Peacemaking in the Culture War Between
Gay Rights and Religious Liberty
Jennifer Gerarda Brown
I. INTRODUCTION .......................................................................................749
II. THE PARADIGMATIC CASES .....................................................................755
A. PETERSON V. HEWLETT-PACKARD ...................................................757
1. Peterson Facts ............................................................................757
2. Peterson Law ..............................................................................758
3. Peterson Negotiations—What Went Wrong ............................759
4. Peterson Fall Out .......................................................................760
B. PARKER V. HURLEY ..........................................................................761
1. Parker Facts ...............................................................................761
2. Parker Law.................................................................................762
3. Parker Negotiations—What Went Wrong ..............................763
4. Parker Fall Out .........................................................................770
C. STARTZELL V. CITY OF PHILADELPHIA .............................................772
1. Startzell Facts .............................................................................773
2. Startzell Law ..............................................................................775
3. Startzell Negotiations—What Went Wrong ............................776
4. Startzell Fall Out .......................................................................778
III. WHY MEDIATION? ...................................................................................778
A. A PRIMER ON MEDIATION ..................................................................779
B. THE ATTRIBUTES OF MEDIATION THAT ENABLE IT TO RESOLVE
DISPUTES BETWEEN GAY RIGHTS AND RELIGIOUS LIBERTIES................780
1. Mediation Addresses Psychological Barriers to
Professor of Law and Director, Center on Dispute Resolution, Quinnipiac University
School of Law; Visiting Lecturer and Senior Research Scholar, Yale Law School. For helpful
comments and conversations, I am grateful to Akhil Amar, Ian Ayres, Michele Beardslee, Laura
Dooley, Ron Dooley, Maggie Herzig, Doug Ne Jaime, Robert Mnookin, Leonard Riskin, Joseph
Singer, William Rubenstein, Tom Schaffer, Lawrence Susskind, and workshop participants at
Harvard University, University of Missouri-Columbia, University of Florida, St. John’s University,
and Quinnipiac University law schools. Christopher Donlin, Allison Kaas, and Celestia Price
provided helpful research assistance.
748 95 IOWA LAW REVIEW 
a. Attribution Error .................................................................781
b. Partisan Perceptions ............................................................785
c. Loss Aversion ......................................................................790
2. Fostering Understanding and Complicating Views of
a. Identity as an Obstacle to Dispute Resolution ........................793
b. Overcoming Identity Obstacles by Developing Mutual
Understanding in Mediation ...............................................798
3. Emphasizing the Ongoing Relationship ...............................800
4. Dovetailing Values Instead of Emphasizing Value
a. Nonadversarial Conflict Resolution and Love of Enemies
in Christianity .....................................................................801
b. LGBT Empathy for Marginalized Groups—Threat of
IV. MEDIATING THE PARADIGMATIC CASES ..................................................803
A. PETERSON AND HEWLETT-PACKARD ...................................................803
B. PARKER AND THE LEXINGTON SCHOOL DISTRICT ................................806
1. Attribution Error .....................................................................807
2. Using Self-Affirmation and Pre-Existing Salience of
Values to Reduce Threats to Identity ....................................809
3. Emphasizing the Ongoing Relationship and Reducing
Collateral Damage ...................................................................810
4. Dovetailing Interests ...............................................................812
B. STARTZELL, PHILLY PRIDE, AND THE CITY .........................................812
V. CONCLUSION ..........................................................................................817
This Article takes seriously two important legal claims.1 The first claim,
increasingly sounded by opponents of marriage rights for same-sex couples,
warns that when private or governmental institutions create rights for gay
and lesbian people,2 those institutions simultaneously and inevitably
threaten opponents’ rights of religious liberty.3 The second claim,
articulated—surprisingly enough—by at least two federal district-court
judges, is that legal disputes involving these potentially conflicting interests
can and should be resolved through mediation.4 The thesis of this Article is
that these judges are correct: mediation holds tremendous potential in legal
disputes that pit “gay rights” against “religious liberty.”
Mediation offers a way out of the polarization that often characterizes
public discourse about the interplay of religious faith and homosexuality. As
this Article argues, events that transpire in one part of the country can have
dramatic and unintended consequences in other regions; a court’s decision
that definitively closes a conversation in Massachusetts can raise fears and a
host of troubling questions from California to Maine.5 Cases involving
education, employment, or public protest can be cited in discussions outside
those legal contexts to create worries about the implications of any norm
requiring equality for lesbian, gay, bisexual, or transgendered (“LGBT”)
people—especially in the law of marriage. In other words, when the political
process can twist court victory into electoral defeat, judicial precedent is not
always and everywhere an unalloyed good. Agreements that emerge from
1. To take the claims seriously is not necessarily to endorse them. By taking them
seriously, however, I do mean to accept for the sake of discussion that the claims are made
sincerely and are not pretexts for other, unspoken views.
2. These include the right to marry, to be free from discrimination and harassment on
the job, and to express gay-affirmative messages.
3. These rights include freedom of expression, free exercise of religion, freedom of
people to raise their children as they see fit, and freedom from discrimination on the basis of
4. Parker v. Hurley, 474 F. Supp. 2d 261, 265 (D. Mass. 2007), aff’d on other grounds, 514
F.3d 87 (1st Cir. 2008), cert. denied, 129 S. Ct. 56 (2008); Chambers v. Babbitt, 145 F. Supp. 2d
1068, 1073–74 (D. Minn. 2001).
5. As this Article goes to press, Maine has disappeared from the list of states permitting
same-sex couples to marry following a ballot initiative in November 2009 repealing the state’s
marriage-equality law. See An Act to End Discrimination in Civil Marriage and Affirm Religious
Freedom, ch. 82, 2009 Me. Laws § 2 (effective Sept. 11, 2009) (codified as ME. REV. STAT. ANN.
tit. 19-A, §§ 650-A, 650-B, 655, 701); Maria Sacchetti, Maine Voters Overturn State’s New Same-Sex
Marriage Law, BOSTON GLOBE, Nov. 4, 2009, available at http://www.boston.com/news/local/
occurred in California, advertisements opposing marriage for same-sex couples featured the
Parker case. Susan M. Cover, Marriage Debate Turns to Schools: But Unlike Elsewhere, Maine Doesn’t
Require Schools to Teach Anything at All About Marriage, Gay or Otherwise, PORTLAND PRESS HERALD,
Sept. 24, 2009, available at http://pressherald.mainetoday.com/story.php?id=285255.
750 95 IOWA LAW REVIEW 
negotiation and collaboration, in contrast, may better serve the needs of the
parties today and prevent political distortions tomorrow.6
There is no doubt that many people—religious objectors as well as
LGBT people—feel embattled.7 A significant subset of objectors to LGBT
rights feels an emerging threat to religious liberty; they fear that a law or
policy ensuring LGBT equality will require them to do something
inconsistent with their religious beliefs or prevent them from doing
something that their religious beliefs require.8 At its most extreme, the
concern is that the inclusion of same-sex couples in definitions of marriage
will lead states to silence and drive from the public sphere any opposition to
LGBT rights, including opposition that is based upon religious tradition.9
Various worst-case scenarios have been forecast:
Students and employees who object to homosexuality or same-sex
marriage would be forbidden from expressing these views in
their schools and places of employment, respectively;
Parents would be powerless to intervene when public schools
introduce children to ideas that are contrary to their families’
sincerely held religious beliefs; and
6. Cf. Henry Louis Gates, Jr. & John Stauffer, A Pragmatic Precedent, N.Y. TIMES, Jan. 19,
2009, at A25, available at http://www.nytimes.com/2009/01/19/opinion/19gates.html?th&
emc=th (“[T]hose who invoke high ideas and scorn compromise often bring themselves into
disrepute. Those whose actions are conditioned by an exquisite sense of frailty, by an
understanding that it’s more important to avoid the worst than to attain the best, may better
serve those ideals in the end.”).
7. See Douglas NeJaime, Inclusion, Accommodation, and Recognition: Accounting for Differences
Based on Religion and Sexual Orientation, 32 HARV. J.L. & GENDER 303, 305 (2009) (noting that
gay-rights advocates and religious conservatives “believe in the potential of court-centered
advocacy and in the power of minoritizing rights claims”).
8. The anticipated conflict is thus more patent and concrete for them than it is for many
religious objectors to gay rights for whom a legal change requires no alteration in their own
behavior or routine. This more general religious objection seems to be the basis for much of
the faith-based opposition to LGBT equality. See Justin T. Wilson, Note, Preservationism, or the
Elephant in the Room: How Opponents of Same-Sex Marriage Deceive Us into Establishing Religion, 14
DUKE J. GENDER L. & POL’Y 561, 563–64 (2007) (“The most commonly-cited reason for
opposing same-sex civil marriage is that it goes against one’s own religious beliefs.”); see also PEW
FORUM ON RELIGION & PUB. LIFE, PEW RESEARCH CTR. FOR PEOPLE & PRESS, REPUBLICANS
UNIFIED, DEMOCRATS SPLIT ON GAY MARRIAGE: RELIGIOUS BELIEFS UNDERPIN OPPOSITION TO
HOMOSEXUALITY 14 (2003), available at http://pewforum.org/publications/surveys/religion-
homosexuality.pdf (noting that of those opposed to same-sex civil marriage, forty-five percent
offered explicitly religious grounds as a justification for holding that position; no other reason
was as frequently cited).
9. See, e.g., Hearing on Raised H.B. 7395 Before the Judiciary Comm., 2007 Leg. (Conn. 2007)
(statement of Brian Brown, Executive Director, Family Institute of Connecticut), available at
Hearings] (stating that Brown understands legislators to be suggesting that his objections to
same-sex marriage are less legitimate because they are based on religion as well as public
policy); 152 CONG. REC. S5422 (2006) (statement of Sen. Brownback) (“It is becoming
increasingly apparent that same-sex marriage poses a significant threat to religious liberties.”).
Anyone expressing anti-gay sentiment, including statements that are
based upon religious precepts, could face a range of responses:
at the mild end of this spectrum would be dismissal and
disrespect in public debate; at the severe end would be civil
liability under antidiscrimination laws or even criminal sanction
under “hate speech” or breach-of-peace laws.
Three cases have fueled the perception that advances in LGBT rights
pose a threat to religious liberty: Peterson v. Hewlett-Packard (a dispute
between an employer who posted gay-affirming posters and an employee
who posted Bible verses, some condemning homosexuality, in response),10
Parker v. Hurley (a dispute between a public school and parents over
discussions and materials depicting same-sex couples and their families),11
and Startzell v. City of Philadelphia (a dispute over a city’s arrest of some street
preachers who were protesting at a gay-pride festival).12 In each case, the
court ruled against the religiously motivated opponent of gay rights.13 Thus,
opponents of LGBT protections frequently cite these cases as examples of
the silencing and oppression that they fear will accompany legal norms
upholding LGBT equality. I call these cases “paradigmatic,” both to signal
the way opponents of LGBT protections have used these cases as a rallying
cry and because, despite their diversity, they share characteristics that
suggest that mediation would be a better process for resolution than
Consider, for example, the case of David Parker. His dispute with the
Lexington, Massachusetts school system began in 2005.14 This was only
about a year after Massachusetts began to marry same-sex couples, pursuant
to the Supreme Judicial Court’s decision that the exclusion of same-sex
couples from civil marriage was unconstitutional,15 but years after the state
prohibited discrimination in public schools on the basis of sexual
orientation and required that public-school curricula encourage respect for
10. Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004).
11. Parker v. Hurley, 474 F. Supp. 2d 261 (D. Mass. 2007), aff’d on other grounds, 514 F.3d
87 (1st Cir. 2008), cert. denied, 129 S. Ct. 56 (2008).
12. Startzell v. City of Phila., No. 05-05287, 2007 WL 172400, at *1 (E.D. Pa. Jan. 18, 2007),
aff’d, 533 F.3d 183 (3rd Cir. 2008).
13. See Peterson, 358 F.3d at 605 (holding that Peterson had not offered any evidence to
support his disparate-treatment claim); Parker, 474 F. Supp. 2d at 269 (holding that the school’s
actions did not violate the plaintiffs’ liberty interest in controlling their children’s education);
Startzell, 2007 WL 172400, at *7 (holding that the City’s restriction on the plaintiffs’ First
Amendment rights was reasonable).
14. Parker, 474 F. Supp. 2d at 266 (noting that Parker’s son Jacob first brought home a
book depicting same-sex couples raising a family in 2005).
15. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
752 95 IOWA LAW REVIEW 
all individuals regardless of sexual orientation.16 When David’s child
brought home a book presenting same-sex couples and their families as
similar or equal to different-sex couples, David and his wife Tonia
objected.17 The Parkers requested notice and the chance to pull their
children from any adult-initiated discussion of homosexuality or same-sex
marriage.18 When the school denied these requests, the conflict escalated to
the point that law enforcement removed David from a school building and
arrested him for trespass.19 Several months later, along with another family,
the Parkers sued the school.20 The federal district court dismissed the action
for failure to state a claim upon which relief could be granted, and the First
In the course of his opinion dismissing the plaintiffs’ claim, Federal
District Court Judge Mark Wolf acknowledged the difficulty of finding
cooperative solutions in cases like the one before him, but continued:
[I]t is evident to the court that this dispute involves parents who
are passionately devoted to their children, many people who
support them, and committed educators and their many supporters
as well. Profound differences in religious beliefs are also a hallmark
of our diverse nation. It is often in a community’s interest to try to
find a reasonable way to accommodate those differences. Litigation
of the remaining state law claims in state court will result in a
judicial decision of the issues presented. It is not likely to end the
intense disagreement between the parties or the divisive impact of
it on their community. Therefore, the parties may wish to attempt
to mediate their dispute before resuming their legal battle in state
Thus, Judge Wolf counseled that even an intense, values-based conflict
around issues of homosexuality and religious faith could benefit from
He is not alone in recommending negotiated resolution of such
conflict. In Chambers v. Babbitt, Judge Donovan W. Frank similarly urged the
parties to find some peaceful resolution to the conflict on their own.23 In
16. Parker, 474 F. Supp. 2d at 263 (noting how the state department of education issued
standards in 1999 that encouraged instruction for pre-K through fifth-grade students focusing
on different types of people and families).
17. Id. at 266.
19. See infra note 93 and accompanying text (describing David’s arrest and the start of
20. Complaint and Jury Demand, Parker v. Hurley, 474 F. Supp. 2d 261 (D. Mass. Apr. 27,
2006) (No. 06-10751), 2006 WL 1324965.
21. Parker, 474 F. Supp. 2d at 261.
22. Id. at 265.
23. Chambers v. Babbitt, 145 F. Supp. 2d 1068, 1073 (D. Minn. 2001).
that case, high-school Principal Dana Babbitt prevented a student, Elliott
Chambers, from wearing to school a sweatshirt bearing the message
“Straight Pride” because the shirt offended some other students and the
Principal feared for the safety of Elliott and other students.24 In granting
Elliott’s motion for a preliminary injunction, Judge Frank implored:
[I]t is difficult for this Court to understand why all parties to this
lawsuit and the members of the Woodbury community, including
its parents, schools, student councils, and community leaders, have
relinquished their responsibility to a federal court to create
parameters of behavior for its schools and its youth. . . .
. . . The Court would suggest that it is now the responsibility of
the parties and all members of the Woodbury community to resolve
these issues within their community, rather than the Court, if the
best interests of all students and children in Woodbury are to be
served. Perhaps then, something truly good could result from the
unfortunate circumstances surrounding some of the events that led
to this case.25
At first blush, Judge Wolf and Judge Frank sound optimistic at best,
delusional at worst. Settle a dispute pitting gay rights against religious liberty?
Could any hot-button issue be hotter these days? As even the most
enthusiastic alternative-dispute-resolution (“ADR”) theorists would likely
concede, some cases belong in court, both because we need the public
declaration of norms that adjudication offers and because the parties’
clashing values are not amenable to the collaboration that negotiated
Surprisingly, however, there are reasons to believe that Judges Wolf and
Frank are exactly right, even—perhaps especially—in cases that pit gay rights
against religious liberty. In this Article, I address a specific set of cases that I
call “paradigmatic.” These cases share one crucial characteristic: they arise in
jurisdictions or private settings that have clearly established some principle
24. Id. at 1069.
25. Id. at 1073–74. Apparently, the parties agreed with the judge; within about six months,
the parties disposed of the case through a consent judgment. Consent Judgment and
Permanent Injunction, Chambers v. Babbitt, 145 F. Supp. 2d 1068 (D. Minn. 2001) (No.
26. Scholars have engaged in a lively debate about the suitability of mediation to resolve
constitutional cases of public import. See, e.g., Robert A. Baruch Bush, Mediation and
Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation, 3 J. CONTEMP. LEGAL
ISSUES 1, 1 (1990) (describing the ideological dimensions of the arguments both for and
against adjudication and mediation); Owen Fiss, Against Settlement, 93 YALE L.J. 1073, 1075
(1984) (arguing that ADR rests on questionable premises and is a highly problematic technique
that is not preferable to judgment); Jeffrey R. Seul, Settling Significant Cases, 79 WASH. L. REV.
881, 881 (2004) (advocating negotiation as an alternative to litigation when disputes involve
deep moral disagreement).
754 95 IOWA LAW REVIEW 
of LGBT equality, whether by judicial decision, statute, regulation, or, in the
case of private employers, company policy. When these new protections for
LGBT citizens and their families begin to interact with other citizens’
expression of religious faith, the potential for, and long-term benefits of,
nonlitigated resolution are especially great. The potential benefits are so
great, in fact, that institutions responsible for balancing these rights should
intervene early and bring in a neutral third party to facilitate negotiation
when clashes occur. When these early interventions fail and cases proceed to
litigation, judges should resist clarifying the exact contours of the competing
rights long enough to leave space for ADR. Tolerating ambiguity, in other
words, allows each community—each heterogeneous group of citizens whose
rights are potentially in tension—to clarify and reconcile the rights of
community members in its own way.27 This incremental, decentralized mode
may be socially optimal as our nation more generally learns to reconcile
equality for LGBT citizens with the convictions of fellow citizens who oppose
that equality on religious grounds.
The argument for mediation in our paradigmatic cases proceeds in
three steps. Part II presents cases that illustrate the conflict between gay
rights and religious liberty in three distinct contexts: employment, schools,
and public protests. This Part explains the facts that gave rise to the disputes
and the ways courts resolved them; it also analyzes, to the extent possible,
the negotiations that occurred in the cases to determine what went wrong.
Part III describes mediation and four of its comparative advantages over
unassisted negotiation or litigation in our paradigmatic cases: (1) it
addresses psychological barriers to agreement; (2) it allows each disputant to
develop a deeper and more nuanced understanding of the other; (3) it
focuses on the parties’ ongoing relationship; and (4) it dovetails the parties’
different but often complementary interests. The argument here is not that
mediation achieves these goals in every case, but that mediation creates
opportunities to do these things in ways that are difficult or impossible to do
27. See, e.g., Wendy Werris, ‘King & King’ Dragged into California’s Proposition 8 Vote,
PUBLISHERS WKLY., Oct. 28, 2008, available at http://www.publishersweekly.com/article/CA660
9102.html (discussing a 2004 case that was similar to Parker in Wilmington, North Carolina,
which was resolved by a committee of parents, teachers, and citizens of New Hanover County,
North Carolina, who met and decided that the book would remain at the school but in a
location accessible only for parental check-out).
