Democrats need another political win — preferably one that appeals to wavering Republican voters. The fraught issue of gay rights and religious liberty offers an opportunity, one that could also help fix the toxic polarization of American politics.

Sooner or later the extremists who now dominate the U.S. Supreme Court will confront that issue, and will almost certainly resolve it in a clumsy and destructive way. The Biden administration could help both itself and the country by getting there first, developing a balance that ameliorates the religious right’s worst fears.

Democrats, who admirably defend gay rights, are wary. The Fairness for All Act, which sought to combine anti-discrimination protections with religious exemptions, got not a single Democratic cosponsor. But this question can’t be evaded. The Religious Freedom Restoration Act (RFRA) mandates such accommodations for all federal statutes unless…Read More

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.