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The authors' goal in this chapter is to surface some of the commonalities between belief liberty and identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. She first wants to make transparent the conflict that she believes exists between laws intended to protect the liberty of lesbian, gay, bisexual, and transgender (LGBT) people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. The author believes those who advocate for LGBT equality have downplayed the impact of such laws on some people's religious beliefs and, equally, she believes those who have sought religious exemptions from such civil rights laws have downplayed the impact that such exemptions would have on LGBT people.

Second, the author wants to suggest that the best framework for dealing with this conflict is to analyze religious people's claims as belief liberty interests under the Due Process Clauses of the Fifth and Fourteenth Amendments, rather than as free exercise claims under the First Amendment. There were important historical reasons for including the First Amendment in our Constitution, with its dual Free Exercise and Establishment Clauses. But the First Amendment should not be understood as the sole source of protection for religious people when the claims such individuals raise also implicate the type of liberty interests that should legitimately be considered under the Due Process Clauses of our Constitution.

The authors' argument in this chapter is that intellectual coherence and ethical integrity demand that we acknowledge that civil rights laws can burden an individual's belief liberty interest when the conduct demanded by these laws burdens an individual's core beliefs, whether such beliefs are religiously or secularly based. Acknowledging that these liberty interests exist and can be burdened by civil rights laws does not necessarily mean that such laws will be invalidated or that exemptions from the law will always be granted to individuals holding such beliefs. Rather, as she hopes to demonstrate below, Justice Souter's concurrence in Washington v. Glucksberg offers us a useful approach for engaging in an appropriate substantive due process analysis that provides us with a means of seriously considering the liberty interest at stake without necessarily invalidating the law burdening that interest.

Finally, the author offers her own assessment of how these conflicts might be resolved in our democratic system. She has no illusions that either LGBT rights advocates or religious freedom advocates will decide that she has offered the correct resolution. The authors primary goal in this chapter is simply to argue that this conflict needs to be acknowledged in a respectful manner by both sides, and then addressed through the legislative processes of our democratic system. Whether the authors particular resolution is ultimately accepted feels less important to her than helping to foster a fruitful conversation about possible resolutions.


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Publication Citation

Chai R. Feldblum, Moral Conflict and Conflicting Liberties, in SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS 123-156 (Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson eds., Lanham, M.D.: Rowman & Littlefield Publishers, Inc. 2008)