28. In some mediations, no one (including the mediator) tries to exploit these
capabilities; in other cases, the parties and mediator try, but are not successful. See generally
Leonard L. Riskin & Nancy A. Welsh, Is That All There Is?: “The Problem” in Court-Oriented
Mediation, 15 GEO. MASON L. REV. 863 (2008) (indicating that empirical evidence suggests that
in “ordinary,” non-family cases, problem definition in most court-oriented mediation sessions is
quite narrow, the mediation is dominated by litigation-oriented risk analysis and valuation, and
mediation outcomes are similar to those produced by lawyers’ traditional bilateral
In Part IV, I imagine how mediation might have dealt with the
conditions that prevented negotiated resolution in each of the paradigmatic
cases. In other words, I describe the ways an effective mediator might have
helped the parties (and in some cases, interested bystanders) achieve what
the attempted negotiations and the resulting litigation failed to do. In this
effort, I am aided by interviews I conducted with participants in these cases.
Conversations with some of the individuals involved in the cases reveal
interests and perspectives that the pleadings and court opinions do not
capture. This Part acknowledges the acute challenges that the gay-
rights/religious-liberty cases present and attempts to address potential
misgivings about the use of mediation in these civil-rights cases.
This Article acknowledges the public dimension of these cases. As the
cases fall along a continuum of size, complexity, and public involvement, so
too the optimal design and timing of dispute-resolution processes might
vary. Along the continuum of cases, we may reach a point of such profound
public interest that resolution requires a public process, such as legislation,
adjudication in court, or deliberation in a consensus-building forum.
Ultimately, however, this Article resists the call to treat all of these
paradigmatic cases as “public disputes.” This resistance is born of my belief
that lasting peace will come when individuals in day-to-day, ongoing
relationships are able to perceive and understand the needs of the
individuals with whom they are in conflict.29 Decentralized, even intimate,
processes that emphasize one-on-one or small-group interaction have
greater potential to foster these individual relationships.
II. THE PARADIGMATIC CASES
This Part examines three cases that appear to pit LGBT equality against
the religious liberty of people with sincere, faith-based opposition to gay
rights. In these cases, religiously conservative individuals absorbed some cost
as a result of policies designed to protect LGBT rights. The cases represent a
good sampling of the kinds of situations cited by some opponents of LGBT
protections. In one case, an employee sues his Idaho employer when his
religious objections to a pro-gay diversity campaign at work culminate in his
firing for insubordination.30 In another, parents of young children battle a
Massachusetts school district over a diversity curriculum that includes gay
29. See JEDEDIAH PURDY, A TOLERABLE ANARCHY: REBELS, REACTIONARIES, AND THE MAKING
OF AMERICAN FREEDOM 119 (2009) (“The relation between authenticity and convention is not
so much a culture war as a balance within each life.”).
30. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 601 (9th Cir. 2004).
756 95 IOWA LAW REVIEW 
and lesbian couples and their families.31 In a third, religious protesters
challenge their ejection from a gay-pride event in Philadelphia.32
It is vitally important that each of these disputes arose in a legal context
that pitted two established legal principles against each other, leaving
ambiguity only with respect to the specific ways those rights would be
balanced or reconciled. If one party’s religious liberty (established
constitutionally, and in some cases, statutorily) is pitted against an LGBT
person’s legitimacy, but that legitimacy has not yet been established in law or
policy, mediation is likely to reflect the LGBT person’s precarious legal
interest and prevent the parties from negotiating on an equal footing.
Because pursuing legal remedies is often the “Best Alternative to a
Negotiated Agreement” (“BATNA”),33 one side’s lack of a legally cognizable
right will usually weaken its position in negotiation, absent some
compensating political, economic, or social power.34 Moreover, emphasizing
negotiated outcomes before a norm of LGBT legitimacy or equality has been
established may retard that civil-rights struggle in ways that would destroy
any incentive to participate in mediation. Therefore, to be clear, this Article
is advocating for mediation in cases that arise after—not before—a private or
governmental institution has adopted a policy of LGBT equality. This allows
mediation to focus on ways to adjust citizens to a changing legal landscape,
and to make that adjustment with due regard for some people’s cherished
practices and preferences for the old legal order. Even with this
qualification, my thesis applies to a potentially vast group of cases, as twenty
states, hundreds of local governments, and thousands of private workplaces
have adopted nondiscrimination norms that include sexual orientation.35
When presented in the abstract, the conflict in each of these
paradigmatic cases seems intractable and the positions on each side seem
nearly irreconcilable. The thesis of this Article, however, is that the deeper,
more personalized nature of mediation may uncover the potential for
31. Parker v. Hurley, 474 F. Supp. 2d 261, 262–63 (D. Mass. 2007), aff’d on other grounds,
514 F.3d 87 (1st Cir. 2008), cert. denied, 129 S. Ct. 56 (2008).
32. Startzell v. City of Phila., No. 05-05287, 2007 WL 172400, at *1 (E.D. Pa. Jan. 18, 2007),
aff’d, 533 F.3d 183 (3d Cir. 2008).
33. ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING TO YES: NEGOTIATING
AGREEMENT WITHOUT GIVING IN 97 (2d ed. 1991).
34. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case
of Divorce, 88 YALE L.J. 950, 974–75 (1979).
35. See generally HUMAN RIGHTS CAMPAIGN FOUNDATION, THE STATE OF THE WORKPLACE
FOR LESBIAN, GAY, BISEXUAL AND TRANSGENDER AMERICANS 2007–2008, at 2–8 (2009)
(presenting summary statistics). Indeed, by one 2005 estimate, nearly half of the United States
population lives in a jurisdiction that extends some guarantees of nondiscrimination to lesbian
and gay citizens. See SEAN CAHILL, REPORT OF THE NATIONAL GAY AND LESBIAN TASK FORCE
POLICY INSTITUTE, THE GLASS NEARLY HALF FULL: 47% OF U.S. POPULATION LIVES IN
JURISDICTION WITH SEXUAL ORIENTATION NONDISCRIMINATION LAW 1 (2005) (summarizing a
2005 statistical study of the status of state laws banning discrimination on the basis of sexual
collaboration and ongoing negotiation—even when values seem to clash,
emotions are heightened, and the culture war is at its most fervent pitch.
A. PETERSON V. HEWLETT-PACKARD
To begin, consider a case that, at first blush, appears not to be
amenable to negotiated resolution. Upon closer examination, however, we
may discover that resolution was hampered by just the sort of conditions that
mediation is designed to address.
1. Peterson Facts
In this case, Richard Peterson, an employee in the Boise, Idaho office of
Hewlett-Packard (“HP”) for almost twenty-one years, objected when a
company-wide diversity campaign at HP included hanging posters in
employee work areas that featured an HP employee identified as gay.36
Peterson’s deeply held religious beliefs included the belief that “homosexual
activities violate the commandments contained in the Bible and that he has
a duty ‘to expose evil when confronted with sin.’”37 Peterson countered the
diversity program by posting Bible verses,38 some of which condemned
homosexual acts in direct language, in his cubicle.39 The scriptural postings
were visible to others; indeed, Peterson stated that they were “intended to be
hurtful [because] you cannot have correction unless people are faced with
Peterson’s direct supervisor determined that the postings violated HP’s
harassment policy and removed them from Peterson’s cubicle.41 When HP
managers were unable to persuade Peterson to keep the postings out of his
cubicle, they gave Peterson time off with pay to allow him to reconsider his
position.42 When he returned to work, he reposted the scriptural passages
and refused to remove them.43 HP managers again met with Peterson, but
36. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 601 (9th Cir. 2004)
38. The scriptural passages included 2 Corinthians 10:12 (“For we dare not make ourselves
of the number, or compare ourselves with some that commend themselves: but they measuring
themselves by themselves, and comparing themselves among themselves, are not wise.”); Isaiah
3:9 (“The shew of their countenance doth witness against them; and they declare their sin as
Sodom, they hide it not. Woe unto their soul! for they have rewarded evil unto themselves.”);
and most controversially, Leviticus 20:13 (“If a man also lie with mankind, as he lieth with a
woman, both of them have committed an abomination; they shall surely be put to death; their
blood shall be put upon them.”). Peterson, 358 F.3d at 601–02.
39. Peterson, 358 F. 3d at 601–02.
40. Id. at 602.
41. Id. The policy marked as “unacceptable” any “comments or conduct relating to a
person’s race, gender, religion, disability, age, sexual orientation, or ethnic background that fail
to respect the dignity and feeling [sic] of the individual.” Id. (alteration in original).
758 95 IOWA LAW REVIEW 
ultimately fired him for insubordination.44 According to Peterson, he did
not post the most explicitly anti-gay passage from the book of Leviticus until
the very day that he was fired.45 Thus, during the two and one-half to three
weeks that he engaged in negotiations with HP management, only the more
opaque Bible verses were posted in his cubicle.46 Peterson brought a
wrongful-discharge suit, lost on summary judgment, and appealed to the
Ninth Circuit.47 Although the Ninth Circuit has a court-connected
mediation program and a “telephonic settlement assessment conference”
occurred shortly after notice of appeal was filed, settlement efforts did not
proceed beyond the assessment conference.48 The Ninth Circuit affirmed
the dismissal of Peterson’s Complaint.49
2. Peterson Law
The legal standard for employment discrimination was clear, according
to the Ninth Circuit.50 The only question on review was whether the district
court had correctly decided that Peterson had failed to raise a genuine issue
of material fact about whether he met the standard for showing
discrimination.51 The Ninth Circuit agreed with the district court that
Peterson had failed to raise an inference of disparate treatment and that
accommodating Peterson’s religious beliefs would have inflicted undue
hardship on HP.52 His case, therefore, was untenable.
In a perceptive analysis of Peterson, Andrew Koppelman argues that even
if, as a legal matter, the courts were right to reject the plaintiff’s case, we
should pause and consider whether the case might have taken a more
peaceful path.53 Although it was clear that Peterson was an “outlier,
someone whose views did not represent those of the company,” Koppelman
challenges the Ninth Circuit’s apparent presumption that “it is never
44. Peterson, 358 F.3d at 602.
45. Telephone Interview with Richard D. Peterson (Mar. 4, 2008).
47. Peterson, 358 F.3d at 601.
48. According to Claudia Bernard, Chief Circuit Mediator for the Ninth Circuit, one
might safely infer from the lack of progress beyond the settlement assessment conference that
“at least one, if not both, of the parties was not interested in pursuing mediation.” E-mail from
Claudia Bernard, Chief Circuit Mediator, Ninth Circuit, to Jennifer Gerarda Brown, Professor
of Law, Quinnipiac Sch. of Law (Oct. 31, 2007, 12:39 EST) (on file with the Iowa Law Review).
But see infra note 318 and accompanying text (pointing out that Peterson does not recall ever
being given the opportunity to mediate).
49. Peterson, 358 F.3d at 608.
50. See id. at 602–03 (applying a disparate-treatment analysis).
51. Id. at 601.
52. Id. at 608.
53. Andrew Koppelman, You Can’t Hurry Love: Why Antidiscrimination Protections for Gay
People Should Have Religious Exemptions, 72 BROOK. L. REV. 125, 144–46 (2006) [hereinafter
Koppelman, You Can’t Hurry Love].
appropriate, in civil society, for someone to say things that he knows to be
hurtful to others” or that “none of us need to hear things that will hurt us.”54
Although Koppelman acknowledges the powerful analogy between
heterosexism and racism,55 he perceives at least one important difference:
“Not all antigay views . . . deny the personhood and equal citizenship of gay
people. Certainly Peterson’s views did not do that. There is a serious
discussion to be had here about sexuality and morality. Peterson’s views do
not place him beyond the pale of civilized discussion.”56 Nonetheless,
Peterson’s Bible verses placed him beyond the pale of HP’s harassment
policy, and his twenty-one-year career came to an end.57
3. Peterson Negotiations—What Went Wrong
HP management attempted to meet with Peterson and negotiate a
resolution of the dispute.58 Peterson presented an ultimatum to HP
management: “he would remove the offending scriptural passages if Hewlett-
Packard removed the ‘Gay’ posters; if, however, Hewlett-Packard would not
remove the posters, he would not remove the passages.”59 Peterson admits
that this was the proposal he made to HP, but he notes that in all of their
conversations with him, HP persisted in an ultimatum of its own: if he didn’t
remove his Bible verses, he would be fired.60 HP never presented an
alternative proposal to Peterson.61
According to the Ninth Circuit, Peterson’s proposal would have caused
undue hardship to HP, effectively requiring the company to abandon its
diversity program or to create such a large exception to it for Peterson that
the effectiveness of the program would be significantly compromised.62
When HP managers rejected Peterson’s ultimatum, he responded: “‘I don’t
see any way that I can compromise what I am doing that would satisfy both
[Hewlett-Packard] and my own conscience . . . . [A]s long as [Hewlett-
Packard] is condoning [homosexuality] I’m going to oppose it . . . .’”63
Peterson later said that his manager told him “quite a few” people had
objected to the diversity program and posters, but that management had
54. Id. at 144–45.
55. Indeed, Koppelman can be credited with being one of the first to see and articulate
that analogy. See generally Andrew Koppelman, The Miscegenation Analogy: Sodomy Law as Sex
Discrimination, 98 YALE L.J. 145 (1988).
56. Koppelman, You Can’t Hurry Love, supra note 53, at 145.
57. Peterson, 358 F.3d at 602.
60. Telephone Interview with Richard D. Peterson, supra note 45.
62. See Peterson, 358 F.3d at 607–08 (stating that while Hewlett-Packard must withstand
some employee discomfort, it does not have to put up with conduct intended to demean its
63. Id. at 602 (quoting Richard Peterson).
760 95 IOWA LAW REVIEW 
been able to “persuade” these concerned employees that the program would
be “good.”64 In Peterson’s estimation, these employees, most of whom were
younger, with children, and who had substantial financial responsibilities,
simply buckled under the pressure of management persuasion.65 Peterson
felt that as an older worker with “children who were grown and a house that
was paid for,” he had greater wherewithal to stand up for his beliefs.66
Still, he reported feeling outnumbered and even somewhat
overwhelmed in his meetings with HP management.67 Although the HP
diversity program encouraged employees to have open discussions about
differences, Peterson felt that the people who ran such meetings were very
articulate and assertive.68 If Peterson began to feel powerless or silenced, it
would be understandable that his views might harden and intensify.69 As
genuine as management’s efforts might have been to peacefully resolve
Peterson’s conflict with HP, the structure may have doomed the negotiations
from the start. The discussion moved too quickly to brinksmanship; Peterson
would have experienced any concession he might make as a betrayal of his
Christian faith and identity.
4. Peterson Fall Out
Peterson has been cited frequently as an example of the ways that
Christianity is marginalized when public or private policies recognize LGBT
equality. One concerned writer summarized the result this way: “the court
affirmed the ability of employers to implement ‘diversity programs’ that
promote sexual immorality while prohibiting employees from objecting.”70
64. Telephone Interview with Richard D. Peterson, supra note 45.
69. This is an insight of the transformative model of mediation, which posits that the goals
of mediation should be fostering empowerment and recognition in order to improve the
parties’ relationship and ability to handle conflict on their own. See ROBERT A. BARUCH BUSH &
JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH
EMPOWERMENT AND RECOGNITION 84–85 (1994). Bush and Folger argue:
[E]mpowerment is achieved when disputing parties experience a strengthened
awareness of their own self-worth and their own ability to deal with whatever
difficulties they face . . . . Recognition is achieved when, given some degree of
empowerment, disputing parties experience an expanded willingness to
acknowledge and be responsive to other parties’ situations and common human
70. Robert H. Knight, The Corporate Curtain: How Companies Are Using Views on Homosexuality
to Punish Their Christian Employees, CONCERNED WOMEN FOR AMERICA, Jan. 20, 2006, http://www.
cwfa.org/articledisplay.asp?id=9808&department=CFI&categoryid=papers; see also DAVID
LIMBAUGH, PERSECUTION: HOW LIBERALS ARE WAGING WAR AGAINST CHRISTIANITY 372 (2004)
(citing Peterson as an example of the ways “secularists persist in their crusade to wipe Christianity
Another website claimed that Peterson was fired for not “accepting [the
company’s] values.”71 Indeed, a quick Google search will yield scores of
websites that describe the Peterson case in dire terms. Although HP may
consider the Peterson case to be an important precedent supporting its
diversity and nondiscrimination efforts, it is also a case that provides
evidence for individuals and organizations opposed to LGBT legal
B. PARKER V. HURLEY
In Parker v. Hurley, devoutly religious parents whose faith and tradition
held homosexuality to be sinful came into conflict with their children’s
school.72 The school had developed a curriculum designed to inculcate
respect and appreciation for diversity, including the family diversity
observable in Massachusetts, where same-sex couples can marry.73
1. Parker Facts
In 2005, Jacob Parker was a kindergartener at Estabrook Elementary
School, a public school in Lexington, Massachusetts.74 One day, he brought
home a book that was part of the “Diversity Book Bag” program.75 One of
the books in the bag was Who’s in a Family, which depicted families headed
by grandparents as well as different-sex, same-sex, interracial, and single
In 2006, seven-year-old Joey Wirthlin listened as his first-grade teacher
at Estabrook read King and King aloud to his class.77 As the storyline goes:
King and King is a fairytale about a prince ordered by his mother,
the queen, to find a princess to marry. The prince rejects each of
the princesses he meets. Ultimately, the prince meets another
prince. The two fall in love, marry, and live happily ever after. The
book concludes with a cartoon kiss between the young couple.78
from the halls of private corporations”); David Cloud, What Will Be Illegal When Homosexuality Is
Legal?, WAY OF LIFE LITERATURE, Nov. 26, 2008, available at http://www.wayoflife.org/files/
category-homosexuality.html (citing Peterson to support the claim that “when homosexuality is
fully legal, you won’t be able to say anything that might appear biased against homosexuality”).
71. Robert A. J. Gagnon, The Threat of the Homosexual Agenda to Your Freedoms (2004)
(unpublished manuscript), http://robgagnon.net/HomosexualAgenda.htm.
72. Parker v. Hurley, 474 F. Supp. 2d 261, 262–63 (D. Mass. 2007), aff’d on other grounds,
514 F.3d 87 (1st Cir. 2008), cert. denied, 129 S. Ct. 56 (2008).
73. Id. at 266.
76. Id. Later, Who’s in a Family was in Jacob’s first-grade reading center, along with Molly’s
Family, which teaches about different kinds of families, focusing on a student whose parents are
a same-sex couple. Id.
