Nate writes: “I think, however, it is also possible that once it becomes clear that priorities on gay marriage and antidiscrimination laws are not threatened that progressive hostility to religious freedom will wane. I don’t know if this is the case, but it seems possible that really there is nothing deeper going on here than gay marriage and antidiscrimination laws.”
I see things a bit differently. But at least part of the difference may be the result of definitional uncertainties. I’m not sure what Nate means to include within the compass of antidiscrimination laws. I’m more certain of the sorts of harms to personal dignity that antidiscrimination scholars do see at the heart of those laws. And I’m even more certain of what Nate rightly describes as the ambitions of Justice Kennedy, especially in the jurisprudence of dignity that has animated his opinions over the last 25 years or so (from substantive due process all the way to state sovereign immunity). As I put it in this essay (footnotes omitted):
The issue of symbolic or “dignitarian” harm is particularly problematic. If perceived affronts or injuries to one’s personal dignity constitute a “significant” or “material” harm to a third party, then it is difficult to see how many permissive religious accommodations could survive. Laws reflect morally and politically charged messages. Whether the subject is education, public health, drugs, sexuality, commerce, prisons, insurance, the environment, or the military, laws embody particular moral convictions and impose, even if tacitly, particular moral views on those subject to them. Religious accommodations are decisions by the government to permit limited dissent from these moral messages. In accommodating religious objectors, the state might be perceived not merely to authorize limited disagreement with the law, but to countenance disrespect for the moral views underlying it or even for the moral dignity of those who are its intended beneficiaries. But if the state comes to have powerful legal interests in remedying symbolic or dignitarian offenses, then that may well render many permissive religious accommodations illegal….
A leading antidiscrimination scholar has likewise noted that the prevention of harms to “dignity” and the stigmatization of discrimination are two of the three “canonical” functions of antidiscrimination laws generally. Religious accommodations, it is said, have the power to “stigmatize and demean” those who disagree with the religious claimant’s dissenting position on these matters, even when such objections are “not stated explicitly.” The feeling of being “judged” by those who raise religious objections to certain conduct, and the indignity of knowing that the state has countenanced that judgment by permitting a religious accommodation, may themselves be independent harms….
The government’s vindication of third-party dignitary harms has the potential to destroy religious accommodation. The core function of religious accommodations, again, is to authorize limited, but sometimes socially powerful and politically controversial, dissent from the law’s moral messages. There is an important difference between dissent from a law’s moral message and the denigration or vilification of the law’s intended beneficiaries. “Hate the sin, love the sinner,” is the Christian aphorism sometimes used to express this distinction, but it has proved elusive and generally unpersuasive (or worse) to those whose dignity is felt to be injured by claims for religious accommodations. A government that assumes the power to confer dignity on individuals may also subject itself to legal claims by individuals whose dignity has been harmed as the deprivation of an entitlement. And there is reason to worry that the legal conferral of dignity is expanding, as the Supreme Court increasingly justifies its constitutional jurisprudence based on ever-thickening concepts of human dignity. Lurking just beneath these dignitarian clashes are bottomless mysteries concerning the foundations of human identity—religion or sex? higher duty or worldly satisfaction?—that, one may anxiously hope, neither the Supreme Court nor any other government institution will ever assume the power to resolve.
Perhaps in the end the issue is not so much “progressive skepticism” toward religious freedom as “progressive aspirations” for antidiscrimination law–not the winning back of progressives to the cause of religious liberty (or even to its toleration), but the damage to religious liberty that the ever-expanding scope of antidiscrimination law portends.