrimination debased African American dignity. If any middle ground was ever possible in that struggle, whites' massive resistance blew it away. The oppression of black Americans is, I believe, historically and morally unique, and thank goodness there is no other stain like it. But that said, the persecution inflicted on gay Americans was very severe in its own way. Gay people were terrorized on the streets and in schools, fired from our jobs, banned from the government and military service. Psychiatrists called us sick, politicians called us subversive, and preachers called us a stench in God's nostrils. Our bars and churches were vandalized and burned. Our children were taken away, and police, instead of protecting us, entrapped us for sport. As recently as 2003, in multiple states, we were deemed criminals for loving each other in our own homes. Emotionally, gay people and our equality-minded allies have reason to reach instinctively for the black civil rights model for inspiration, and that is what many of us have done. When I suggest religious accommodations, very often the reply I get from my LGBT and progressive friends is something like this: 'Well, we wouldn't give racists the right to kick black people out of their store, would we?' In the LGBT world, this comparison to racism is often perceived as a trump card, a conversation-ender. For many LGBT people, settling for equality so to speak is in and of itself a form of discrimination. So the only religious accommodations they'll even discuss are ones that apply in equal force and in the same way to race. To my friends and allies in the gay rights movement, I've argued that the black civil rights model is in fact not a great fit for us, and that equating opposition to same-sex marriage with racism is especially problematic. I cannot say that I've made huge headway. Maybe this is not even a good argument for me to win. Maybe massively overdeterring anything that looks remotely like discrimination is the price we paid for the magnitude of America's crimes against African Americans, and maybe it's also the way that we forestall other such crimes in the future. Maybe. Here, though, I want to pause for thought, because overdeterrence, if that's what's happening, comes at a high social and political cost of marginalizing and delegitimizing compromise, exception, accommodation, and the normal variation in practice and preferences which inhere in a pluralistic society. And that is not true just where LGBT rights are at issue, but wherever anti-discrimination law or public morality follows a context-blind, zero-tolerance approach. In particular, a zero-tolerance non-discrimination model militates against the balancing of interests in the courts and in the legislative process, because allowing even a narrow license to discriminate is seen as eviscerating the entire principle of non-discrimination. Zero tolerance is also blind to diversity of community preferences and precludes geographic variations, so Texas and Massachusetts have to have the same rules, virtually guaranteeing a bad fit for one place or the other, or more likely both. Zero tolerance also disallows comparing costs with benefits, weighing relative harms, and taking into account the particular structure of local markets. The effect of a Christian baker's refusal to cater a same-sex wedding is very different in a small rural community where there are no other bakeries than in a large city where bakeries are numerous. When regulating antitrust and price discrimination, we always look at the marketplace context in deciding whether to allow a commercial practice, and we reason that diversity of practice and pricing is a good thing so long as the customer has plenty of choices. Zero tolerance, by contrast, militates against diversity. If even one of hundreds of bakers wants to adhere to idiosyncratic religious views by discriminating, that one is still one too many. At some level, there is an abiding irony in gay rights activists arguing against diversity, but that is where the absolutist non-discrimination model leads logically, albeit not necessarily politically. It points to the denial of government funds and student loan dollars to religious universities that teach that homosexuality is wrong. California's legislature recently entertained, though fortunately dropped, a bill to do just that. Asking the Obergefell arguments: if a pro-gay marriage decision might lead to the withdrawal of tax-exempt status from schools that opposed same-sex marriage, Donald Verrilli, the US Solicitor General, famously replied, 'It's certainly going to be an issue. I don't deny that.' He was talking not about the ultimate political outcome, which depends on many factors and about which I make no prediction, but he was talking about the logic of non-discrimination as widely interpreted by progressives and conservatives alike. That absolutist logic, left to its own devices and allowed to play itself out, pushes social conciliation out of reach. But here's the thing: the zero-tolerance interpretation is wrong. It has always been wrong from day one. As in The Wizard of Oz, the solution is right here under our nose and has been all the while. In point of fact, the landmark civil rights bills which broke the back of racial segregation in the 1960s were not absolutist. They provided exemptions for religious organizations. They exempted Mrs. Murphy, the landlady renting a room in her own house. At the time, civil rights advocates in Congress made the pragmatic argument that exemptions were needed to pass the bill, but they also made a politically principled argument that exceptions would increase social comfort with the legislation while still covering the vast majority of cases — a trade they deemed worth making and which proved to be wise in hindsight. So not even in those days, a time of genuine social emergency, did we rise up and say 'no discrimination ever.' Since then, discrimination law has been enacted in countless jurisdictions and, as interpreted by the courts, is nothing like as absolutist as discrimination law as interpreted by today's activists and by the popular culture. The real version looks very, very different from the full version. Employment discrimination law offers exemptions for bona fide occupational qualifications, a conceptually elastic category which has proved in practice very workable. State and federal discrimination laws, as written and as judicially interpreted, and as further inflected by RFRA and its non-federal equivalents, are shot through with religious exemptions, most of which are so uncontroversial that only a few specialists even know they exist. Age discrimination rules allow pension plans to treat old people differently from young people — how could they not? Sex discrimination rules allow single-sex elementary and secondary schools. Sexual orientation laws, where they've been enacted legislatively, invariably include religious carve-outs as a rule. And then there's disability discrimination law, which is one immense tangle of exceptions because its 'reasonable accommodation' standard is entirely contextual. What is reasonable? Well, it depends. When the Americans with Disabilities Act was passed in 1990, I thought it would be a bottomless pit of litigation and expense precisely because of uncertainty over how you define a reasonable accommodation. But in practice, it's