77. Parker, 474 F. Supp. 2d at 266.
762 95 IOWA LAW REVIEW 
Because Jacob’s parents, David and Tonia Parker, and Joey’s parents,
Joseph and Robin Wirthlin, held religious beliefs that they believed were
contrary to the books in question, they did not want the school to teach the
material to their children.79 They requested that the Estabrook Elementary
School not expose their children to any material or discussion concerning
homosexuality or same-sex unions without first giving notice and an
opportunity to pull their children from such lessons.80 When Lexington
school officials refused these requests, the parents sued in federal court
alleging due-process, free-exercise, and state statutory violations.81
2. Parker Law
The parents in Parker wanted notice and the chance to opt out because
they worried that Estabrook Elementary School was using Who’s in a Family
and King and King “to ‘indoctrinate’ their young children with the beliefs
that homosexuality and same-sex marriages are moral and acceptable, and
that the Parkers’ and Wirthlins’ beliefs and teachings to the contrary are
incorrect.”82 The court saw the diversity curriculum as an accurate reflection
of legal change in the state of Massachusetts: “Both books were part of the
Lexington school system’s effort to educate its students to understand and
respect gays, lesbians, and the families they sometimes form in
Massachusetts, which recognizes same-sex marriage.”83 From the school’s
perspective, however, the curriculum had little to do with the legality of
marriage for same-sex couples and everything to do with state department of
education directives that predated the marriage law by several years.84 The
conflict at first focused only on whether marriage for same-sex couples was
an appropriate topic for discussion with young children. As the case
progressed, the parties’ communications about the matter soured, and the
plaintiffs asserted that the defendants were denigrating their sincere and
deeply held religious beliefs.85
The Parkers and Wirthlins invoked a Massachusetts statute that requires
schools to give parents notice and an opportunity to exempt their children
from any curriculum that “‘primarily involves human sexual education or
human sexuality issues.’”86 To the Parkers and Wirthlins, discussions of
homosexuality and same-sex marriage were “primarily” about “human sexual
81. Complaint and Jury Demand, supra note 20, ¶¶ 71–73, 78, 83–84.
82. Parker, 474 F. Supp. 2d at 266.
83. Id. at 263 (emphasis added).
84. Id. at 265.
85. Id. at 263.
86. Id. at 266 (quoting MASS. GEN. LAWS ch. 71, § 32A (2007)).
education or human sexuality issues.”87 To the defendants, this policy did
not apply to every reference to homosexuality or teaching about same-sex
marriages.88 To apply the statute so broadly would be impractical, the
defendants argued, and so they denied the Parkers’ and Wirthlins’
The legal question presented by the Parker Complaint was not novel.
The history of conflict between public education and parental rights had
yielded sufficient precedent within the First Circuit such that, according to
district-court Judge Wolf, the legal question was easily resolved.90
But even if the legal question in Parker was settled, the context in which
that question arose was new in important ways. In a kind of feedback loop,
debates about marriage rights for same-sex couples both gave rise to, and
have been influenced by, the Parker case. If precedent was as clear as Judge
Wolf declared (and it is not the purpose of this Article to decide that
substantive constitutional question), the case is not all that interesting from
a legal standpoint. From a larger political and social standpoint, however,
the case is extremely important, because it provides a good illustration of the
sorts of disputes that can arise as laws change to give LGBT people greater
protection and recognition.
3. Parker Negotiations—What Went Wrong
It is clear that David Parker and Estabrook Elementary School officials
made significant efforts to negotiate. E-mails,91 phone conversations, and
face-to-face meetings culminated on April 27, 2005, when the Parkers met
with school officials to discuss their requests for notice and an opportunity
to pull their children from any discussion of “homosexuality,
87. See Parker, 474 F. Supp. 2d at 261 (noting that the Parkers and Wirthlins claimed that
the defendants violated the Massachusetts law that allows parents to opt out of curriculum that
is primarily based on human sexuality).
88. People have long disagreed about the centrality of sex and sexuality in discussions of
LGBT people and their relationships. Some argue that focusing exclusively on sexual activity,
while ignoring the roles of affection, romance, and commitment, is a form of anti-gay bias. See
Jennifer Gerarda Brown, Sweeping Reform from Small Rules? Anti-Bias Canons as Substitute for
Heightened Scrutiny, 85 MINN. L. REV. 363, 385–86 (2000) (commenting that a judge’s very
narrow view of what it means to be gay may reflect bias).
89. Parker, 474 F. Supp. 2d at 266–67.
90. Id. at 263 (“[T]he constitutional right of parents to raise their children does not
include the right to restrict what a public school may teach their children.” (citing Brown v.
Hot, Sexy & Safer Prods., 68 F.3d 525, 533–34 (1st Cir. 1995))). Brown distinguishes “the state
proscribing parents from educating their children,” which the Constitution forbids, from
“parents prescribing what the state shall teach their children,” which the Constitution does not
require. Brown, 68 F.3d at 534.
91. One can view a record of the e-mails between the parties on a website run by
MassResistance, a group supporting David Parker. MassResistance, Timeline of Events and E-
mail Correspondence Leading Up to April 17 Final Meeting and Arrest, http://www.article8.
org/docs/news_events/parker/timeline_events.htm (last visited Feb. 28, 2010).
764 95 IOWA LAW REVIEW 
transgenderism, or gay relationships/marriage.”92 When the school rejected
the plaintiffs’ proposed plan and terminated the meeting, David Parker’s
frustration grew so intense that he refused to leave the school and was
ultimately arrested for trespassing by the Lexington Police Department.93
During the fall of the following school year, the Parkers renewed their
requests and were again rebuffed.94 In early 2006, Joseph and Robin
Wirthlin moved to town and were also concerned about their children’s
exposure to books and discussions about marriage for same-sex couples.95
The Parkers and Wirthlins filed their lawsuit in April of 2006.96
From such an impasse, it can be helpful to back away and consider:
what was at stake for the Parkers and Wirthlins? What caused them such
distress that they brought a federal claim to seek relief?
Some answers to such questions may be found in their Complaint. They
begin by describing their religious faith:
The plaintiffs are devout Judeo-Christians. Included in their core97
Judeo-Christian beliefs is the concept that issues pertaining to
sexual intimacy, procreation, human sexuality, and the holy basis of
matrimony should remain private within families, be introduced by
parents, and governed by the laws of the God of Abraham. Also
included is the concept that homosexual behavior is immoral in
that it violates God’s law.98
Further, they explain the ways that their religious faith forms their view of
By virtue of their strong religious faith, the Parkers adhere to a
religious principle that holds that marriage is holy matrimony by
definition, a union between a man and a woman, and that labeling
marriage to be otherwise is immoral. The notion of the acceptable
interchangeability of male and female within the marriage
92. Complaint and Jury Demand, supra note 20, ¶ 42.
93. Id. ¶ 38.
94. Id. ¶¶ 42–43.
95. Dan Aiello, Memo Links Mass. Couple to Prop 22, Mormon Strategy, BAY AREA REP. (S.F.),
Nov. 27, 2008, available at http://www.ebar.com/news/article.php?sec=news&article=3520
[hereinafter Aiello, Memo Links Mass. Couple].
96. See generally Complaint and Jury Demand, supra note 20.
97. Not all Christians would consider the points about marriage and homosexuality to lie
within the “core,” but it is enough that these particular plaintiffs did so. And they are not alone.
See generally Family Research Council, Issues Library, http://www.frc.org/issues (last visited Feb.
28, 2010) (listing “Human Sexuality,” “Human Life and Bioethics,” and “Marriage and Family”
as the top three issues pursued by the organization); Family Research Council, Mission
Statement, http://www.frc.org/mission-statement (last visited Feb. 28, 2010) (stating the
organization’s purpose is to “promote the Judeo-Christian worldview”).
98. Complaint and Jury Demand, supra note 20, ¶ 23.
construct99 and within a personal identity dictated by nature100 is
not consistent with the Parkers’ sincerely-held religious beliefs, nor
is the sexual acting out of same-sex attraction (homosexuality).101
A final point very much at stake for the Parkers and Wirthlins was
control over the way their children would be raised. Although the plaintiffs
realized that their children would eventually learn about homosexuality and
the inclusion of same-sex couples in the marriage laws of Massachusetts,
“they did not wish to discuss the topic of homosexual marriage or
homosexuality and transgenderism with Joshua or Jacob at their current
ages.”102 Because they wanted to delay their children’s introduction to these
subjects, they wanted to shield their children from exposure to the topics at
school as well.
The schools were concerned that accommodating the parents’ notice
and opt-out requests would have disrupted the classroom and sent a hurtful
message to the other children in the classroom, especially children from
families headed by same-sex couples.103 They also may have been concerned
about the cost of screening materials to determine whether parental
notification and opt-out would be appropriate.104
Although we cannot know precisely what happened in the parties’
protracted attempts to negotiate a resolution of their conflict, the
99. The plaintiffs’ objection to “the acceptable interchangeability of male and female
within marriage” is suggestive of deeper concerns. This principle of faith could lead to a much
wider set of objections to class discussion than the plaintiffs asserted in the Complaint, reaching
discussions of gender and women’s equality independent of the topic of marriage for same-sex
couples. The Complaint, however, focuses only on marriage for same-sex couples.
100. Although this phrase is a bit opaque, it seems to refer to theories that homosexuality is
innate, and—whether caused by genetics, hormones, or other causes—a part of identity beyond
the individual’s control. The plaintiffs do not allege that their children were exposed to this
particular theory; the Complaint seeks to remove the plaintiffs’ children from any class
discussion of homosexuality. By explaining more fully their religious beliefs and the ways they
affect the plaintiffs’ approach to homosexuality, however, the plaintiffs help to put their legal
claim in the larger context of their values and world view. It also suggests the ways in which the
Parkers and Wirthlins could continue to clash with school authorities as their children
progressed through elementary and middle school.
101. Complaint and Jury Demand, supra note 20, ¶ 28.
102. Id. ¶ 29.
103. Parker v. Hurley, 474 F. Supp. 2d 261, 265 (D. Mass. 2007), aff’d on other grounds, 514
F.3d 87 (1st Cir. 2008), cert. denied, 129 S. Ct. 56 (2008) (“An exodus from class when issues of
homosexuality or same-sex marriage are to be discussed could send the message that gays,
lesbians, and the children of same-sex parents are inferior and, therefore, have a damaging
effect on those students.”).
104. See Ethan Jacobs, GLAD Attorney: Lexington Schools Lawsuit Has Had Chilling Effect on
Public Schools, BAY WINDOWS (Boston, Mass.), Sept. 27, 2007, available at http://www.bay
windows.com/index.php?ch=news&sc=glbt&sc3=&id=58179 (noting that the Gay and Lesbian
Advocates and Defendants (“GLAD”) attorney feared that schools would tire of spending
resources on such screening and disclosure and decide that the easier course would be to pull
the materials and cease the discussions completely).
766 95 IOWA LAW REVIEW 
discussions appear to have adopted a strongly “positional” character very
quickly.105 The parties stopped talking about the reasons for their actions
and requests and simply stated demands and non-negotiable policies. On
January 14, 2005, the Parkers’ son brought home the Diversity Book Bag; a
few days later the Parkers initiated e-mail exchanges with Principal Joni
Jay.106 The plaintiffs’ Complaint does not indicate whether the Parkers
raised their concerns with their son’s teacher in the interim or went directly
to the Principal. The first e-mail on each side was characterized by inquiry
and a willingness to discuss the problem.107 However, after one meeting with
Principal Jay and two meetings with the school’s Anti-Bias Committee, the
Parkers’ e-mails conveyed assertions such as “[w]e do not authorize any
teacher or adult within the Lexington Public School system to expose our
sons . . . to any sexual orientation/homoseexual [sic] material/same sex
unions between parents. We shall be notified in advance of any such activity
in the Estabrook School.”108
The plaintiffs also demanded concessions, possibly as a pre-condition
for negotiation to take place.109 The day after she received the Parkers’
inquiry, Principal Joni Jay invited them to meet with her to discuss the
matter.110 In response to Principal Jay’s invitation to meet, David Parker
stated, “At the very least, even before this meeting—we would like a
commitment from you that [my son] will not be subjected to homosexual
family values/materials at Estabrook from teachers/staff/and school
visitors/guests.”111 The e-mail from school officials opened with a stated
willingness to discuss “all of your concerns.”112 At their first face-to-face
meeting, however, Principal Jay asserted (according to the Parkers) that the
105. See FISHER, URY & PATTON, supra note 33, at 9–14 (distinguishing “positions” (what the
parties want) from underlying interests (the reasons they want those things)).
106. See MassResistance, supra note 91 (reproducing the e-mails that the Parkers and
Principal Joni Jay sent to each other in chronological order).
107. See E-mail from David and Tonia Parker, to Joni Jay, Principal, Estabrook Sch. (Jan. 17,
2005), available at http://www.article8.org/docs/news_events/parker/timeline_events.htm
(“[W]e encourage your feedback, both to the school and to us, concerning this letter.”); E-mail
from Joni Jay, Principal, Estabrook Sch., to David and Tonia Parker (Jan. 18, 2005), available at
http://www.article8.org/docs/news_events/parker/timeline_events.htm (“I want to make sure
we have a chance to discuss all of your concerns, so I think the best thing would be if we could
108. E-mail from David and Tonia Parker, to Joni Jay, Principal, Estabrook Sch. (Mar. 4,
2005), available at http://www.article8.org/docs/news_events/parker/timeline_events.htm.
109. Michael Meltsner & Philip G. Schrag, Negotiating Tactics for Legal Services, 39
CLEARINGHOUSE REV. 589, 591 (2006) (“If the other side wants to talk (e.g., if it requested the
negotiations), [a negotiator] can often improve the chances of a favorable outcome by calling
one of their demands a ‘precondition’ to negotiations.”).
110. E-mail from Joni Jay, supra note 107.
111. E-mail from David and Tonia Parker, to Joni Jay, Principal, Estabrook Sch., and Mr.
Hurley, Superintendent (Jan. 18, 2005), available at http://www.article8.org/docs/news_
112. E-mail from Joni Jay, supra note 107.
Parkers were the first family to complain about the Diversity Book Bags in
the three years of the program.113 Principal Jay also asserted that “she had
checked with administrators and that no parental notification is required to
discuss homosexual families/issues,” and that “‘[f]aculty can discuss
homosexual families and homosexual issues with your son.’”114 It is
altogether possible that Principal Jay conducted the meeting in a spirit of
open-ended, appreciative inquiry; this is not, apparently, the impression she
left with the Parkers.115
Moreover, David Parker recalls that when he asked the chair of the
school’s Anti-Bias Committee, Tom Griffith, if Parker could attend diversity
curriculum meetings that included gay parents, even offering to leave the
meeting if things got out of hand, Griffith was “dumbfounded”; he simply
“couldn’t conceive” that the Parkers would want to actually talk through the
issues.116 According to Parker, however, discussion of the issues was one of
Part of the point of this [was] to get into a discussion. What
happened early on is that my voice was being squashed. Worse,
they were degrading me and my family . . . I was interested in
dialogue. Why was that not possible? I thought to myself, “why am I
even here? Why am I subjecting myself to this?”117
This inability to maintain an open, respectful dialogue was a huge
frustration to David Parker, perhaps the one that ultimately fueled his
Once the plaintiffs filed their lawsuit, their concerns had hardened into
allegations. The defendants, in turn, had little time to consider problem-
solving responses to the lawsuit, as deadlines for answers and motions to
dismiss consumed the bulk of lawyer time and energy.118 As defense counsel
John Davis acknowledged, there is “not much chance to pause” once a
dispute enters active litigation.119 Davis is somewhat philosophical about this
With some of these things, the parties are so far apart at the
beginning, you just have to go through the process. In my
experience, it’s hard to mediate at the outset . . . once these cases
are in suit, it’s going to take a little while, with time for pleadings,
113. MassResistance, supra note 91.
114. Id. (quoting Principal Joni Jay).
115. Indeed, David Parker believes that “in the middle of the conversation” he was having
with Principal Jay by e-mail, she put a “spam block” to bounce back e-mails from him.
Telephone Interview with David Parker (Mar. 12, 2008).
118. Telephone Interview with John J. Davis, Counsel for Defendants (Mar. 1, 2008).
768 95 IOWA LAW REVIEW 
motions, and maybe discovery, to learn something more [that
might drive you toward settlement].120
Once defendants are successful on a motion to dismiss, Mr. Davis observed,
it is understandable for them to wonder why they should mediate.121
In the Parker case, the First Circuit appellate-mediation program
attempted “conciliation” through a face-to-face meeting at the courthouse,
but this effort was unsuccessful.122 The problem was not, Mr. Davis believed,
that the First Circuit lacked credibility, impartiality, or effectiveness as a
convener for mediation.123 The central problem in trying to mediate cases
generally, he believes, is “timing.”124 The trick is to find a window of
opportunity, after the period that the parties naturally require in a lawsuit to
“go through the process” and “lay out their positions,” but before a ruling
on a case-dispositive motion renders one party the “winner” and the other
In the Parker case, that window of opportunity seemed to open and
close with no attempt at mediation. By the time the First Circuit became
involved, it may have been too late. David Parker recalled that this
conciliation session gathered everyone in a room, but then “immediately
separated us.”126 He remembered that the plaintiffs were told (presumably
in caucus), “You’re the losers, you need to capitulate.”127 The decision to
separate the parties and to engage in such reality checking, however, seems
to have backfired, because such blunt talk only strengthened Parker’s
resolve. The more he felt “pushed into the corner,” the more strongly he felt
that “there are some things you never compromise on.”128 “[The school
officials] were not willing to compromise one iota,” Parker said, “and neither
was I . . . after what they did to me and my family.”129 Defendant Paul Ash
agreed that the mediation was troubled from the start, but attributed it to
the plaintiffs’, rather than the school district’s, unwillingness to
122. Id. Mr. Davis declined to talk about why the appellate “conciliation” was unsuccessful
because the case had not come to complete closure at the time I spoke with Mr. Davis and
because rules of the jurisdiction require confidentiality regarding the substance of the
123. Telephone Interview with John J. Davis, supra note 118.
126. Telephone Interview with David Parker, supra note 115.
130. See Aiello, Memo Links Mass. Couple, supra note 95 (noting that the school district made
“several attempts to appease the Wirthlins and accommodate their religious convictions, but,”
according to Superintendent Ash, “‘the Wirthlins and Parkers had no intention of coming to a
Attempts to negotiate resolution of the Parker case, both before and
after the lawsuit was filed, may have been hampered by the sheer complexity
of the parties and their conflict. On the plaintiffs’ side, the apparent
simplicity of the partnership between the Parkers and the Wirthlins may
have obscured heterogeneous interests. For example, the Wirthlins decided
to withdraw their children from Lexington public schools for the 2007–2008
academic year, while the Parkers kept their children in the public schools
until the fall of 2008.131 Moreover, the Parkers had been negotiating with
the Lexington schools for almost a year before the Wirthlins moved to
town.132 And while the Parkers had no prior involvement in debates about
marriage for same-sex couples, it appears that the Wirthlins may have had
some connections to opposition organizations even before they moved to
The defendants had even more complex combinations of interests. In
addition to their claim against the Town of Lexington, the plaintiffs sued
twelve individuals in their various capacities as superintendents of the
Lexington schools, members of the Lexington School Committee, principal
of Estabrook Elementary School, coordinator of Health Education, and
classroom teacher at Estabrook.134 In addition to the parties, more than a
dozen amici signed on to briefs in the First Circuit.135 On the ground in
Lexington and across the Commonwealth of Massachusetts, community
groups weighed in to support the plaintiffs or the defendants, and some
groups had their own unique set of interests in the case.136 As the case
compromise . . . . I never saw any evidence, not even a hint, that there was any intention on the
part of these families to work out an agreement’”).
131. See Dan Aiello, Mass. Couple Pushes Prop 8, BAY AREA REP. (S.F.), Oct. 23, 2008, http://
www.ebar.com/news/article.php?sec=news&article=3414 (noting that the Wirthlins moved to
Hanscom Air Force Base); MassResistance, U.S. Supreme Court Turns Down David Parker’s
Appeal; Validates State’s Right to Teach Homosexuality to Young Children over Parents’
[hereinafter Aiello, Mass. Couple Pushes Prop 8] (last visited Feb. 28, 2010) (“This year the
Parkers removed both of their children from the Estabrook Elementary School and have been
home-schooling them. Last year the Wirthlins removed their children from the Lexington
132. See Aiello, Memo Links Mass. Couple, supra note 95 (noting that the Wirthlins moved
into town in 2005).
