The War Within

Abstract

The ‘culture war’ paradigm has come to dominate the legal discourse on conflicts between religious liberty and sexual and LGBTQ equality. Despite its political relevance, this paradigm is problematic as applied to the broad universe of conflicts between religion and equality. As a result, legal discourse frequently misconceives religion as monolithically oppositional to equality, constantly seeking more ground, and without values in common with its challengers. This article argues for a modified framework that acknowledges the war that occurs within religion regarding equality challenges. Drawing on qualitative and experimental evidence from the United States and Israel and on cases from a range of countries and contexts, the article finds that conservative religious groups struggle between opposing perceived sexual nonconformity and tolerating it, and that their resolution of this struggle varies in systematic and predictable ways. Specifically, the article identifies the practice of ‘social impact regulation,’ whereby religious decision-makers selectively apply and enforce religious norms based on the perceived impact of sexual nonconformity on the community and the social status of the religious norm. The article discusses the consequences of this practice, demonstrates its breadth, and explores its implications for the culture war paradigm, for legal doctrine, and for the negotiation of conflicts between law and religion. Ultimately, the reality of the war within religion presents both challenges and opportunities for law.