proved to be surprisingly stable, affordable, and uncontroversial. It works. And in general, for every accommodation and exception which sparks a public argument like Hobby Lobby, there are thousands and thousands which no one even notices. In fact, if you'll indulge me in a paradox, the pop-culture ideal of zero-tolerance non-discrimination is possible only because of the underlying reality of ubiquitous accommodation. My friend Walter Olson, a senior fellow at the Cato Institute who helped me in preparing this talk, says, and I quote, 'The world would fall apart if you tried to pursue the logic of racial discrimination into all of the other areas.' And he's right. If Americans actually practiced non-discrimination remotely as inflexibly as we preach it, the whole edifice would collapse. Thus, in reality, zero tolerance for discrimination is not the rule; it is more like the opposite of the rule. In practice, Americans have come to observe an informal spectrum of anti-discrimination models. Socially, though not always legally, race comes close to no exceptions. The circumstances in which a court or the public will accept race as, say, a bona fide job qualification or accept race as grounds for a religious exemption are vanishingly rare. Where the law still does allow discrimination, few Americans will avail themselves of it. Mrs. Murphy still has the legal right to refuse her basement room to African American renters, but nowadays she's probably a sociopath if she tries to exercise that right. Where non-discrimination is concerned, race is in a class by itself. But ethnicity also admits a relatively few contextual exceptions. Age and religion seem to be in a middle range in which more exceptions are allowed. Sexual orientation and gender identity, although still in flux, are probably somewhere in this same middle range. Then disability discrimination, as I've already noted, is contextual all the way through. Now, it's important to note that what I've just described is a spectrum, not a hierarchy. It does not rank anti-discrimination rules from better or stronger at the race end to worse or weaker at the disability end. It also does not rank the social importance of various groups or the validity of their non-discrimination claims. It is not a non-discrimination Olympics in which blacks get the gold and gays or the disabled have to settle for silver or bronze. Rather, the spectrum reflects the natural diversity of needs, situations, and histories of groups seeking protection, and the diversity of social contexts in which they are embedded. What I'm suggesting, then, is that when religious conservatives and gay-friendly progressives say non-discrimination protections force them to forswear social compromise, they occupy a prison of their own making. By embracing a mythical version of non-discrimination in which race is the master template and exceptions always weaken the underlying principle, they locked themselves and each other into unnecessary and escalating conflict, with the likely result that LGBT people miss opportunities to obtain anti-discrimination protections and religious people miss opportunities to obtain safe harbors. The moment one drops the fallacious and counterproductive presumption that non-discrimination is inherently a no-compromise value, all kinds of compromises become at least in principle reasonable and viable, even in the commercial sphere. Today, the most controversial category: what might you do about a Christian-owned business, for example, that wants to refuse service to same-sex weddings? Lots of things. You could provide a mom-and-pop exception for businesses below a certain size. You could define an exempt category of religious-based enterprises. You could define an exempt category of expressive enterprises. You could allow accommodations if they're arranged so as to cause no serious inconvenience or dignitary shock to the customer. You could bar commercial discrimination while allowing businesses to express a preference not to serve same-sex weddings. You could do many other things. Such options are not mutually exclusive; they can be mixed and matched. Nor is there any reason for every area to adopt the same approach. Within reason, accommodations and exemptions can and should look different in different places. I would remind my LGBT friends that even a fairly wide range of exemptions would offer much more protection to us than the status quo, in which 29 states offer us zero protection. The point is not that any particular kind of compromise or accommodation is politically easy or philosophically perfect. This is hard to do. The point, however, is that there is plenty to talk about once we cast aside the zero-tolerance paradigm and acknowledge that context and flexibility occupy hallowed and honored places in anti-discrimination policy, and have since day one. We can get away from the slippery cliff, from all-or-nothingism, and from the foreclosure of compromise, and we can start talking about win-win instead of win-lose, or in practice lose-lose. As I've said, the question I'm raising is not about gay rights really, nor is it about religious liberty really. It's about two interpretations of the modern 11th commandment, which is 'Thou shalt not discriminate.' It frames a choice between an absolutist interpretation, which is based on myth and impels us toward conflict, and a pluralistic interpretation, which is reality-based and invites us toward compromise. I guess it's obvious which one I prefer. In the current moment, it seems to me the gay rights/religious liberty conflict is playing a role something like that of the proverbial canary in the mine shaft. What we'll find out in the course of the next several years, as the conflict plays out, is which interpretation of non-discrimination our politics and culture are driving us toward. In one future, the Equality Act and the First Amendment Defense Act and their state and local equivalents are opening bids in negotiations which ultimately produce compromises enhancing both the fairness and the flexibility and the reach of non-discrimination law. In another future, a very different future, negotiations never start, or they fail for lack of support, and both sides dig in for an existential battle — not just between LGBT advocates and religious people, but more scarily also between the moral principle of non-discrimination and the social imperative of conciliation. Both futures have implications beyond the arguments at hand. The flexible version of non-discrimination, I expect, offers significantly less social resistance and therefore more political hope to future claimants, such as transgender people. It also helps legitimize and sustain flexibility in existing non-discrimination law, which is a good thing if we want that law to succeed and endure. On the other hand, the all-or-nothing version makes non-discrimination seem inherently — not just incidentally — threatening to all manner of dissidents, not just religious ones, and so it seems certain to ignite and inflame moral conflict down the road. So this is not just a decision about gay people or religious people. It's a decision about how much play we will allow in the democratic joints of our society, and whether we can interpret America's core principles in a way that honors and celebrates America's characteristic pragmatism and diversity. Thank you.