133. Id. (noting that Joseph Wirthlin’s uncle was involved in an earlier marriage battle in
California as a Mormon representative on a campaign committee and an internal pollster for
the “Yes on Prop 22” campaign; the Wirthlins were reportedly “involved with two groups
seeking to ban same-sex marriage” before they moved to Lexington; and the Wirthlins moved
into the district just weeks before filing suit with the Parkers).
134. Complaint and Jury Demand, supra note 20, at 1.
135. Parker v. Hurley, 514 F.3d 87, 89 (1st Cir. 2008), cert. denied, 129 S. Ct. 56 (2008).
136. At least one outside LGBT advocacy group perceived itself to be closely aligned with
the school district in the litigation. See Zachary Violette, Parkers, Writhlins [sic] Appeal Case to the
Supreme Court, NEW ENG. BLADE, June 25, 2008 (on file with the Iowa Law Review) (noting that
an attorney for Gay and Lesbian Advocates and Defenders says the organization would not file a
770 95 IOWA LAW REVIEW 
progressed, the constellations of parties and interests became increasingly
complex. At some point, this complexity outpaced the parties’ ability or
willingness to negotiate an amicable resolution of what had begun—at least
from David Parker’s perspective—as a simple request.
4. Parker Fall Out
The implications of the parties’ failure to negotiate a resolution of their
dispute continue to unfold. The Parker case provides a rhetorical link
between marriage for same-sex couples and perceived threats to the welfare
of children, and political interest groups have powerfully exploited that link.
For example, in hearings before the Connecticut General Assembly Judiciary
Committee regarding a bill that would extend marriage rights to same-sex
couples, a witness retold the story to support his conclusion that “[t]hese
basic losses of parental rights and freedom are a direct consequence of
legalized same-sex marriage in Massachusetts, opening the door to an
aggressive agenda of homosexual indoctrination of our youngest and most
Parker’s full political potential was revealed in the fall of 2008 as voters
in California considered Proposition 8, an amendment to the California
Constitution. Proposition 8 would restrict marriage to different-sex couples
and thereby reverse a ruling of the California Supreme Court which had
extended the right to marry to same-sex couples in May of 2008.138 The
proponents of the “Yes on 8” campaign decided early on to frame the
California Supreme Court’s ruling in the strongest possible terms:
“Whenever a conﬂict occurred between the rights of a gay couple and other
rights, the rights of the gay couple would prevail because of their ‘protected
class’ legal status.”139 Their greatest chance of success was to focus on the
“consequences” of same-sex marriage, particularly on public schools’
curricula. As explained by Frank Shubert, the architect of the “Yes on 8”
brief in opposition to Parker’s petition for certiorari: “‘We think it makes sense for [the school
district’s lawyers] to lead the charge on the opposition, because we don’t have anything
different that we want to argue’”).
137. Hearings, supra note 9 (testimony of Rick McGinnis).
138. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
139. Frank Schubert & Jeff Flint, Passing Prop 8: Smart Timing and Strategic Messaging
Convinced California Voters to Support Traditional Marriage, POLITICS, Feb. 2009, at 44, 45, available
at http://www.politicsmagazine.com/magazine-issues/february-2009/passing-prop-8/. This
statement is probably false as a matter of constitutional law. Although protected-class status
would likely invalidate almost every government classification on the basis of sexual orientation,
when other citizens asserted additional or competing constitutional rights that are also subject
to strict scrutiny or “compelling interest” analysis, it is not clear that the rights of same-sex
couples would always prevail. The California Supreme Court’s analysis applied to cases
challenging state action; its implications for cases involving private action by other individuals
or institutions are not obvious.
[W]e focused our message on education. We ran an ad featuring a
young Hispanic girl coming home from school, explaining how she
had learned in class that a prince could marry another prince, and
she could marry a princess! This ad was based on the actual
experience in Massachusetts, the only state in the nation where gay
marriage had been legalized long enough to see how it would be
handled by the public school system.
This was followed by another education ad, this one featuring a
Massachusetts couple whose son had been introduced to gay
marriage in second grade. The launch of that ad included a press
conference with the Massachusetts couple . . . .140
Although Proposition 8 opponents enlisted the help of education leaders to
explain that marriage in California would not have the impact on education
that the ads claimed, they were unable to diffuse the power of these
messages. Frank Schubert observed, “What they never did do, because they
couldn’t do, was contest the accuracy of what had happened in
The back-and-forth between Proposition 8 proponents and opponents,
Schubert explains, “foretold the ﬁnal period of the campaign—it would be
largely about education.”142 Indeed, even as the U.S. Supreme Court denied
his petition for certiorari, David Parker found solace in the fact that he
could say the “objective” of his lawsuit had been met: “We asked for parental
notification, and God has put us in the position to notify tens of millions of
Ultimately, Proposition 8 passed and same-sex couples in California lost
the freedom to marry that they had enjoyed for just four months.144
Causation is complex, but the Proposition 8 ads featuring the Parker case are
generally recognized as heavily influencing the result.145 Whether the parties
140. Id. at 46.
141. Id. at 47.
143. ‘Millions’ Warned About ‘Gay’ Indoctrination: Father Says Court Case Against Schools Reached
His Goal, WORLDNETDAILY, Oct. 10, 2008, http://www.wnd.com/?pageId=77632.
144. The couples who had married during the period of legality would not lose their status
as married couples, however. Maura Dolan, California High Court Upholds Prop. 8, L.A. TIMES,
May 27, 2009, available at http://articles.latimes.com/2009/May/27/local/me-gay-marriage27.
145. Schubert & Flint, supra note 139, at 47. The relationship between the Parker case and
Proposition 8 has apparently been lost on several people, however, as reflected in a February
2009 discussion at Wikipedia regarding a decision to delete the “David Parker controversy”
page: “Parents have issues with school districts and teachers all the time, and this is no different.
Very few sources and few changes ensued in the interim of this”; “interesting story, but of purely
local interest and thus outside our remit”; and “would suggest deletion without evidence of
some wider or longer-term impact.” See Wikipedia, Articles for Deletion: David Parker
772 95 IOWA LAW REVIEW 
to the lawsuit intended it or not,146 their inability or unwillingness to resolve
the dispute on a small scale, within the Estabrook Elementary School or the
Lexington community (as Judge Wolf urged), has caused ripple effects
throughout the country.147 Perhaps it is not too great a stretch to say that for
want of a mediator in Massachusetts, marriage for same-sex couples was lost
in California and Maine.148
C. STARTZELL V. CITY OF PHILADELPHIA
At their inception, the Parker and Peterson cases involved only a small
community of disputants. As the Parker conflict escalated, of course, the
number of people involved also grew to include the school superintendent,
the Estabrook Anti-Bias Committee, activist organizations supporting David
Parker, and the school officials. In contrast, the third paradigmatic case we
shall consider, Startzell v. City of Philadelphia, was from its very beginning a
controversy (last visited Feb. 28, 2010) (deciding to delete the page on David Parker for a
purported lack of national relevance).
146. Some reasons exist to believe that at least one party to the lawsuit did intend for the
case to have ripple effects. See Aiello, Memo Links Mass. Couple, supra note 95 (questioning
whether the Wirthlins really were “unintentional players in the debate,” and citing the couple’s
connection to a Mormon group that opposes same-sex marriage); Aiello, Mass. Couple Pushes
Prop 8, supra note 131 (noting that Joseph and Robin Wirthlin campaigned for passage of
California’s Proposition 8 and cited their experience in Massachusetts as a reason to abolish
marriage for same-sex couples in California). To view a video of the Wirthlins’ “Yes on Prop 8”
television commercial, see http://www.youtube.com/watch?v=WLHWBWSaW-4 (last visited
Feb. 28, 2010). The Wirthlins also actively campaigned in Florida to support Amendment 2,
which amended the Florida Constitution to prevent the creation or recognition of marriage for
same-sex couples. See James A. Smith, Sr., Massachusetts Parents Warn About Dangers of ‘Gay
Marriage’: Religious Liberty Concerns Raised at Tallahassee News Conference, FLA. BAPTIST WITNESS,
Oct. 30, 2008, available at http://www.floridabaptistwitness.com/9518.article.
147. Similar cases are occurring around the country; it is difficult to say whether or not they
relate to Parker v. Hurley. See Richard G. Jones, Film with Same-Sex Parents Splits School District, N.Y.
TIMES, Sept. 14, 2007, http://www.nytimes.com/2007/09/14/nyregion/14sex.html?ref=us
(comparing the schools’ approach in Novato, California, which allows parents to decide on an
individual basis whether their grade-school children will see a film depicting a family led by two
gay fathers, with the decision of a school district in Evesham, New Jersey, to pull the film
entirely from the curriculum); see also Jacobs, supra note 104 (noting that a lesbian couple
pulled their child from a Watertown, Massachusetts school after the school removed from
library shelves the book And Tango Makes Three, which depicts two male penguins becoming
mates and raising a baby penguin together). The Parker case has also spawned proposed
legislation in Massachusetts to mandate just the sort of notification the plaintiffs sought. Ethan
Jacobs, Bill Would Require Parental Notification for School Discussions of ‘Sexual Orientation Issues’, BAY
WINDOWS (Boston, Mass.), Feb. 12, 2009, available at http://www.baywindows.com/index.php?
148. This brings to mind the ancient proverbial verse: “[F]or want of a nail, the shoe was
lost; for want of a shoe the horse was lost; and for want of a horse the rider was lost, being
overtaken and slain by the enemy, all for want of care about a horse-shoe nail.” BENJAMIN
FRANKLIN, THE WAY TO WEALTH (1758), reprinted in POOR RICHARD’S ALMANACK: SELECTIONS
FROM THE PREFACES, APOTHEGMS, AND RIMES, WITH A FACSIMILE IN REDUCTION OF THE
ALMANACK FOR 1733, at 38, 50 (Benjamin E. Smith ed., New York, Century Co. 1898).
public dispute involving dozens—even hundreds—of people. In 2004, law
enforcement officials arrested an organized group of Christians for “ethnic
intimidation” under a Pennsylvania hate-crimes law because of their protests
at a Philadelphia gay-pride event.149 Although the hate-crimes charges
against them were eventually dropped, the protesters’ conflict with the City
of Philadelphia continued as they sued the City for alleged violations of their
civil rights.150 The sheer size and public nature of the case may have
prevented mediation from effectively resolving the dispute once it arose, but
Startzell is nonetheless a good example of the kind of case that could benefit
from mediation as a dispute prevention mechanism.
1. Startzell Facts
In 2004, an LGBT advocacy organization called Philly Pride sponsored
“OutFest,” an annual street festival to celebrate “National Coming Out
Day.”151 The purpose of the festival was to support and affirm LGBT
identity.152 It was free and open to the public.153 OutFest activities took place
within a predominantly gay neighborhood in Philadelphia and were spread
over fifteen city blocks.154 Philly Pride obtained a permit for the festival from
the City of Philadelphia Department of Streets Right-of-Way Unit.155 The
organizers of OutFest were aware that an anti-LGBT group, Repent
America,156 was likely to stage a protest at OutFest.157 OutFest organizers
therefore requested that the City exclude the protesters in order to protect
Philly Pride’s First Amendment right to “maintain the integrity of OutFest’s
The City denied Philly Pride’s request and informed Philly Pride that
law enforcement would allow anti-LGBT protesters inside the permitted
area.159 To shield OutFest attendees from the protesters, Philly Pride
recruited volunteers to link arms and form a “human buffer” between any
149. Startzell v. City of Phila., No. 05-05287, 2007 WL 172400, at *3 n.5 (E.D. Pa. Jan. 18,
2007), aff’d, 533 F.3d 183 (3rd Cir. 2008).
150. Id. at *3.
151. Id. at *1 (citing Pls.’ Summ. Uncontested Facts ¶ 2).
152. Id. (citing Pls.’ Summ. Uncontested Facts ¶ 1).
153. Id. (citing Prince Dep. 23).
154. Startzell, 2007 WL 172400, at *1 (citing Pls.’ Summ. Uncontested Facts ¶¶ 2, 6).
155. Id. at *1 n.2 (citing Prince Dep. 22).
156. Michael Marcavage, leader of Repent America, believes that he “must go to those who
would never come into our churches—to the atheists, to the religious, to the self-righteous, to
the God-hating and win their souls to Christ.” See Michael Marcavage, Repent America, About
Us, http://www.repentamerica.com/aboutus.html (last visited Feb. 28, 2010) (“We must lift up
our voice like a trumpet . . . and declare the Word of God . . . at the homosexual parades and
other sin celebrations, calling ‘all men every where to repent.’ (Acts 17:30).”).
157. Startzell, 2007 WL 172400, at *1 (citing Philly Pride Def.’s Mot. Summ. J. Ex. R).
158. Id. at *2 (citing Philly Pride Def.’s Mot. Summ. J. Ex. S).
159. Id. (citing Philly Pride Def.’s Mot. Summ. J. ¶ 29).
774 95 IOWA LAW REVIEW 
anti-LGBT protesters and the rest of the OutFest crowd.160 The City of
Philadelphia remained neutral and said that it would determine on-site
whether the actions of the protesters, and the use of such a human buffer by
Philly Pride, were permissible.161
On the morning of OutFest, the Philadelphia Police Department’s legal
advisor told “police officers that they were to protect the First Amendment
rights of everyone at the event.”162 The police officers were also instructed to
admit the protesters into the event despite Philly Pride’s request that they be
In the afternoon of October 10, 2004, a group of Christian protesters
(the plaintiffs) attended OutFest.164 The “[p]laintiffs carried bullhorns to
amplify their voices” and large signs with such messages as “‘Remember
Sodom and Gomorrha [sic]’” and “‘Prepare to Meet Thy God.’”165 The
protesters “did not seek or obtain a permit to conduct any expressive
activities at the OutFest location.”166
“[P]ink-shirted Philly Pride volunteers met the plaintiffs [at an entrance
gate,] linked arms, and formed a human barrier to prevent the plaintiffs
from entering [OutFest].”167 When police ordered the Philly Pride
volunteers to allow the plaintiffs into the event and threatened to arrest any
volunteers who did not comply with the order to move, the Philly Pride
volunteers complied with the police request.168
Plaintiffs entered OutFest and began to use bullhorns to “convey their
message” about twenty yards from the event’s main stage.169 “The Philly
Pride volunteers surrounded the plaintiffs[, held] ten-foot high pink
Styrofoam boards shaped like angels at the top[, and blew] whistles.”170 A
police officer “instructed the plaintiffs to move down the street so they
would not block the stage once the musical program began.”171 The
plaintiffs complied and the officer walked down the street with them.172
“The Philly Pride volunteers followed with their [Styrofoam boards] and
160. Id. (citing Philly Pride Def.’s Mot. Summ. J. ¶ 31).
161. Id. (citing Philly Pride Def.’s Mot. Summ. J. ¶ 32).
162. Startzell, 2007 WL 172400, at *2 (citing Philly Pride Def.’s Mot. Summ. J. ¶ 34; Roll Call
163. Id. (citing Roll Call Video).
164. Id. (citing Pls.’ Summ. Uncontested Facts ¶ 11).
165. Id. at *2 n.4 (citing Municipal Defs.’ Statement Undisputed Facts ¶ 6).
166. Id. at *2 (citing Marcavage Dep. 217–18).
167. Startzell, 2007 WL 172400, at *2 (citing Pls.’ Summ. Uncontested Facts ¶ 13).
168. Id. (citing Simmons Dep. 60; OutFest Video).
169. Id. at *3 (citing Pls.’ Summ. Uncontested Facts ¶ 19; Fisher Dep. 67–68).
170. Id. (citing Pls.’ Summ. Uncontested Facts ¶¶ 20–21).
171. Id. (citing Pls.’ Summ. Uncontested Facts ¶¶ 24–25).
172. Startzell, 2007 WL 172400, at *3 (citing Pls.’ Summ. Uncontested Facts ¶¶ 24–25).
continued to surround the plaintiffs.”173 Emotions were running high
among the crowd of onlookers, according to police officers.174
The police told plaintiffs they had to move again, this time “because
they were blocking attendees’ access to the vendors’ booths” that were part
of the festival.175 A police officer ordered plaintiffs to move to “an area on
the perimeter of OutFest near a large gay bar named ‘Woody’s,’ a popular
event location.”176 Plaintiff Michael Marcavage, who was leading the plaintiff
protesters, responded that the group was not leaving the event; Marcavage
then instructed plaintiffs to move in a direction contrary to the police
orders.177 Police Chief James Tiano “ordered that the police place the
plaintiffs under arrest for disorderly conduct, disobeying the order of a
police officer, and related charges.”178 The plaintiffs were arrested less than
a half hour after they had arrived at OutFest.179
2. Startzell Law
In granting the defendants’ motions for summary judgment, Judge
Stengle explained that his decision turned in large measure upon the fact
that Philly Pride had applied for and obtained a permit for its event; he
wrote: “Permitting schemes have long been recognized as a content neutral
method for allocating free speech rights in the public forum.”180 Rather
than representing an infringement of the plaintiffs’ First Amendment rights,
the permit system “prevent[ed] diverse groups with different messages from
expressing their views simultaneously, thus creating ‘a cacophony where no
one’s message is heard. . . . [O]ne individual,” the judge wrote, “has no right
to drown out the message of another.”181 Judge Stengle distinguished permit
granting, which requires content-neutrality, from permit enforcement, which is
not content-neutral because government may “protect the permitted
message even if this excludes other messages.”182 The plaintiffs’ right of
expression was not absolute, but was subject to time, place, and manner
regulation by the state to allow Philly Pride’s expression.183 The district
173. Id. (citing Municipal Defs.’ Statement Undisputed Facts ¶ 9).
174. See id. (citing Fisher Dep. 85–87) (characterizing “the crowd as volatile and irate”).
175. Id. (citing Pls.’ Summ. Uncontested Facts ¶ 28).
176. Id. (citing Pls.’ Summ. Uncontested Facts ¶ 34; Tiano Dep. 78–80).
177. Startzell, 2007 WL 172400, at *3 (citing Municipal Defs.’ Statement Undisputed Facts
¶¶ 37–41; Marcavage Dep. 354–55).
