Sexuality, Third-Party Harms, and the “Live-and-Let-Live” Approach to Religious Exemptions

Abstract

For several years now, a group of prominent religious liberty scholars in the United States have been defending what they call a “live-and-let-live” approach to accommodating religious dissent in the era of marriage equality. The proposed approach calls on the state to avoid taking sides on contested moral issues when individuals of faith claim that their religious beliefs require them to refrain from facilitating marriages by same-sex couples. The objective, it is argued, is to adopt policies that allow both sides to live according to their values. This article critiques the “live-and-let-live” solution to religious exemptions from LGBT (lesbian, gay, bisexual, and transgender) equality measures by focusing on questions of harms. It argues that the proposed approach calls for a weighing of harms that is largely unprecedented in the history of American antidiscrimination law and problematic in its own right. The article also explains that the approach is premised on questionable assumptions and predictions about the absence of any meaningful harm to LGBT individuals when business owners provide goods and services to the general public, but refuse to do so for same-sex couples on religious grounds.