Nan D. Hunter (Georgetown University Law Center) has posted Pluralism and its Perils: Navigating the Tension between Gay Rights and Religious Expression on SSRN. Here is the abstract:
The conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake.
The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the values of learning things undecided, while real, may be outweighed by lost opportunities for advancing principles that also foster respect for competing norms and promote affirmative values rather than simple suppression of conflict. In particular, the article argues for adoption of three premises, all of which contribute new insights to this continuing debate: that obedience to antidiscrimination law is not inherently expressive; that disagreement with antidiscrimination law must be fully protected; and that the framing of antidiscrimination norms should be de-moralized.
Some scholars believe that pluralism requires treating religious authority as equivalent to law. This article argues that, in situations such as the Georgetown case, when seemingly irreconcilable value systems collide, the proper role of courts in a pluralistic democracy is to provide the secular authority that ultimately resolves such a case, if not the volatile cultural dispute underlying it.