178. Id. (citing Municipal Defs.’ Statement Undisputed Facts ¶ 29).
179. Id. (citing Municipal Defs.’ Statement Undisputed Facts ¶¶ 43, 45).
180. Id. at *6 (citing Cox v. New Hampshire, 312 U.S. 569 (1941)).
181. Id. (citing Schwitzgebel v. City of Strongsville, 898 F. Supp. 1208, 1217 (N.D. Ohio
182. Startzell, 2007 WL 172400, at *6 (footnote and citation omitted).
183. Id. at *7. In the course of its opinion, the court cited several cases in which time, place,
and manner restrictions had excluded or blocked pro-gay protesters from events. See, e.g.,
Hurley v. Irish-Am. Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 559–60 (1995)
776 95 IOWA LAW REVIEW 
court dismissed the case, and the plaintiffs appealed to the Third Circuit.184
Despite the fact that the Third Circuit has an appellate-mediation program
(like those in the Ninth and First Circuits, deployed in the Peterson and
Parker cases, respectively), at no point in all of the court proceedings were
the parties invited to mediate.185
3. Startzell Negotiations—What Went Wrong
The fact that the plaintiffs’ expression was subject to such regulation
created an opportunity for negotiation. One cannot help but wonder
whether reasoned, forward-thinking conversation prior to the event might
have prevented the OutFest confrontation. Timing was critical in the Startzell
case, and unfortunately too much of the interaction occurred when crowds
were present, the events were being filmed, emotions were running high,
and dialogue was next to impossible. Indeed, a transgendered festival
attendee may have captured the character of the entire incident when she
repeatedly asked one of the protesters, Mark Diener, to talk to her “without
the megaphone.”186 Though the City cast itself as the neutral on-site
mediator, involved only to balance the speech rights of both the protesters
and the permit holder, mediating any actual negotiation was next to
impossible at the festival that day. As Jeremy Frey, counsel for Philly Pride,
acknowledged, the whistles blown by his client’s volunteers “were effective”;
“tensions would have risen because of the commotion” and the atmosphere
“would have remained uncomfortable” if the plaintiffs had not been arrested
as quickly as they were.187
Still, it is clear that the OutFest confrontation was foreseeable. Michael
Marcavage, a leader of the plaintiff protesters, was well known to
Philadelphia police, having already clashed with police officers about his
open-air preaching on at least seven occasions prior to the OutFest
incident.188 Some of the plaintiff protesters had attended and disrupted
(refusing to compel a private-event organizer to include a group of gay, lesbian, and bisexual
descendants of Irish immigrants in an annual St. Patrick’s Day parade because the parade
organizers had the right to exclude messages with which they did not agree); Schwitzgebel, 898 F.
Supp. at 1217 (holding that plaintiffs who were protesting President George H. Bush’s inaction
on AIDS research and funding were properly excluded from a Bush–Quayle rally).
184. Startzell v. City of Phila., 533 F.3d 183 (3d Cir. 2008).
185. Telephone Interview with Jeremy Frey, Partner, Pepper Hamilton, LLP (Mar. 3, 2008).
186. This exchange was caught on film and may be viewed at http://www.youtube.com/
watch?v=snCyv3NRGEQ&mode=related&search (last visited Feb. 28, 2010).
187. Telephone Interview with Jeremy Frey, supra note 185.
188. See Marcavage v. City of Phila., No. 04-4741, 2006 U.S. Dist. LEXIS 55643, at *2–6 (E.D.
Pa. Aug. 3, 2006) (discussing the numerous encounters Marcavage had with police because of
his “open-air preaching”).
earlier LGBT-affirmative events.189 The organizers of Philly Pride expected
plaintiffs to attend OutFest.190
But the City determined that the Repent America protesters could not
be excluded entirely from OutFest, an event on city streets, in public spaces,
open to the public.191 The challenge was to insure that Philly Pride, which
had applied for and been granted a permit to conduct its event, would be
able to convey its gay-affirmative message without undue disruption by
plaintiffs. So the City took a “‘wait and see’ approach” to the potential clash
between the Repent America protesters and OutFest participants: “the
municipal defendants gave equal consideration to the First Amendment
rights of both the plaintiffs and Philly Pride defendants and refused to
preemptively stop the speech of either party until it became unlawful.”192
Unfortunately, the “wait and see” approach did not necessarily serve the
interests of Philly Pride, the protestors, or the City.193 As the plaintiffs
entered the festival, “Captain William Fisher, . . . the commanding officer of
the civil affairs unit, told plaintiff Marcavage that he didn’t want any
‘silliness,’”194 which he later explained to mean that he “‘didn’t want
[Marcavage] to get into a situation where I have to save him and he started
getting beat up.’”195 This attempt to express to plaintiffs the City’s concern
for safety was inadequate at best and insulting at worst. By describing a
violent reaction to the plaintiffs’ sincere religious expression as “silliness,”
the captain, who might have served a mediative role under the right
circumstances, instead created or exacerbated an atmosphere of contention
and distrust between the protesters and the city officials on site. Although
189. Startzell v. City of Phila., No. 05-05287, 2007 WL 172400, at *1 (E.D. Pa. Jan. 18, 2007),
aff’d, 533 F.3d 183 (3rd Cir. 2008) (“[S]ome of the plaintiffs had attended the SundayOut street
festival on May 2, 2004 and the Philadelphia Gay Pride Parade on June 13, 2004.”) (citing Philly
Pride Defs.’ Statement Uncontested Facts ¶¶ 11, 17).
190. Startzell v. City of Phila., 533 F.3d 183, 189 (3d Cir. 2008) (commenting that Michael
Marcavage “was quoted in the Philadelphia Gay News as saying, ‘it’s our hope that OutFest will
come to an end’”).
191. Startzell, 2007 WL 172400, at * 2 (citing Philly Pride Defs.’ Statement Uncontested
Facts ¶ 29).
192. Id. at *19.
193. I say “necessarily” because it seems possible that one or both of the parties might have
had interests that were not expressed prior to the event. Michael Marcavage, for example, may
have had an interest in bringing public notice to the conflict between LGBT rights and some
forms of religious expression. By taking an adversarial approach to the Outfest encounter
rather than a cooperative and problem solving approach, he increased the likelihood of his own
arrest and the public attention it has succeeded in attracting. See supra notes 164–79 and
accompanying text. For its part, Philly Pride might have had an interest in as quick an exit as
possible for the plaintiff protesters. By cooperating and planning for the attendance of the
protesters at OutFest, Philly Pride might have found itself “stuck” with the plaintiffs for the
entirety of the festival; by taking an adversarial approach, Philly Pride facilitated the escalation
of the conflict in ways that led more quickly to the arrest and ouster of the plaintiff protesters.
194. Startzell, 2007 WL 172400, at *2 (citing Pls.’ Summ. Uncontested Facts ¶ 15).
195. Id. (citing Fisher Dep. 51) (alteration in original).
778 95 IOWA LAW REVIEW 
the interactions between city officials and Marcavage were mutually
respectful, polite vocal tones could not compensate for the essential
contentiousness of the environment in which they occurred.
4. Startzell Fall Out
Commentators regularly cite the case of the “Philadelphia 11” as an
example of the way Christianity will be “criminalized” in any regime that
recognizes LGBT rights.196 The element of the case that feeds this
interpretation most powerfully is the district attorney’s decision to charge
the protesters with a hate crime—“ethnic intimidation.” The sad irony of
this situation is that the director of Pennsylvania’s only LGBT legal-assistance
organization begged the district attorney not to bring the hate-crime
charge.197 In this case, gay-rights advocates may have been less aggressive
than the third parties who purported to represent the public interest.
III. WHY MEDIATION?
Songwriter Amos Lee has written, “Freedom is seldom found / By
beatin’ someone to the ground / Tellin’ them how everything is gonna be
now.”198 His ballad provides a powerful counter thesis to the belief that
enforcing civil rights always requires public and definitive adjudication. To
be sure, citizens look to and sometimes struggle to obtain legislation or
court rulings that clearly articulate their rights. In the wake of such
declarations, however, interested parties often must undertake a long and
painful process of negotiation, a working out of the contours of the civil
right that a legislature or court has articulated. Freedom, then, comes not in
“tellin’ them how everything is gonna be,” but in collaborating as equals
about how the interests of diverse citizens can be accommodated and
reconciled in particular factual contexts, once a legislature or court
articulates a right or set of rights.
Mediation can effectively facilitate that conversation. The purpose of
Part III.A, therefore, is to provide a brief primer on mediation. This Part will
196. See JANET L. FOLGER, THE CRIMINALIZATION OF CHRISTIANITY: READ THIS BOOK BEFORE
IT BECOMES ILLEGAL 129 (2005) (quoting Brian Fahling, Senior Trial Attorney for the American
Family Association Center for Law and Policy, as saying, “If you are a Christian on the streets of
Philadelphia and dare to publically express a biblical viewpoint, a jail cell awaits you”); Robert
Knight, Philadelphia Police Arrest 11 Christians for ‘Hate Crimes’ at Homosexual ‘Outfest’, CONCERNED
WOMEN OF AMERICA, Oct.13, 2004, http://www.cwfa.org/articles/6522/CFI/family/index.htm
(quoting Marcavage as saying, “‘They’re criminalizing Christianity through this homosexual
197. Stacey Sobel, former executive director of Equality Advocates Pennsylvania, stated that
she asked the district attorney not to charge the protesters with a hate crime, but the district
attorney ignored her pleas. Stacey Sobel, Address at the Tulane Journal of Law and Sexuality
Symposium: Beyond Marriage: The Broader Implications and Unforeseen Consequences of
State Defense of Marriage Acts (Feb. 13, 2009).
198. AMOS LEE, Freedom, on SUPPLY AND DEMAND (Blue Note Records 2006).
highlight some specific attributes of mediation that make it promising for
resolving conflict between gay rights and religious liberty.
A. A PRIMER ON MEDIATION
Although models and theories of mediation abound, mediation is, most
fundamentally, negotiation facilitated by a neutral third party.199 Most
mediators begin by meeting with the parties—sometimes in joint session,
sometimes in separate, confidential meetings called “caucuses”—to hear
their stories and begin to understand the dispute from each perspective.
The mediator then works with the parties to identify the issues in the dispute
and the interests each party has with respect to those issues. Primarily on the
basis of these issues and interests, the mediator helps the parties generate
and assess options for resolving the dispute. Finally, the mediator helps the
parties craft an agreement that resolves the issues in a manner that is
mutually acceptable to the parties. The mediator does not decide the case
for the parties, but facilitates the parties’ own voluntary and consensual
In the process of facilitating negotiation, as Stephen Doyle and Roger
Haydock enumerate, mediators perform a variety of functions, including
caucusing with the parties, exchanging information, maintaining civility,
encouraging communication, and proposing an innovative remedy.200
Howard Raiffa similarly notes that third-party intervention (such as
mediation) can assist negotiators by “bringing parties together,” “collecting
and judiciously communicating selected confidential material,” “helping the
parties to clarify their values,” “deflating unreasonable claims and loosening
commitments,” “seeking joint gains,” “keeping negotiations going,” and
“articulating the rationale for agreement.”201
Mediators differ in styles and orientations. Some caucus all the time;
others never do. Some encourage the parties to define broadly the issues at
stake in their disputes; others help the parties focus more narrowly on
199. Jennifer Gerarda Brown & Ian Ayres, Economic Rationales for Mediation 80 VA. L. REV.
323, 323 (1994); Leonard Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques:
A Grid for the Perplexed, 1 HARV. NEGOT. L. REV. 7, 11 (1996) (“Nearly everyone would agree that
mediation is a process in which an impartial third party helps others resolve a dispute or plan a
transaction.”); see also CARRIE MENKEL-MEADOW, MEDIATION: THEORY, POLICY AND PRACTICE xiii–
xvii, xxix (2001) (listing core functions of mediation, including “develop[ing] solutions to
problems . . . on terms of mutual agreement and fairness to the parties” and “facilitat[ing]
mutual understanding and apprehension of the other parties’ needs, interests and situations”).
200. STEPHEN P. DOYLE & ROGER S. HAYDOCK, WITHOUT THE PUNCHES: RESOLVING DISPUTES
WITHOUT LITIGATION 89–90 (1991).
201. HOWARD RAIFFA, THE ART AND SCIENCE OF NEGOTIATION 108–09 (1982); see also LINDA
R. SINGER, SETTLING DISPUTES: CONFLICT RESOLUTION IN BUSINESS, FAMILIES, AND THE LEGAL
SYSTEM 20 (1990) (listing the many functions of the mediator, including “soothing ruffled
feelings,” “acting as a neutral discussion leader and ensuring that all the parties have ample
opportunity to speak,” and “keeping negotiations going when the parties are ready to give up”).
780 95 IOWA LAW REVIEW 
specific points for decision. Some mediators are highly directive with respect
to process (e.g., they direct parties to move from one phase of the process to
the other); others are directive with respect to substance (e.g., they express
opinions about the likely adjudicative outcome of the case or render an
opinion about a reasonable deal point). Some mediators adamantly refuse
to weigh in on either front, choosing instead to “follow the parties” and
attend to potential positive developments in the parties’ relationship as they
Goals of mediators vary widely as well. While many mediators see
settlement as the most important and perhaps solitary goal, others strive to
deepen the parties’ mutual understanding, improve the quality of their on-
going relationship, or even enhance each party’s sense of personal strength
and empathy. Lon Fuller recognized many years ago that sometimes:
[T]he proper function of the mediator turns out to be, not that of
inducing the parties to accept formal rules for the governance of
their future relations, but that of helping them to free themselves
from the encumbrance of rules and of accepting, instead, a
relationship of mutual respect, trust and understanding that will
enable them to meet shared contingencies without the aid of
formal prescriptions laid down in advance.203
B. THE ATTRIBUTES OF MEDIATION THAT ENABLE IT TO RESOLVE DISPUTES
BETWEEN GAY RIGHTS AND RELIGIOUS LIBERTIES
As the preceding Part suggests, mediation involves a complex set of
skills and activities on the part of the mediator, the parties, and their lawyers
(if present) to bring a dispute to resolution. This Part focuses on four key
capabilities of mediation: (1) addressing psychological barriers to
agreement, (2) fostering understanding and complicating parties’
essentialist views of each other, (3) focusing on the parties’ ongoing
relationship, and (4) dovetailing the parties’ different, but often
1. Mediation Addresses Psychological Barriers to Agreement
Because mediation facilitates conversation between two or more parties
in conflict, it gives people a chance to verbalize and sometimes to revise the
way they are thinking about the conflict. Negotiation theorists and
practitioners have long understood that the greatest barrier to resolving
conflict is often the way parties think about the dispute rather than the
202. ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: THE
TRANSFORMATIVE APPROACH TO CONFLICT 111 (rev. ed. 2005).
203. Lon L. Fuller, Mediation—Its Forms and Functions, 44 S. CAL. L. REV. 305, 325–26 (1971).
dispute’s inherent or objective facts.204 If conversation with the mediator or
adversary can shift the parties’ thinking, even subtly, it may be possible to
resolve the conflict to the satisfaction of everyone involved without undue
compromise of the values and interests the parties bring to the table.
Disputes involving gay rights and religious liberties tend to involve several of
the biases and heuristics that psychologists identify as barriers to negotiated
agreement. This Part discusses attribution error, partisan perceptions
(including the important role identity-threatening information plays), and
a. Attribution Error
“I don’t trust a man who uses the word evil eighteen times in ten
minutes. . . . If you’re half-evil, nothing soothes you more than to think the
person you are opposed to is totally evil.” 205
When people find themselves in conflict, they have choices about how
they interpret events. Attribution theory focuses on this process of
interpretation. As Gabriella Blum and Robert Mnookin explain, the
“fundamental attribution error . . . relates to the human tendency, when
evaluating the conduct of others, to exaggerate the importance of character
and to underestimate the influence of context.”206 Thus, when people fall
prey to the attribution error, they attribute an event or result to their
opponent’s “dispositional characteristics” rather than “situational
characteristics.”207 As Russell Korobkin explains, “[d]ispositional
characteristics concern the character or personality traits of the actor who
has created the negative situation” and are “associated with individual
control or agency.”208 While we usually assume that people can control their
own dispositional characteristics, situational characteristics stem from
conditions that are not chosen and give rise to “consequences . . . beyond
the actor’s control.”209
Thus, in many negative situations, a person who has suffered harm
makes an interpretive choice: will she see the harm as (1) the result of
204. See ROBERT H. MNOOKIN, SCOTT R. PEPPET & ANDREW S. TULUMELLO, BEYOND
WINNING: NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES 156–67 (2000) (noting that
parties often violate “basic axioms of rationality” by failing to enter into agreements that would
rationally serve their own best interests).
205. Great Impact of Attacks on America, BBC NEWS, Apr. 2, 2002, available at http://news.bbc.
co.uk/1/hi/events/newsnight/1801121.stm (quoting Norman Mailer) (emphasis added).
206. Gabriella Blum & Robert H. Mnookin, When Not to Negotiate, in THE NEGOTIATOR’S
FIELDBOOK: THE DESK REFERENCE FOR THE EXPERIENCED NEGOTIATOR 101, 109 (Andrea Kupfer
Schneider & Christopher Honeyman eds., 2006).
207. Russell Korobkin, Psychological Impediments to Mediation Success: Theory and Practice, 21
OHIO ST. J. ON DISP. RESOL. 281, 299 (2006).
782 95 IOWA LAW REVIEW 
qualities, characteristics, and choices within another person’s control, (2)
the unintended consequence of factors beyond another person’s control, or
(3) some combination of the two? This interpretive choice has a significant
effect on the conflict because it can so directly affect emotions. Russell
Korobkin observes that “feelings of being disrespected, demeaned, or
otherwise treated unfairly,” that would so naturally arise from tangible harm
within someone else’s control, would be far less likely to flow from harm that
appears “beyond the harmdoer’s control.”210
The fundamental attribution error focuses on the distinction between a
disputant’s perception of dispositional and situational characteristics—of
“character” and “context,” to borrow Blum and Mnookin’s rubric.211 One
way of describing the error is that when people suffer harm, they attribute
that harm to a particular element of their adversary’s personality or
character—almost always a negative one. “If I am suffering,” the thinking
goes, “it must be because someone doing me harm intends for me to suffer.”
The notion that the harm-doer intended something entirely different from
the harm suffered does not as quickly occur to the disputant. The disputant
thus needs debiasing (in whatever form it might eventually take) to see that
her adversary had benign rather than malignant motivations, and that the
harm she is suffering stems from conditions outside the other’s control.
In conflicts between gay rights and religious liberty, individuals on all
sides of the conflict may attribute harm they are suffering to a malevolent
motivation—disrespect, hatred, or a desire to eliminate or silence a group of
people. This can make it difficult even to come to the table to negotiate, as
Blum and Mnookin explain more generally:
We have often observed a tendency by parties to a conflict to place
undue emphasis on the moral dimension of the conflict while
underestimating the importance of more tangible interests. This
occurs both with respect to themselves and to the other party. The
rivalry will tend to be framed almost exclusively in terms of good vs.
evil, truth vs. falsehood, justice vs. wrongfulness. In judging others,
character may be emphasized at the expense of context. There may
be a reluctance to acknowledge the degree to which material and
tangible interests (as opposed to “morality” or character) are
determining the behavior of both sides.212
With the increased understanding of another’s perspective that can result
from constructive conversation, people who have suffered harm might see
that their adversaries actually have benign motivations toward them. At
210. Id. at 300.
211. See Blum & Mnookin, supra note 206, at 109–10 (stating that, “when evaluating the
conduct of others,” it is natural human tendency “to exaggerate the importance of character
and to underestimate the influence of context”).
212. Id. at 110.
worst, they might discover that their adversaries’ motivations have nothing to
do with them; the harm-doer may be focused on a goal entirely independent
of the person who has been harmed.
Attribution theory has generated spin-offs, including the “group
attribution error,” a bias that mirrors the fundamental attribution error
except that it attributes attitudes to members of different groups rather than
different individuals.213 When this bias affects thinking, group members are
more likely to attribute a fellow group member’s actions to situational
characteristics, while attributing a non-group member’s actions to the
inherent dispositional characteristics of the group to which the actor
It is easy to see how this could affect conflicts between people who self-
identify as LGBT (or their allies) and people who self-identify as orthodox or
evangelical Christians. One of the great challenges in the conflict between
gay rights and religious liberty is that some advocates in the public sphere,
purporting to represent one side or the other, have attributed to the other
side very sinister characteristics and motivations.215 Some LGBT advocates
claim that the ultimate motivation of people who oppose gay rights on
religious grounds is to eliminate gay people altogether.216 Meanwhile, some
writers and advocates promoting religious liberty claim, first, that a
“homosexual agenda” exists and, second, that one of the items on that
agenda is to “criminalize Christianity” or destroy the traditional nuclear
family.217 One might respond, correctly I think, that this sort of attribution
by either side is often a rhetorical device, deliberately exaggerated to
frighten an audience and motivate it to give money or time to a cause.
