11/20/2012 06:48 pm ET Updated Feb 02, 2016

The Way Forward When Equality Clashes with Religious Expression

One of the little-remarked circumstances of the recent general election, a "dog that didn't bark," was the complete absence of religion as a test for the office of the president. While fundamentalist Protestants hammered Romney's Mormonism during the primary, the Democrats did not. And Romney managed fewer Mormon votes than did Bush in 2004! This decision to reject any religious test for office is another example of President Obama's leadership on civil rights, religious liberty being the oldest American right and the motive force for many Europeans in the settling of the Americas.

This issue of religious liberty, however, is the field on which future battles for LGBT freedom and equality will be fought. This isn't new - I recall some aborted attempts during our defense of the Montgomery County gender identity civil rights law in 2008 - and it is now picking up steam. This is happening for the simple reason that earlier approaches have, by now, utterly failed. First, all the Biblical "abominations" have lost any influence on an increasingly secular populace. Then, the psychiatric labels of "deviant" and "pervert" were undermined by the removal of homosexuality in 1973 and gender identity disorder in 2011, from the "Psychiatric Bible," the DSM. Finally, the arguments against gay couples actually being a family, raising children, or gay persons being able to serve in the military like their straight counterparts, have fallen on deaf ears as well, exemplified by the conversion to the side of equality of David Blankenhorn, president and founder of the Institute for American Values. He was the lead - and only - expert witness for the Prop 8 forces in the recent California federal circuit court trial, Perry v Schwarzenegger. What remains is the argument for religious liberty.

It can be argued that the battle for LGBT freedom is nothing more than the most recent reincarnation of the religious cold war that has been woven into the tapestry of American life from its beginnings. This religious war was originally fought between believers in Biblical literalism - the fundamentalists - and believers in religious essentialism - the mainstream Christian denominations. Beginning within the Protestant community - Baptists, Methodists, Presbyterians - Catholics and Jews later joined in the fray, and the war heated up over the issue of slavery, manifested most horrifically during the Civil War. While secular Americans are by no means free of prejudice, today the most vicious homophobic attacks come from the fundamentalist evangelical communities. It is possible to vigorously argue that a critical constitutional protection is inherent in this battle - the right to the free exercise of religion. That this is balanced by the equally fundamental American value of equality, embedded in the Declaration of Independence, makes it no less powerful, and the upcoming battles no less potentially explosive.

So what happens when an irresistible force - the core value of equality - meets an immovable object - religious freedom? Beyond providing exciting theater for constitutional scholars and lovers of such drama, proponents of both sides stand to lose a great deal. After all, when two fundamental values collide in a winner-take-all scenario, one side wins and the other loses. Even if the winners and losers change places in any given case, the overall outcome will probably be a draw. Both sides will end up bloody in the end.

Since the Constitution provides no resolution to the tension between these principles, what then can we do? For starters, we in the LGBT community can embrace the reality that two basic American forces are in conflict. This is not inherently a bad thing; such tensions keep this country dynamic, allowing organic growth while preventing absolutism. Such humility may signal to the opposition, especially in the context of the recent election, that an absolutist, purist position against equality is not in the best interest of committed religious believers. In other words, tolerance for the opposing position may create a playing field where stigmatization and the impugning of bad faith play lesser roles, and a respect for our core systems can create the opportunity for mature negotiation.

My experience at the Kennedy School of Government at Harvard four years ago bears this out. At that time we were four years out from the Bush election, when eleven constitutional amendments had been passed banning marriage equality. Such homophobia was widely regarded as a critical wedge issue for the Republican victory, and was heralded by some as the beginning of a conservative century. Yet that summer several of my gay classmates and I were able to work out a hypothetical accommodation with some Christian evangelical classmates to allow for marriage equality, by clarifying the difference between secular and sacred marriage.

Today that distinction has been successfully used in the most recent marriage equality victories, most evident in Maryland's law, the Civil Marriage and Religious Freedom Protection Act. For the gay community there was little reluctance to reiterating the principle of religious freedom, and for the communities of faith there was a sense of accomplishment in expanding the American dream while holding true to core religious principles.

This approach also allows us to engage with those whom we have long thought of as forever unreachable, our fiercest adversaries. Both sides accepting the inevitability of some loss will allow for the competing goods of freedom and equality to be engaged and finally reconciled. I have long believed that no one is beyond education and understanding; now, at our moment of greatest success, it may be time to expand the pool of future allies. Meeting them where they live, in their language, with patience and respect, offers us all the chance to make this country a more perfect union.