Conflict over control of the public space to promote one form of identity over another is as old as our Republic. The desire for such control is the birthplace of totalitarianism whether it comes from progressive or conservative political forces.
A series of cases related to religious freedom have recently come before the Supreme Court. The details of each case vary, and the Robert's Court has chosen to rule on fairly narrow aspects of the law. This leaves an unresolved tension between claims to religious freedom and demands for non-discrimination.
LGBTQ+ Individuals are claiming a right to participate in private sector programs and to purchase goods and services without discrimination against their identity and the ways they express it. Other individuals and groups are claiming that allowing or facilitating LGBTQ+ participation in their programs, or purchase of their goods and services, involves them directly in behavior to which they have a strong moral objection based on religious teaching.
Note that it is behavior and activity to which there is a moral objection, not LGBTQ+ individuals themselves. In the recent case of Fulton v. Philadelphia, Catholic Social Services did not claim a right to discriminate against LGBTQ+ individuals. It claimed that "CSS holds the religious belief that marriage is a sacred bond between a man and a woman. Because CSS believes that certification of prospective foster families is an endorsement of their relationships, it will not certify unmarried couples—regardless of their sexual orientation—or same-sex married couples."
It is the relationship, not the individual, that CSS could not in good conscience affirm. Similarly in a case the Supreme Court declined to hear today (July 2nd, 2021) there was no question that the florist who filed suit had worked with LGBTQ+ persons for decades. Her objection was to flowers for a same-sex wedding. In this case the court's refusal to consider the case let stand a ruling against her in a lower court.
What is at stake in these cases is whether individuals and groups can be compelled by law to participate in activities, behaviors, or relationships they find morally objectionable, or whether the constitutional guarantees of freedom of religion and expression allow them to decline such involvement. This makes the problem different from that of discrimination based on ethnicity, gender, religion or political beliefs. The individuals aren't being excluded on the basis of who they are, but on the basis of what they are doing.
Except that it isn't that simple.
There are two ways to look at human identity. The older of these ways understands identity as a given no matter how the individual acts. A person's sex, family, ethnicity, gender, religion, and even political affiliations are a primal part of who they are and cannot be changed. Withdrawal from society, whether in the form of a Hindu Sadhu, Christian monk or nun, or Buddhist bhikkhu was the only alternative to accepting one's identity.
In the modern world we have come to see identity not as a given, but as something that individuals choose to enact. You can take action to change your family, your ethnicity, your sex, your gender, your religion and your political affiliations. Modern identity, the modern sense of self, is created through action. A person creates themselves; writing through their actions an autobiographical narrative of who they are as they go along.
In the West the shift from identity as a given to identity as something enacted began in the early modern era. Changing religious identity was revolutionary 500 years ago and could engender violent responses, but it came to be accepted as a basic human right. During the birth of the United States changing political affiliation became an accepted part of changing identity, and again a basic human right. And Europeans migrating to the US enacted changes in their national and even ethnic identities to adopt the new identity: American.
Now in the 20th and 21st centuries there is an acceleration of this movement from given identity to enacted identity. This acceleration has been accompanied by broadening those aspects of identity that can be enacted rather than being a given. This is particularly the case with sex, gender, and sexuality. Aspects of the self that many people still regard as immutable are becoming more and more widely accepted as a matter of choice being put into action.
Recognizing this clarifies the conflicts that are now unfolding. In the modern world religious identity is an identity that must be enacted. One cannot just be a Christian, Muslim, Jew, Hindu, or Buddhist. One must act out the beliefs and practices of these religions. Now this centuries old understanding of religious identity is claimed in relation to sexual identity. Whatever the biological and psychological components, sexual identity is no longer understood as a given. It is a chosen way of living out one's relationships in public life. And that includes marriages, adoptions, and even transitioning parties.
What is unfolding in the US is that Roman Catholics and conservative Protestants are maintaining that while religion is a properly enacted identity, sex and sexuality are a given identity; fixed by God. There may be deviations, but no acceptable exceptions. As a result the claim that religious identity must be enacted directly conflicts the claim that the same is true of sexual identity.
In a diverse society the possibilities for conflict are thus nearly endless. For a baker to enact his religious identity he cannot offer a service to a person who needs that service to enact their sexual identity. For one doctor participating in an abortion is murder, while for another it may be a moral obligation. And either may work in an institutional setting that whose desire to freely enact its moral understanding conflicts with that of the physician.
The only reason we don't have constant conflict over enacted identities is because in general individuals and groups can choose from multiple providers of services and simply choose to take their business and needs to someone who has no objection to fulfilling them. In a society where almost every service is available from a corporation whose only identity is enacted by making money it isn't hard to find almost any service one might desire.
And yet there are many for whom this is not satisfactory. Many people simply don't have access to a diversity of choices. In many parts of the US there don't exist a variety of tailors, bakers, hospitals, florists, adoption agencies and so on.
Second, having long been marginalized LGBTQ+ persons do not wish to merely enact their identity somewhere in public (probably on the margins.) They want to be able to enact their identity always and everywhere in public. They don't want to be accepted in the sexuality in a big city but not their rural home town. Anything less than total acceptance is just another form or marginalization.
But of course the same thing is true of those who wish to enact their religiously based moral standards. They don't want to be forced from the public realm by demands that they act against their religious convictions. That is also marginalization.
A truly diverse society cannot offer either those enacting their religious identities or those enacting other forms of identity what they want. A diversity of conflicting ways of enacting identity, including sexual and religious identity, cannot be realized simultaneously in every place or relationship. Demanding that one type of identity take precedence over others in public simply shifts the locus of marginalization from one group to another.
This is essentially what is happening in the cases coming before the Supreme Court. The demand is being made that identities related to enacting different forms of human sexuality take precedence over enacting of religious identities, or visa versa. If it passes, anti-discrimination legislation before Congress will ultimately generate a precedence of sexual identity over religious identity, although it is more likely to generate endless litigation than open the public space to diverse identities. Even if the legislation passes, the Constitution will continue to be a battleground for contention over discrimination in the realm of enacted identities.
But legislation isn't just initiated by LGBTQ+ progressives seeking relief from discrimination. Social conservatives have, at a state level, legislated to discriminate against LBGTQ+ persons. Laws outlawing use of bathrooms by transgender persons, forbidding changes in legal sexual identity by those who transition, and in particular banning abortion are all thinly veiled efforts to write religious doctrine into law while pushing any who can't live within those constraints to the margins of society.
Conflict over control of the public space to promote one form of identity over another is as old as our Republic, so there is no excuse for not knowing that it is both futile and oppressive. It is the birthplace of totalitarianism whether it comes from progressive or conservative political forces.
The public space can accommodate the actual diversity of society only when the members of that society are willing to give up their individual or group claims to dominate the whole public space in order to make room for everyone in at least most of the public space.
If all insist on dominating everywhere then eventually our society will face two choices. It can self-destruct through a withdrawal into self-affirming private enclaves. Or it can effect a takeover of the public space by a government with a commitment only to maintaining its power. We can withdraw into fenced and barricaded communities with an empty public square. Or we can lapse into a totalitarianism that discriminates against everyone. We need not look too far historically and geographically to see what happens to societies in which either of these has occurred.