Whether individuals in conflict actually absorb these claims and consciously
attribute these malevolent motivations to the other side is an open question.
But it is certainly plausible that as media and advocacy groups on both sides
213. Scott T. Allison & David M. Messick, The Group Attribution Error, 21 J. EXPERIMENTAL
SOC. PSYCHOL. 563, 564 (1985).
214. Id. at 576–77.
215. See, e.g., Tom Barrett, John Edwards Loses His Party’s Nomination, WEBCOMMENTARY, Oct.
1, 2007, http://www.webcommentary.com/php/ShowArticle.php?id=barrettt&date=071001
(“America’s parents need to realize that homosexual activists are very serious about taking over
our schools and brainwashing our children. They want to indoctrinate our kids with the lie that
homosexuality is normal and healthy, and that anyone (including their parents) who believes
differently is a homophobic bigot.”).
216. See, e.g., Eve Kosofsky Sedgwick, How to Bring Your Kids Up Gay, 29 SOC. TEXT 18, 23
(1991) (describing the “unimaginably large” scope of institutions trying to prevent “the
development of gay people”); Lynne Duke, A Pre-Birth Determination?, WASH. POST, Mar. 18,
2007, at D01, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/03/
17/AR2007031701162.html (noting that a Southern Baptist leader thought that if prenatal
testing could reveal that a fetus is gay, parents might be able to “treat” the child before it is
born, and then pointing out that LGBT advocates decry this as manipulation of nature to
“‘basically wipe out gay people’” (quoting Wayne R. Besen)).
217. See, e.g., FOLGER, supra note 196, at 85.
784 95 IOWA LAW REVIEW 
perpetuate the idea that conservative Christians and LGBT advocates are
fundamentally at odds, they will reinforce the inherent tendency of
individuals within these groups to fall prey to the attribution error at both
the individual and group level.
Debiasing of attribution error is, unfortunately, difficult to do.
Mediators can explain to the parties what the attribution error is and how it
might be affecting their perceptions of each other. At least one study has
found such interventions to be effective.218 The parties may need to talk
about what is truly motivating the actors on both sides.219 For example, a
religious objector might explain that he was motivated by concern for his
child rather than hostility toward gay people. In another case, a proponent
of a gay-friendly employment policy might explain that, rather than
intending to silence religious objectors, he was concerned about the comfort
and safety of LGBT employees. They may also need to analyze the
surrounding conditions that cause benign motivations to result in harm.
But, as Russell Korobkin cautions, attempts to ameliorate the attribution
error can sometimes backfire:
The problem is that parties who already think badly of their
adversary often respond to the explanations and description of
intentions provided by that adversary with additional uncharitable
attributions. This is hardly surprising in light of another finding of
social psychology: that our expectations of how others will act
influence our understanding of their behavior. Thus, after hearing
his adversary’s woeful tale of situational constraints, the listening
party might now believe not only that his adversary is a malicious,
evil, indifferent jerk, but that he is a liar as well.220
Korobkin suggests that an apology can help to diffuse this sort of anger and
distrust so that negotiations can proceed.221
One take-home point from the foregoing discussion is that the context
for conflicts between gay rights and religious liberty is one in which public
advocates often ascribe hostile, even destructive, motivations to the other
side. It would be quite understandable if individuals on the ground were to
adopt some of these beliefs before their individual conflicts arise, and
certainly before they begin to negotiate. Mediation’s ability to uncover and
possibly disabuse parties of their assumptions may be an especially important
218. Mei-whei Chen et al., Deconstructing Dispositional Bias in Clinical Inference: Two
Interventions, 76 J. COUNSELING & DEV. 74, 78–79 (1997).
219. Keith G. Allred, Anger and Retaliation in Conflict: The Role of Attribution, in THE
HANDBOOK OF CONFLICT RESOLUTION 236, 250–51 (Morton Deutsch & Peter T. Coleman eds.,
2000) (arguing that people whose actions have a negative effect should explain their behavior
to make others aware of mitigating factors).
220. Korobkin, supra note 207, at 305–06 (citations omitted).
221. Id. at 306.
quality in the generally poisonous atmosphere that surrounds the conflict
pitting gay rights against religious liberty.
b. Partisan Perceptions
A major hurdle to dispute resolution is shifting the parties’ subjective
view of their conflict to a more objective one. First, however, the mediator
and the parties need to understand those subjective views. As Roger Fisher
and his coauthors argue, “the key aspects of [a] dispute are determined by
what is going on in the heads of the parties, not by some objective set of
facts,” so, “understanding how the parties see a conflict is invaluable when
trying to influence them.”222 “In the end,” Fisher and his colleagues say, “the
parties’ perceptions—of history, the current situation, the various courses of
action open to them and the relative attractiveness of those options—are the
Litigation does a poor job of addressing partisans’ perceptions of their
conflict—a fundamental obstacle to agreement. Litigation uses the
adversarial process to “find facts”—that is, to establish a set of theoretically
objective facts to which the law can be applied.224 The parties may never
share the court’s perception of facts and thus may continue to resist the
legal conclusions that ensue. Mediation, on the other hand, uses a
cooperative process of conversation to elucidate each party’s distinct
perception of the facts and to develop understanding between the parties
about the ways their perceptions differ. Even if these different perceptions
persist, the process challenges the parties to agree upon a shared course of
action moving forward that makes allowances for those different
perceptions. Each party can continue to reject the other’s perceptions of
past facts, but their mutual agreement regarding the future can give them a
basis for moving forward, having “agreed to disagree” about what came
The problem of partisan perceptions in conflicts between gay rights and
religious liberty may be particularly acute because often, before they even
encounter their future adversaries, people see themselves as part of a group
likely to come into conflict with members of the other group. When people
in conflict align themselves with one side or the other, they often begin to
222. ROGER FISHER, ANDREA KUPFER SCHNEIDER, ELIZABETH BORGWARDT & BRIAN GANSON,
COPING WITH INTERNATIONAL CONFLICT: A SYSTEMATIC APPROACH TO INFLUENCE IN
INTERNATIONAL NEGOTIATION 46 (1997).
224. See DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 57, 70–71 (1988)
(describing the structure of the adversary system as a “fission of adjudication into a clash of one-
sided representations” and questioning whether the search for truth is an adequate justification
for the adversarial system).
786 95 IOWA LAW REVIEW 
filter facts according to their own affiliations.225 Sometimes this involves
attribution error, but it can also involve a kind of filtering that assimilates
some facts but not others. Partisans will note and attach great weight to the
facts that support their side and ignore or downplay the facts that cut against
them.226 Thus, before they have even begun to process it, people’s location
on one side or another in a conflict can strongly affect their perception of
Thus, social psychologists have repeatedly found that partisans on hot-
button issues such as capital punishment or abortion can display “standard
information assimilation biases by accepting belief-congruent information at
face value, resisting belief-incongruent evidence, and becoming more
polarized in their views when exposed to mixed evidence.”227 George
Lowenstein and fellow researchers demonstrated this phenomenon in a
series of experiments.228 The researchers had subjects play either plaintiff or
defendant in a negotiation simulation.229 The researchers gave all subjects
an identical fact pattern.230 After the simulation, the subjects wrote down all
the facts that favored their side and all the facts that favored their
adversary.231 The subjects were able to remember significantly more facts for
their side than for the other side.232
Although the parties may never see the facts similarly, a mediator may
help them understand how the case looks from the other perspective and
how words or actions intended in one way take on a completely different
meaning in the mind of the adversary. As with attribution error, a mediator
might seek to mitigate the bias that results from partisan perceptions by
discussing the bias with the parties—even describing some of the
experimental literature. In addition, as Russell Korobkin suggests, the
225. Sheila Heen & Douglas Stone, Perceptions and Stories, in THE NEGOTIATOR’S FIELDBOOK:
THE DESK REFERENCE FOR THE EXPERIENCED NEGOTIATOR 343, 344 (Andrea Kupfer Schneider &
Christopher Honeyman eds., 2006).
227. See generally Geoffrey L. Cohen, David K. Sherman, Anthony Bastardi, Lillian Hsu,
Michelle McGoey & Lee Ross, Bridging the Partisan Divide: Self-Affirmation Reduces Ideological
Closed-Mindedness and Inflexibility in Negotiation, 93 J. PERSONALITY & SOC. PSYCHOL. 415 (2007)
(summarizing Geoffrey L. Cohen, Joshua Aronson & Claude M. Steele, When Beliefs Yield to
Evidence: Reducing Biased Evaluation by Affirming the Self, 26 PERSONALITY & SOC. PSYCHOL. BULL.
228. George Loewenstein et al., Self-Serving Assessments of Fairness and Pretrial Bargaining, 22 J.
LEGAL STUD. 135, 146 (1993) [hereinafter Loewenstein et al., Self-Serving Assessments]; Leigh
Thompson & George Loewenstein, Egocentric Interpretations of Fairness and Interpersonal Conflict,
51 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 176, 189–90 (1992).
229. Loewenstein et al., Self-Serving Assessments, supra note 228, at 145.
231. Id. at 146.
232. Loewenstein et al., Self Serving Assessments, supra note 228, at 150–51. Loewenstein and
coauthor Leigh Thompson found similar results in the context of negotiation over a collective-
bargaining agreement. Thompson & Loewenstein, supra note 228, at 176, 189–90.
mediator could caucus with the parties privately to go over their cases and
highlight vulnerabilities.233 The mediator could ask each party to list
weaknesses associated with his or her case or reasons that his or her
“prediction concerning a future event might be wrong.”234 In addition,
mediators can ask lawyers to imagine what the opposing side will argue as a
way of articulating the potential weak points in a party’s case and helping
them to see facts and law that they might be otherwise inclined to ignore.235
In joint sessions, mediators might facilitate a process of “role reversal” in
which each side articulates the way it imagines the dispute might look from
the other side’s perspective.236
Geoffrey Cohen and several coauthors recently published the results of
four studies that suggest another promising approach.237 They found that
standard assimilation biases were reduced when partisans were asked to
think about “an important personal value” or when partisans received
positive feedback about a valuable skill prior to hearing evidence or
argument counter to their views.238 With this intervention, subjects were
more likely to hear and assimilate evidence that threatened their belief
In all of the studies, Cohen manipulated “the salience of an identity that
would be relevant either to the later review of a persuasive report or to
participation in a negotiation.”240 In two studies about patriotism and
receptivity to anti-American information, the relevant aspect of identity was
the subject’s self-concept as a patriotic U.S. citizen.241 In two other studies
that measured willingness to make concessions on simulated legislation that
would restrict access to abortion, belief about abortion was the salient aspect
Cohen also manipulated self-affirmation so that “participants either
affirmed a personal value irrelevant to the pertinent political domain or
were exposed to a threat to such a value.”243 The subjects read a list of
“personal characteristics and life domains,” such as “sense of humor” or
“creativity,” but not including characteristics related to “socio-political issues
233. Korobkin, supra note 207, at 295.
234. Id. (citing Linda Babcock et al., Creating Convergence: Debiasing Biased Litigants, 22 LAW
& SOC. INQUIRY 913, 918 (1998)).
236. See Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving and
Teachable in Legal Education?, 6 HARV. NEGOT. L. REV. 97, 106 (2001) (describing how solutions
to legal problems come from creative lawyering).
237. See generally Cohen et al., supra note 227 (reprinting the results).
238. Id. at 417.
239. Id. at 418.
240. Id. at 417.
241. Id. at 417–19.
242. Cohen et al., supra note 227, at 422–27.
243. Id. at 417 (citation omitted).
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or national identity.”244 The subjects ranked the characteristics in order of
personal importance.245 To affirm subjects, the researchers instructed them
to write about “a time when your #1 personal characteristic or life domain
. . . was important to you.”246 Researchers instructed subjects assigned to the
“threat” condition to “describe a time when you failed to live up to your #1
personal characteristic or life domain.”247
Significantly, Cohen and his coauthors found that self-affirmation had a
debiasing effect, increasing subjects’ receptivity to information and
arguments counter to their beliefs.248 The debiasing effect of self-affirmation
was greatest in subjects who also fell into the “identity salient” group.249 That
is, these subjects were both affirmed for characteristics independent of the
report or negotiation and primed to think of themselves in terms of the
relevant aspect of identity (patriotism, say, or being pro-choice). For self-
affirmation to have the effect of increasing receptivity to counter arguments
and information, it helped rather than hindered that the subject negotiators
had been primed to think of themselves as people with strong convictions
about the subject matter who stood up for their beliefs.
Cohen’s theory is that the self-affirmation allows subjects to see that
their identity as a patriot or pro-choice advocate does not exclusively
determine their self esteem; it also affirms some other characteristic or
skill.250 But equally important, making salient their sense of self as people
who generally stand up for their beliefs takes some of the pressure off of the
specific exercise or interaction; they do not have to use this particular report
or negotiation to prove to themselves that they are patriotic or pro-choice.
Conversely, and quite counterintuitively, subjects who were primed to
think of themselves as “rational” before reading the report showed reduced
receptivity to identity-threatening information, and those primed to see
themselves as “cooperative” before negotiating actually made fewer
concessions.251 Again, Cohen and his coauthors posit that the “rational”
priming served to justify subjects’ resistance to identity-threatening
information and “cooperative” priming took the pressure off of the specific
negotiation to validate the subject’s self-concept as a cooperative or
reasonable person.252 “In short,” write Cohen and his coauthors, “self-
affirmation freed people to act and think in ways that deviated from the
244. Id. at 419.
247. Cohen et al., supra note 227, at 419.
248. Id. at 426.
249. Id. at 418.
250. Id. at 415.
251. Id. at 426–27.
252. Cohen et al., supra note 227, at 426–27.
particular challenged identity made salient in the situation.”253 People
affirmed for the aspect of their identity that was under threat were freed to
consider information and arguments inconsistent with that identity; people
affirmed for cooperation were likewise freed to behave less cooperatively.
The results of Cohen’s study have potentially important implications for
the thesis of this Article that mediation is often better suited than litigation
to resolve disputes based on highly charged conflicts in values. Litigation
narrowly focuses on the values in conflict, while mediation has the potential
to broaden the conversation to include a richer, more-complex picture of
the people involved, even allowing them to affirm aspects of their lives and
personalities that are independent of the values clash (e.g., loving parent,
creative teacher, energetic volunteer, etc.). Some might fear that mediation
is less effective than litigation in fulfilling Cohen’s second condition: the
finding that self-affirmation has the greatest effect on people for whom the
relevant aspect of identity is salient (e.g., patriotic or pro-choice). Granted,
litigation keeps the contested element of identity always at the forefront. But
it does not follow that mediation suppresses such elements of identity.
Some mediators attempt to “prime” parties not only by emphasizing
shared interests, but also by affirming them as reasonable people who can
listen to others and act cooperatively. Gary Friedman, a renowned mediator,
takes a slightly different approach.254 Early on during every mediation,
Friedman makes it his practice to secure an agreement from parties that in
addition to listening and trying to understand their opponents, they will also
stand up for and assert their views and preferences.255 The work of Cohen
and his coauthors provides some empirical support for Friedman’s
practice.256 Having been affirmed for their assertive abilities at the outset of
mediation, perhaps Friedman’s clients feel free to behave cooperatively as
the mediation progresses.
Mediators could implement the research of Cohen and his coauthors by
taking the parties through self-affirmation exercises as preparation for the
mediation, either in joint session or in caucus. Although parties in conflict
could use self-affirmation techniques in unassisted negotiation (particularly
if their lawyers were able and willing to apply the technique), the
intervention of a neutral third party would assure the parties that both sides
are going through the exercise. Few parties would willingly undergo an
exercise designed to increase their openness to the other side unless they
were assured that their new-found receptivity would be reciprocated.
253. Id. at 427.
254. See generally GARY FRIEDMAN & JACK HIMMELSTEIN, CHALLENGING CONFLICT: MEDIATION
THROUGH UNDERSTANDING (2008) (discussing the “understanding based” model of mediation).
255. Id. at 54–56.
256. See Cohen et al., supra note 227, at 416 (explaining that people are more open to new
ideas in a setting that allows them to affirm their pre-existing beliefs).
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The benefits of self-affirmation might be reduced if people knew they
were being affirmed for one value so that they might become more pliant
with respect to another. If a mediator explains the purpose of the self-
affirmation exercise, would it still help? Cohen, in ongoing research with
David Sherman and others, explored just this issue. Their research has
shown, unfortunately, that the debiasing effect from self-affirmation was
significantly reduced when research subjects were made aware of the
connection between self-affirmation and subsequent biased judgments.257
Indeed, when subjects made a “connection between the affirmation and the
evaluation of the threatening information, the theorized affirmation effect
was eliminated.”258 Thus, the researchers conclude, “The key to an effective
affirmation intervention may lie in the subtlety of its delivery and the
minimalism of its administration.”259
c. Loss Aversion
Loss aversion refers to people’s general preference to avoid losses
rather than acquire gains. One form of loss aversion is risk aversion. Risk
aversion describes people’s tendency to prefer guaranteed awards over
speculative ones in the case of gains (e.g., preferring fifty dollars guaranteed
over a fifty-percent shot of receiving one-hundred dollars) and, in the case
of losses, to prefer speculative ones over guaranteed ones (e.g., preferring
the fifty-percent chance of losing one-hundred dollars over a guaranteed
loss of fifty dollars).260 In suits for damages and some forms of injunctive
relief, a plaintiff can easily see the case as a potential “gain.” When the
plaintiff perceives trial to be a gamble that could result in a large damage
award but could also yield little or no payoff, the plaintiff may be inclined to
take the sure gain of settlement over the gamble of continued litigation.
The trouble, of course, is that for defendants the dynamic is reversed:
they see paying a settlement award as a sure loss, and thus are inclined to
prefer the gamble of trial. Defendants, therefore, will require some
257. See generally David Sherman et al., Affirmed Yet Unaware: Exploring the Role of Awareness in
the Process of Self-Affirmation, 97 J. PERSONALITY & SOC. PSYCHOL. 745 (2009) (explaining the
reduction in the debiasing effect). If Sherman and his coauthors’ experimental result is robust
in the field, mediators might find that they can reduce partisan perceptions and assimilation
bias in negotiation, but this will happen only if they adopt affirmation interventions that are
invisible to the parties. This could create another category of mediator actions that lose
effectiveness as soon as parties become aware of them. The answers to these ethical quandaries
are not self-evident. See generally Michael Moffitt, Casting Light on the Black Box of Mediation:
Should Mediators Make Their Conduct More Transparent?, 13 OHIO ST. J. ON DISP. RESOL. 1 (1997)
(exploring ethics of mediator tactics that might be manipulative).
258. Sherman et al., supra note 257, at 758.
259. Id. at 761.
260. Korobkin, supra note 207, at 308. But see Charles R. Plott & Kathryn Zeiler, Exchange
Asymmetries Incorrectly Interpreted as Evidence of Endowment Effect Theory and Prospect Theory?, 97 AM.
