Andrew Koppelman (Northwestern University School of Law) has posted The Joys of Mutual Contempt (Chapter 9 in: Religious Freedom, LGBT Rights and the Prospects for Common Ground, (William N. Eskridge & Robin Fretwell Wilson 2018)) on SSRN. Here is the abstract:
A crucial question, in judging any claim for religious exemption, is whether granting it would defeat the purposes of the law. Antidiscrimination law aims to remedy the aggregate effects of pervasive discrimination, not individual injuries. If gay people are generally protected against discrimination, a few outliers won’t matter. Treating discrimination as equivalent to violence against the person, or regarding the pertinent attitudes as contaminants that must be eradicated, confuses the issue. Religious Freedom Restoration Acts are so vague that each side of the controversy has some basis for focusing on its worst case scenario. Any compromise should enact rules rather than standards, for instance exempting businesses of five or fewer employees, or married student housing in religious colleges. Law cannot and should not try to eradicate the idea that homosexual conduct is inherently worthless and harmful. It is too deeply ingrained in religious views that large numbers of Americans hold. It involves theological questions that are none of the state’s business.