Deliberative Communitarianism: a “Both-And” Solution to the Growing Conflict Between the Religious Right and LGBTQ Rights
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This article uses American law as a framework for discussing a jurisprudence that seeks to express equal concern towards the competing claims of religious freedom and sexual autonomy. It has three main parts. In part I, this articles tries to define the rights at issue in the cultural war between the religious right and LGBTQ advocates, with particular attention to the distinction US jurisprudence creates between the absolute right to embrace a religious or sexual identity and the more contingent right to enact those identities in social spaces and have them accorded social recognition. Part II argues that the adoption by US courts of a contingent rights paradigm has created vulnerabilities on both sides of the culture war, raising the stakes of rights jurisprudence and making the social recognition of each group dependent on the marginalization of the competing group. In part III, this article proposes a deliberative communitarian approach to balancing the claims of religious and LGBTQ groups as an alternative to the individual rights approach of the US. It uses the KCC decisions in the conscientious objector and military sodomy cases to explore how this alternative could be implemented in practice in Korea.
Abstract
This article uses American law as a framework for discussing a jurisprudence that seeks to express equal concern towards the competing claims of religious freedom and sexual autonomy. It has three main parts. In part I, this articles tries to define the rights at issue in the cultural war between the religious right and LGBTQ advocates, with particular attention to the distinction US jurisprudence creates between the absolute right to embrace a religious or sexual identity and the more contingent right to enact those identities in social spaces and have them accorded social recognition. Part II argues that the adoption by US courts of a contingent rights paradigm has created vulnerabilities on both sides of the culture war, raising the stakes of rights jurisprudence and making the social recognition of each group dependent on the marginalization of the competing group. In part III, this article proposes a deliberative communitarian approach to balancing the claims of religious and LGBTQ groups as an alternative to the individual rights approach of the US. It uses the KCC decisions in the conscientious objector and military sodomy cases to explore how this alternative could be implemented in practice in Korea.
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