ECON. REV. 1449, 1450 (2007) (noting that exchange asymmetries attributed to loss aversion can
be made to disappear by subtly changing experimental procedures).
discounting in order to prefer the sure loss of settlement to the gamble of
litigation. So long as the plaintiff’s risk aversion is sufficiently strong to
balance the effect of defendant’s discounting, a zone of agreement will exist
and the case may settle. To create or expand a zone of potential agreement
between the parties, mediators may exploit the dynamic of risk aversion
when addressing the plaintiff, framing the case as a potential gain and
touting the benefits of a smaller but certain settlement relative to the
gamble of adjudication. With defendants, mediators may emphasize the ways
in which settlement offers certain gains that offset some of the certain loss of
the settlement payment. Mediators may also highlight the certain losses
defendants will suffer in litigation even if they escape liability—such as legal
and expert-witness fees, distractions from business or daily routines, bad
publicity or community relations, and emotional wear and tear.
Russell Korobkin and Chris Guthrie have argued that framing effects
may interact significantly with the loss aversion that would normally be in
play.261 Korobkin and Guthrie’s psychological studies have led them to
conclude that when a plaintiff cannot return, through settlement, to the
position he or she occupied before the harmful occurrence, the plaintiff
might see settlement as a “loss.”262 This is because the plaintiff might
compare settlement to the reference point of his or her pre-accident state
rather than to the reference point of his or her post-accident state—the
reference point that scholars often implicitly presume plaintiffs will use.263
Korobkin and Guthrie’s study may shed particularly helpful light on
disputes between gay rights and religious liberty because in these cases the
state of the law is in such transition that disputants have a variety of baselines
from which to measure the acceptability of a settlement offer. The plaintiff
in these cases will often be a religiously conservative person who feels
harmed by a pro-gay rule or policy, and so the case will appear to the
plaintiff as a potential gain if the effect of the pro-gay law or policy on the
plaintiff can be eliminated or alleviated. But it does not necessarily follow
that the case appears to the defendants as a potential loss. The state of the
law in this area is just too unclear for either party to maintain a strong sense
of the status quo or baseline from which to predict the likely outcome of
litigation.264 If the parties upholding specific norms of LGBT equality assess
261. Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An
Experimental Approach, 93 MICH. L. REV. 107, 109 (1994) [hereinafter Korobkin & Guthrie,
262. Id. at 137; see also Russell Korobkin & Chris Guthrie, Psychology, Economics, and
Settlement: A New Look at the Role of the Lawyer, 76 TEX. L. REV. 77, 99 (1997) (illustrating this
concept through a study).
263. Korobkin & Guthrie, Psychological Barriers, supra note 261, at 108–09.
264. For jurisdictions that recognize a legal right for same-sex couples to marry, see infra
note 374 and accompanying text. All of this legal change has occurred since 2004. California
permitted marriage for same-sex couples and then subsequently withdrew that right. See supra
notes 138–44 and accompanying text. Although several states extend some recognition to same-
792 95 IOWA LAW REVIEW 
their chances in adjudication not only in light of the relatively recent, pro-
gay state of the law, but also in light of the not-so-distant past in which the
law or policy in question was not so gay-friendly, then even to the defendant,
the opportunity for judicial reinforcement of the law or policy at trial may be
framed as a gain. But because the norm of LGBT equality is relatively new,
defendants may feel greater uncertainty that a judge will uphold the norm
and may see litigation as a risk. If that is the case, both parties may be subject
to loss aversion, driving both toward settlement rather than the gamble of
litigation which may cut against them.
As Korobkin and Guthrie’s study suggests, however, plaintiffs in cases
pitting gay rights against religious liberty may measure a proffered
settlement not against the predicted adjudication according to recent, gay-
protective law or policy, but against the state of the law prior to the
implementation of the new policy. Plaintiffs’ disagreement with the new
policy and desire for return to an earlier regime may influence the way in
which such litigants perceive both their chances at trial and the comparative
desirability of potential settlement. If their disagreement with the policy is
strong enough, there may be no settlement offer that can fully compensate
them for their perceived loss as measured from the period before the LGBT-
affirmative policy went into effect. If mediators are aware of these differing
frames and perspectives, they can better help the parties assess the risks and
benefits of their options.
Before leaving the discussion of loss aversion, it is important to note
that in cases that seem to pit gay rights against religious liberty, neither side
is monolithic. Just as the group on each “side” might contain heterogeneous
beliefs about an acceptable substantive outcome, so the group might contain
conflicting judgments about acceptable levels of risk. What LGBT or
religious-liberty advocates would want for a group would not necessarily be
the first priority for an individual who is in conflict with a local institution or
individual—a neighbor, coworker, or teacher. For some in conflict, the
symbolism is more important than the concrete policy or action at issue;
even if they are ultimately denied the concrete benefit, the other side’s
acknowledgement and respect may bring satisfaction. This means that
individuals in conflict will view the costs and benefits of litigation differently
from the way an institutional litigant would. And it may be easier for
individuals to relinquish an “all or nothing” approach to the conflict.
Allowing individuals to collaborate through mediation may be the most
effective way to work out the delicate balancing of these competing civil
rights. If Marc Stern, General Counsel for the American Jewish Conference,
is correct when he says that the conflict between gay rights and religious
sex couples, at the time of publication, the majority of states do not. For a visual representation
of laws regarding recognition of same-sex couples, see NAT’L GAY & LESBIAN TASK FORCE,
RELATIONSHIP RECOGNITION FOR SAME-SEX COUPLES IN THE U.S. (2009), http://www.thetask
liberty is going to be a “‘train wreck’” which can be avoided only if advocates
on both sides renounce “‘a winner take all’” attitude,265 then mediation,
rather than litigation, may be the optimal place for developing alternative
2. Fostering Understanding and Complicating Views of Identity
Disputes between gay rights and religious liberty present legal questions
that focus on concrete realities (e.g., “Will this Christian employee be
compelled to take part in a diversity training that includes sexual
orientation?” or “Will these religious objectors be permitted to display signs
at the gay-pride festival?”). In addition to such legal issues, however, these
disputes often raise powerful questions about identity and how it is
expressed (e.g., “What does it mean to be Christian or Gay and how is
identity as a Christian, an LGBT person, or both lived out in words and
actions?”). At this more abstract, almost philosophical level, mediation can
do some of its greatest work.
a. Identity as an Obstacle to Dispute Resolution
Clearly, identity is often threatened and questioned when people come
into conflict. As Douglas Stone, Bruce Patton, and Sheila Heen explain,
underlying every difficult conversation is a conversation about identity:
The conversation has the potential to disrupt our sense of who we
are in the world, or to highlight what we hope we are but fear we
are not. The conversation poses a threat to our identity—the story
we tell ourselves about ourselves—and having our identity
threatened can be profoundly disturbing. . . . A difficult
conversation can cause you to relinquish a cherished aspect of how
you see yourself. At its most profound, this can be a loss that
requires mourning just as surely as the death of a loved one.266
Difficult conversations often call into question people’s sense of
themselves, and seeing the world in absolutes can make the identity crisis
more acute. As Stone, Patton, and Heen explain, “The biggest factor that
contributes to a vulnerable identity is ‘all-or-nothing’ thinking: I’m either
competent or incompetent, good or evil, worthy of love or not.”267 If people
in conflict resolve their all-or-nothing identity crisis (as they often will) by
concluding that they are one-hundred percent right, it must follow that the
other side is one-hundred percent wrong. And if they resolve the identity
265. Peter Steinfels, Will Same-Sex Marriage Collide with Religious Liberty?, N.Y. TIMES, June 10,
2006, available at http://www.nytimes.com/2006/06/10/us/10beliefs.html (quoting Marc
266. DOUGLAS STONE, BRUCE PATTON & SHEILA HEEN, DIFFICULT CONVERSATIONS 112–14
267. Id. at 114.
794 95 IOWA LAW REVIEW 
crisis by concluding that they are right, good, and virtuous, it will be easy for
them to assume that anyone who disagrees with them must be wrong, evil,
and vicious. Not only that, but it will be easy for them to assume that the
other side has resolved the identity conflict in corresponding fashion. They
will assume that the other side sees them as wrong, evil, and vicious.
Regardless of the accuracy of these assumptions, their mere existence
dissuades the parties from talking to each other (“Why would I want to talk
to someone who is wrong, evil, and vicious or someone who believes that I
am wrong, evil, and vicious?”). As Gabriella Blum and Robert Mnookin
remark, “When a conflict implicates issues of identity . . . there may be a
greater tendency towards framing issues in moral terms. . . . [O]nce a
dispute is framed in moral terms, identity is often defined in opposition to
‘the other.’”268 Thus, identity and moral indignation fall into a reinforcing
loop. “Making a concession—even in the form of entering into a
negotiation—may be seen not only as a moral concession, but even as a
potential threat to one’s identity.”269
In general, conflicts between gay-rights advocates and religious-liberty
proponents have produced a particularly destructive form of attribution
error, something I will call “second-order attribution.” It works in the
following way. Because advocates for LGBT equality have affirmatively
analogized gay rights to civil rights for African-Americans, they have
(perhaps inadvertently)270 suggested a corresponding, negative implication:
that those who oppose gay rights are like the people who opposed civil rights
for African-Americans in the mid-twentieth century. Because history has not
been kind to the losing side in that struggle, opponents of gay rights
understandably object to rhetoric that suggests similarities between them
and a group of people who society now generally (and rightly) condemns as
prejudiced, small-minded, and hateful.
The trouble is that some people who oppose gay rights have assumed—
in a manner consistent with attribution theory, outlined above—that gay-
rights supporters must believe that just as opponents of African-American
civil rights were bigots, anyone who opposes gay rights is a bigot. And the
word “bigot” seems to be a conversation stopper—or, at least, it derails a
268. Blum & Mnookin, supra note 206, at 110.
270. Sometimes the corresponding point is made explicitly. One author wrote:
Looking back 50 years to Brown v. Board of Education, most Americans have no
difficulty in distinguishing the legacies of Thurgood Marshall, Martin Luther King
Jr. and John F. Kennedy from those of the segregationist governors Orval Faubus,
Ross Barnett and George Wallace. And 50 years from now, the odds are that
Americans will have little difficulty in distinguishing the legacies of Evan Wolfson,
Mary Bonauto and Gavin Newsom from those who oppose gay equality. As Kevin
Cathcart asks, ‘Which side of history do you want to be on?’
David J. Garrow, Toward a More Perfect Union, N.Y. TIMES, May 9, 2004, § 6 (Magazine), at 52.
conversation about views and values and turns it into something more
hostile and even more identity-threatening. This negative turn can occur
whether or not anyone in the specific conflict calls another a bigot; second-
order attribution—attributing attribution by another—deepens conflict and
makes communication even more difficult. The challenges are even greater
when people in conflict begin to assume that the other side is attributing to
them dispositional characteristics they may not possess and, importantly, the
other side may not, in fact, believe they possess.
Consider the following testimony delivered by Maggie Gallagher before
a legislative committee in Connecticut:
The main argument I want to make is that marriage is not
discriminatory because it’s rooted . . . in three enduring truths
about human beings, that are the marriage idea. One is that sex
makes babies. The second is society needs babies. The third is that
babies need a father as well as a mother. This is the heart of
marriage as a cross-cultural idea in different religious traditions.
And that endorsing same-sex unions as marriage on equality
grounds, as, as a civil rights argument, involves rejecting, the
government will now reject these as our, part of our core
understandings of marriage and will, instead, endorse a new idea,
which is that there is no relevant difference between same-sex and
opposite-sex couples and anyone who thinks otherwise is a bigot. I think
that, those are the issues.271
This excerpt indicates that Gallagher attributes to those who are “endorsing
same-sex unions as marriage on equality grounds” the belief that “anyone
who thinks otherwise is a bigot.” We should ask how that attribution changes
her case, and what effect it has on the members of her audience, both those
who perceive themselves to be aligned with her and those who do not.
This attribution of belief about bigotry is complex and potentially
powerful. Not only does it unsettle those who tend to agree with Gallagher
(“Hey! Who’s calling me a bigot?”), it also unsettles those who disagree with
her (“Wait a minute . . . I’m not sure I want to be aligned with a cause that
calls people names and hurtles accusations of bigotry. Should I rethink
From a legal standpoint, of course, it is not at all clear that the belief
about bigotry follows from the beliefs about equality. Certainly, in order to
find an equal-protection violation, a court must conclude that the reasons
government proffers to justify the different treatment at issue are not
adequate to satisfy the relevant level of scrutiny.272 A court may have to find
that there is no rational basis for the action—that the causal link is
271. Hearings, supra note 9 (testimony of Maggie Gallagher) (emphasis added).
272. JOHN NOWAK & RONALD ROTUNDA, CONSTITUTIONAL LAW 681–82 (7th ed. 2004).
796 95 IOWA LAW REVIEW 
empirically too weak between the law’s distinctions and the government’s
stated goal.273 The court might have to find (depending upon the applicable
level of constitutional scrutiny involved) that the reasons, though legitimate,
are not “important” or “compelling” enough to justify different treatment.274
But it need not find—which is to say there is no constitutional requirement
that it find—that anyone who supports the distinction is a “bigot.”275 But
Maggie Gallagher boils the debate about marriage for same-sex couples
down to two supposedly opposing “ideas”: “There is something unique about
unions of husbands and wives. There is no difference and anyone who
thinks otherwise is . . . like a bigot. Those are the two ideas you’re being
asked to choose between.”276 She further cautions lawmakers:
Are those of us who see marriage as the union of husband and wife
really like bigots who opposed interracial marriage? Then ask
yourself: how does the law treat racial bigots? And you will get a
sense of the magnitude of the culture war you will be
launching . . . .277
Thus, we can see that the word “bigot” is doing important rhetorical work
for Ms. Gallagher. But who uttered it first?
Certainly, LGBT-rights supporters have used words like “bigotry” to
describe ideas. The late Senator Edward Kennedy, for example, asserted that
“[a] vote for [the Federal Marriage Amendment] is a vote for bigotry—pure
and simple.”278 If such statements amount to assertions that people who
support the ideas are bigots, then it is not attribution alone that creates this
crisis of identity for same-sex-marriage opponents. But as blogger Jeremy
275. Merriam Webster defines a bigot as “a person obstinately or intolerantly devoted to his
or her own opinions and prejudices; especially : one who regards or treats the members of a
group (as a racial or ethnic group) with hatred and intolerance.” Merriam-Webster OnLine,
Bigot, http://www.merriam-webster.com/dictionary/bigot (last visited Feb. 28, 2010).
Moreover, commentary in the Oxford English Dictionary reports that the earliest English uses
of the word “bigot” in the late sixteenth century were to denote a “hypocrite” or “superstitious
adherent of religion.” Oxford English Dictionary, Bigot, http://dictionary.oed.com/cgi/entry/
50021933?single=1&query_type=word&queryword=bigot&first=1&max_to_show=10 (last visited
Feb. 28, 2010). It was another century before the word began to refer to nonreligious beliefs as
276. Hearings, supra note 9 (testimony of Maggie Gallagher).
277. MAGGIE GALLAGHER, INST. FOR MARRIAGE & PUB. POLICY, JUDICIARY COMMITTEE
TESTIMONY 3 (2007), available at http://www.cga.ct.gov/2007/JUDdata/Tmy/2007HB-07395-R0
278. Edward M. Kennedy, Op-Ed., GOP Says “I Do” to Bigotry, BOSTON HERALD, June 5, 2006,
at 25, available at 2006 WLNR 9628647; see also Jeff Jacoby, A Civil Debate on Gay Marriage,
BOSTON GLOBE, June 7, 2006, http://www.boston.com/news/globe/editorial_opinion/oped/
articles/2006/06/07/a_civil_debate_on_gay_marriage/ (quoting Kennedy on the senate floor
condemning opponents’ attempts to “‘stain the Constitution with their language of bigotry’”).
Hooper has pointed out, there’s a difference between calling a policy
proposal “bigotry” and calling its supporters “bigots”:
It may sound small, but it’s actually a very important difference.
One does not have to be a bigot to support bigotry; all civilizations
have tolerated various forms of bias. Many people casually accept
or accepted intolerance due to misinformation, misguided
teachings, false facts, junk science, improper leadership, personal
issues, etc. . . . Sen. Kennedy . . . attacked the measure, not the
character of those who supported it.279
Hooper’s analysis begins to suggest the sort of conversation that might take
place in mediation.
To forestall the fears of people of faith that they will be considered
“bigots,” LGBT individuals and their supporters may need to explain that
they do not consider the people on the other side to be bigots, even if they
strongly disagree about a particular policy question. This nuanced
distinction between bad policy and bad people280 may require more
explanation than is usually possible in litigation.
When second-order attribution occurs, the job of the mediator is to
keep the conversation going and to help clarify whether, in fact, a supporter
of gay rights actually believes that an opponent is a bigot. And what if he or
she does feel that way? A mediator can help the parties to explore the
possibilities for resolving their dispute even if one party thinks the other is a
bigot. Conflict can require people to hear things that are painful to them.
LGBT individuals and their supporters may have to hear some of their fellow
citizens say, “Sexual intimacy with members of your own sex is not
acceptable to us.” These same speakers, in turn, may have to hear their
fellow citizens say, “It is not acceptable to us that you disapprove of sexual
intimacy between people of the same sex.” It will be painful for LGBT
people to hear others say that their lives and loves are not legitimate. In
exchange for the right to inflict this kind of pain, perhaps those who say
these things must also absorb some pain of their own—including the pain of
hearing that others view their ideas as “bigotry.”281
279. Jeremy Hooper, Knight Forces Ghosts of Dead Icons to Say, “Yo, Don’t Drag Me into This!,”
GOOD AS YOU, June 13, 2006, http://www.goodasyou.org/good_as_you/2006/06/knight_
forces_g.html (emphasis in original).
280. See FISHER, URY & PATTON, supra note 33, at 9–14 (discussing negotiating techniques,
including being hard on the problem, soft on the people).
281. Cf. Boos v. Barry, 485 U.S. 312, 322 (1988) (“[I]n public debate our own citizens must
tolerate insulting, and even outrageous, speech in order to provide ‘adequate “breathing space”
to the freedoms protected by the First Amendment.’” (quoting Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46, 56 (1988))).
798 95 IOWA LAW REVIEW 
b. Overcoming Identity Obstacles by Developing
Mutual Understanding in Mediation
One of the hallmarks of mediation is that, when it is done well, it
challenges parties in conflict to get behind and beyond labels like “bigot”
and unpack phrases like “homosexual agenda.” The rhetorical devices that
some activists on both sides use to stir the ground troops may be absorbed
and internalized by individuals who find themselves in actual, concrete
conflicts—but those rhetorical devices are often singularly unhelpful in
actually resolving the conflicts. Mediation can help the parties acknowledge
“the degree to which material and tangible interests (as opposed to
‘morality’ or character) are determining the behavior of both sides.”282
Shifting attention to these material and tangible interests may help to debias
parties when a values clash exacerbates the natural tendency to attribute bad
character to the other side (or, in second-order attribution, to assume
defensively that others are attributing bad character to them).
A good example of successful mediation in a case that presented an
apparent clash in values is Sisters of the Precious Blood v. Bristol-Myers Co.283 The
Sisters were concerned that Bristol’s marketing of baby formula in
developing nations was “contributing to serious illness, malnutrition and
death of infants.”284 The case eventually ended up in the Second Circuit’s
appellate-mediation program. There, mediator Frank Scardilli realized that
“the respective parties’ self-image was significantly at variance with the image
each had of the other.”285 Scardilli observed that “Bristol regarded itself as
by far the most responsible marketer of infant formula in the third world”
and Bristol was “furious” that the Sisters singled out the company as “baby
killers.”286 Bristol “viewed the Sisters as wild-eyed, misguided religious
Scardilli worked to convince the parties that their interests were more
compatible than they perceived them to be, and that a “win” in the appellate
court would not resolve their conflict. Scardilli persuaded the Sisters that
they could best achieve their interest in effecting marketing changes “in a
climate of cooperative good will with management,” and “Bristol in turn was
282. Blum & Mnookin, supra note 206, at 110.
283. Sisters of the Precious Blood, Inc. v. Bristol-Myers Squibb Co., 431 F. Supp. 385, 385–
87 (S.D.N.Y. 1977) (involving a claim by an order of nuns alleging that a company had used
misrepresentations in proxy materials to defeat a shareholder resolution that the order had
284. Frank J. Scardilli, Sisters of the Precious Blood v. Bristol-Myers Co.: A Shareholder-Management
Dispute, in LEONARD L. RISKIN, JAMES E. WESTBROOK, CHRIS GUTHRIE, TIMOTHY J. HEINSZ,
RICHARD REUBEN & JENNIFER ROBBENNOLT, DISPUTE RESOLUTION AND LAWYERS 314–19 (3d ed.
285. Id. at 317.
forced to concede that, notwithstanding what they viewed as the distasteful
stridency of the Sisters, there was indeed a real moral issue to be faced.”288
Resolving the case required “considerable negotiation in four face-to-face
conferences supplemented by numerous telephone conferences over a
period of nearly six months.”289 In the end, the Sisters and Bristol were able
to agree to some changes in the way Bristol marketed formula and,
importantly, that “[t]he Sisters would be given direct access to Bristol’s
Board of Directors and other representatives of the company at various
times for the purpose of maintaining a first-hand continuing dialogue on
the problems of marketing infant formula in the third world.”290 Parties that
had walked into mediation with intense animosity and fear that their
adversaries were acting in bad faith were able to reach an agreement that
secured an ongoing, dialogic relationship.
To foster mutual understanding between the parties in a dispute pitting
gay rights against religious liberty, a mediator would likely encourage the
parties to tell their stories: what happened to them (or people close to
them), how they responded emotionally, and how the events will continue to
affect them. To “complete the loop of understanding,” as Gary Friedman
and Jack Himmelstein have suggested, the mediator would invite the parties
to repeat back what they have heard their opponents saying.291 This allows
the listeners to check their understanding of the stories and allows the story
tellers to elaborate or clarify if their opponents are misunderstanding
The stories parties tell are crucial, because in these disputes each party
may assume that it already knows the other’s story, or may believe that the
other side has no story to tell.293 The paradigmatic cases are influential (and
have gained political traction) precisely because they do present stories—
personal experiences of harm that have been attributed to anti-gay bias on
the one hand, or an LGBT equality norm on the other. Had the parties
mediated these disputes, the mediation might have prevented or mitigated
that experience of harm.
288. Id. at 318.
289. Scardilli, supra note 284, at 318.
291. Gary Friedman & Jack Himmelstein, The Loop of Understanding, in MEDIATION:
PRACTICE, POLICY, AND ETHICS 225, 226 (Menkel-Meadow, Love & Schneider eds., 2006).
292. Id. In Friedman and Himmelstein’s model, the mediator does not caucus with parties
individually; in their view, keeping the parties together more effectively builds understanding,
which is the goal of the process. Id.
293. See, e.g., Marc Solomon, Op-Ed., A Closer Look at the Prop. 8 Defeat, BAY WINDOWS
(Boston, Mass.), Nov. 13, 2008, available at http://www.baywindows.com/index.php?ch=
opinion&sc=guestopinions&sc3=&id=83299 (encouraging gay couples and their allies to tell
their stories to persuade undecided people to support marriage for same-sex couples by saying,
“Will our opposition try the same thing? They might. But they have no stories to point to, only
800 95 IOWA LAW REVIEW 
One of the reasons that mediation could be so powerful in these cases is
that this sort of storytelling will likely resonate deeply with the participants.
LGBT people and their allies have long understood the importance of
“coming out”—telling about their lives and the ways they have been
influenced by sexual orientation (their own or that of someone they love).
Similarly, evangelical Christians hold as essential doctrine the importance of
“witnessing” to the importance of Jesus Christ in their lives.294 As Rick
This is the essence of witnessing—simply sharing your personal
experiences regarding the Lord. In a courtroom, a witness isn’t
expected to argue the case, prove the truth, or press for a verdict;
that is the job of attorneys. Witnesses simply report what happened
to them or what they saw.295
This is the sort of personal storytelling that mediation facilitates so
effectively. By encouraging the parties to speak from their own experience
rather than “argue the case” or “prove the truth,” the mediator can shift the
conversation to helping each party develop a better understanding of who
each other is without relying upon emotional (and potentially inaccurate)
3. Emphasizing the Ongoing Relationship
Mediation, to a much greater extent than litigation, can focus on the
parties’ ongoing relationship. This focus on the future also allows the
disputants to shift the conversation from what happened in the past to what
they would be willing and able to do in the future. If they are able to reach
an agreement about their future relationship, the benefits of party “buy in”
may be important when the time comes to enforce their agreement.
4. Dovetailing Values Instead of Emphasizing Value Conflicts
Mediation, much more than litigation, can deploy core values within
Christian or LGBT experience to create empathy and shared understanding
between the parties. Within Christianity, a core value is love of enemies.296
Within the LGBT experience, a core value is authenticity—coming out of
the closet or eschewing it altogether. By making these elements of identity
salient, mediators can help parties gain a greater appreciation for the other
side in disputes pitting gay rights against religious liberty.
294. Indeed, according to Acts 1:8, Jesus’s very last words on earth were “[Y]ou shall receive
power when the Holy Spirit has come upon you; and you shall be my witnesses in Jerusalem and in
all Judea and Samaria and to the end of the earth.” Acts 1:8 (emphasis added).
295. RICK WARREN, THE PURPOSE DRIVEN LIFE 290 (2002).
296. Matthew 5:44 (“But I tell you: Love your enemies and pray for those who persecute
a. Nonadversarial Conflict Resolution and Love of Enemies in Christianity
The Christian Bible is replete with admonitions to resolve conflict
amicably with as little resort to courts as possible.297 The Bible urges
Christians to put aside their pride and even sometimes their principles or
ideology for the sake of unity.298 Rick Warren, in his phenomenally
influential book The Purpose Driven Life, acknowledges how difficult it can be
to resolve conflict, even among fellow “believers”: “Peace always has a price
tag. Sometimes it costs our pride; it often costs our self-centeredness. For the
sake of fellowship, do your best to compromise, adjust to others, and show
preference to what they need.”299
Thus, the model for Christians in disputes is one of attention to the
interests of others, meeting them half way, and avoiding resort to state
authorities. For more than twenty-five years, organizations such as
Peacemaker Ministries have put into practice the dictates of their faith by
offering conciliation services for Christians in conflict.300
Granted, much of the emphasis on conciliation applies to relationships
between fellow believers, but those outside the community are not fair game
for poor treatment. Indeed, Jesus taught that Christians should love not only
their friends—their fellow community members—but also their enemies, the
people they find hardest to trust and appreciate.301 As Christian writer
Marilyn Chandler McEntyre explains, Christianity requires some thought
about exactly how one is supposed to accomplish this love:
297. “If your brother sins against you, go and show him his fault, just between the two of
you. If he listens to you, you have won your brother over.” Matthew 18:15; “And why worry about
a speck in your friend’s eye when you have a log in your own?” Matthew 7:3; “So if you are
standing before the altar in the Temple, offering a sacrifice to God, and you suddenly
remember that someone has something against you, leave your sacrifice there beside the altar.
Go and be reconciled to that person. Then come and offer your sacrifice to God.” Matthew 5:23.
298. “I appeal to you, bretheren . . . that all of you agree and that there be no dissensions
among you, but that you be united in the same mind and the same judgment.” 1 Corinthians
1:10–13 (discouraging church members from “belonging” to a particular person or group);
“Let each of you look not only to his own interests, but also to the interests of others.” Phillipians
2:4; “To have lawsuits at all with one another is defeat for you. Why not rather suffer wrong?
Why not rather be defrauded?” 1 Corinthians 6:7.
299. WARREN, supra note 295, at 157.
300. See Peacemaker Ministries, Mission, History, and Organizational Structure, http://
ational_Structure.htm (last visited Feb. 28, 2010) (discussing how the organization helps
“Christians and their churches to respond to conflict biblically”).
301. “But I tell you who hear me: Love your enemies, do good to those who hate you, bless
those who curse you, pray for those who mistreat you. . . . Do to others as you would have them
do to you. . . . But love your enemies, do good to them, and lend to them without expecting to
get anything back.” Luke 6:27–35; “You have heard that it was said, ‘Love your neighbor and
hate your enemy.’ But I tell you: Love your enemies and pray for those who persecute you, that
you may be sons of your Father in heaven.” Matthew 5:43–48.
802 95 IOWA LAW REVIEW 
I love you by learning to inhabit gray areas, by forfeiting the
satisfaction of easy judgment and finding ways to sit down with you
and find out what it is like to be you. I love you by studying your
credo or your Koran or your party platform, your economic
theories, your ideas of duty. And I love you by praying for the words
and the wisdom to enter into the conversation that might redirect
our energies into a path of mutual understanding.302
Mediation holds great promise for bringing forth this kind of love.
Mediation allows people to tell their stories and express their views about a
situation, while at the same time listening respectfully to the stories and
perspectives of their adversaries. The “conversation that might redirect . . .
energies into a path of mutual understanding” is the heart of mediation.
Thus, one might argue that Christian love—especially the love that Jesus
commanded, love of “enemies”—should facilitate mediation of any dispute
involving a person who professes the Christian faith, whether or not the
opponent shares that faith.
b. LGBT Empathy for Marginalized Groups—Threat of Closeting
Just as Christians share a theological foundation conducive to
mediation, so too LGBT individuals and their allies share experiences and
perspectives that might create empathy and thus facilitate a mediated
resolution. Kenji Yoshino argues that “despite our frequent political
differences, religionists and gays share a special bond.”303 This bond is the
challenge they both face from demands for assimilation. Yoshino is
particularly concerned with “covering”—the process of downplaying a
controversial or disfavored trait in order to fit more easily into the
mainstream.304 Yoshino sees the threat of coerced assimilation as a point of
potential connection and solidarity between people who might otherwise
find themselves at odds: “Because covering applies to us all, it provides an
issue around which we can make common cause. This is the desire for
authenticity, our common human wish to express ourselves without being
impeded by unreasoning demands for conformity.”305 Andrew Koppelman
has similarly argued that LGBT individuals and their advocates should be
especially empathetic to individuals and groups—including conservative or
evangelical Christians—who fear that legal or social pressures will force
them to hide important elements of their identity. He has warned that the
conversation about gay rights and religious beliefs “will shut down if either
302. Marilyn Chandler McEntyre, How Do I Love Thee? A Letter to My Enemies, WEAVINGS
Mar.–Apr. 2006, at 6, 9.
303. KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS 168 (2007).
304. See generally id. (describing what covering entails for various groups, including women,
people with disabilities, Asians, and LGBT people).
305. Id. at xii.
side uses its power to coerce the other to shut up. Gay people have been for
a long time, and sometimes still are, subjected to just this kind of
Both parties in the conflict pitting gay rights against religious liberty
should thus be naturally predisposed to talking about the conflict. This
makes mediation a natural fit. Much more than litigation, mediation is
capable of creating empathy and then harnessing it. In a spirit of such
empathy, pro-gay parties might find ways to reassure religiously conservative
parties that a new system upholding LGBT equality can also protect the
rights of others to disagree. Similarly, religious objectors may be able to
focus on love to gain a better understanding of LGBT individuals and their
IV. MEDIATING THE PARADIGMATIC CASES
The preceding Part argued that mediation holds great promise as a
process for resolving disputes that seem to pit gay rights against religious
liberty. This Part demonstrates how some of the attributes of mediation
might have proven particularly helpful in the paradigmatic cases set forth
earlier in this Article.
A. PETERSON AND HEWLETT-PACKARD
If Andrew Koppelman is correct that dismissing Peterson’s case was
legally correct but firing him was not socially optimal, we are left to wonder
how the case might have been better handled.307 Did Peterson’s goals and
underlying beliefs mean that he and HP could never reach common
ground? Perhaps. But rereading the Ninth Circuit opinion and speaking to
Peterson yielded at least a few clues about the ways a mediator might have
assisted the parties to resolve the case. At Peterson’s meetings with HP
management, the court says, “he and they tried to explain to each other
their respective positions.”308 But as any student of negotiation can tell you,
merely explaining positions is not a good way to reach understanding.309
This becomes increasingly clear as the court recounts Peterson’s position:
Peterson explained that he meant the passages [from the Bible
posted in his cubicle] to communicate a message condemning “gay
306. Koppelman, You Can’t Hurry Love, supra note 53, at 145. For an example of the fear
that LGBT equality norms are so inconsistent with conservative evangelicalism that only one can
stand, while the other must live “a ghostly existence, pale and eviscerated, relegated to the
closet,” see Family Research Council, Gay Marriage and the Church, http://www.frc.org/get.
cfm?i=WX07E34 (last visited Feb. 28, 2010).
307. See supra notes 53–57 and accompanying text (discussing Koppelman’s position on
how the parties should have resolved their dispute in the Peterson case).
308. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 602 (9th Cir. 2004).
309. See generally FISCHER,URY & PATTON, supra note 33, at 10–11 (arguing that a focus on
interests, rather than positions, will help parties reach productive agreements in negotiation).
804 95 IOWA LAW REVIEW 
behavior.” The scriptural passages, he said, were “intended to be
hurtful. And the reason [they were] intended to be hurtful is you
cannot have correction unless people are faced with truth.”
Peterson hoped that his gay and lesbian co-workers would read the
passages, repent, and be saved.
In these meetings, Peterson also asserted that Hewlett-Packard’s
workplace diversity campaign was an initiative to “target”
heterosexual and fundamentalist Christian employees at Hewlett-
Packard, in general, and him in particular.310
Note the character of this discussion. Peterson’s first assertion, that he
meant his postings to be a condemning and hurtful “correction” that might
lead his LGBT coworkers to “repent and be saved,” is actually quite
constructive. It helps to clarify the meaning of his actions. That clarification
might have been upsetting to the people in conversation with Peterson. It is
seldom easy to hear that someone intended his actions to be hurtful, thus
confirming as accurate the very fears that the attribution error so often
misleads us to believe. Usually the clarification disclaims such intention. The
good news is that Peterson used this part of the conversation to explain why
he did what he did. His ultimate goal, that LGBT coworkers “repent and be
saved,” was also clarified.
But note the turn the conversation took next. Peterson’s second set of
assertions in these conversations had to do not with his own behavior and
intentions, but HP’s. Here we see a classic example of attribution error.
Peterson understood the diversity program to intentionally target
heterosexual Christians (and to especially target him), to “convince him to
change his religious beliefs.”311 How did HP management respond to these
assertions? The court says that:
In numerous meetings, Hewlett-Packard managers acknowledged
the sincerity of Peterson’s beliefs and insisted that he need not
change them. . . . All that the managers did was explain Hewlett-
Packard’s diversity program to Peterson and ask him to treat his co-
workers with respect. They simply requested that he remove the
posters and not violate the company’s harassment policy. . . .312
It appears that these assertions by HP management were insufficient to
dispel Peterson’s fears about HP’s diversity campaign. In addition, the court
says, the HP managers “attempted to determine whether it would be possible
to resolve the conflict in a manner that would respect the dignity of
Peterson’s fellow employees.”313 In describing the Peterson–HP meetings,
310. Peterson, 358 F.3d at 602.
311. Id. at 604.
313. Id. at 606.
the court says that Peterson would consider only two options for resolving
the case: (1) displaying the “Gay” diversity campaign poster and his Bible
verses, or (2) removing both.314
One wonders how much attention this conversation gave to the fact that
HP staff placed the diversity campaign poster featuring a gay employee next
to Peterson’s cubicle. Though the court may be correct that Peterson had
“no evidence supporting his assertion that the placement of the poster was
intended to target him,”315 surely a mediator could have explored whether
relocating, rather than entirely removing, the poster might have eased
Peterson’s discomfort without unduly undermining the campaign. This
option might have been particularly attractive in the context of a campaign
that included a variety of diversity posters. Perhaps Peterson would have
removed his Bible verses if the poster featuring a gay employee had been
moved elsewhere and in its place HP had substituted one representing
another demographic group.
In addition, at oral argument Peterson’s counsel suggested for the first
time two options that he said Peterson would have accepted: “Hewlett-
Packard could have moved Peterson’s cubicle to an isolated area where
‘nobody would have seen him,’ or 2) Hewlett-Packard could have designated
a remote area as a ‘diversity forum’ in which employees would be permitted
to hang ‘non-offensive’ posters regarding a variety of topics.”316 The court
concludes that Peterson’s additional options would “not appear to
accommodate the religious requirements on which Peterson’s
accommodation claim relies.”317
While such flaws in Peterson’s eleventh-hour proposals might suggest
that he would have rejected them if HP management had proposed the
ideas earlier, the key question is what Peterson would have found
acceptable, not what the court would have preferred. Indeed, the court’s
affirmance of summary judgment means that Peterson received no
accommodation at all and his twenty-plus-year relationship with HP was
entirely severed. The solutions suggested at oral argument are precisely the
sort of deals that parties sometimes make after the “reality test” of an adverse
result (in this case, a loss on summary judgment; in other cases, conversation
in caucus with a mediator that suggests problems with the party’s case on the
merits). If Peterson’s counsel was able to propose such alternatives in oral
argument (not characterized, generally, by an atmosphere of cooperation
and creativity), what more might have been accomplished with a skilled
mediator guiding the discussion?
314. Id. at 602.
315. Peterson, 358 F.3d at 604 n.1.
316. Id. at 607 n.7.
806 95 IOWA LAW REVIEW 
At no point in his dispute with Hewlett-Packard, according to Richard
Peterson, was he offered the opportunity to mediate with his employer.318
When asked to name the three or four most important obstacles to
negotiating a resolution of his case, Mr. Peterson described a sense of being
inarticulate, unable to explain his misgivings about the HP diversity program
in a way that management could seem to hear. “It was always me and one or
two managers having a one-sided conversation that always came back to the
same point: take down the Bible verses.”319 Peterson claimed that before he
was fired he would have been “open to compromise” and willing to engage
in a different sort of dialogue if he “could have had some help.”320 The
thesis of this Article is that mediation, properly timed and designed, might
have been exactly the sort of “help” someone like Richard Peterson needed
to feel respected and heard—feelings that were perhaps essential before any
collaboration would be possible.
A mediator might have prodded Peterson to go below the surface of his
positions, to explore the relationship between his faith, his profession, and
his relationship with colleagues. For example, if a mediator had been able to
facilitate conversation between Peterson, HP management, and some of
Peterson’s closest colleagues they might have explored the deeper meaning
of the conflict. Peterson might have expressed his religious views to
management and to his LGBT coworkers, helping him feel that he was being
true to his faith. If fellow workers found Peterson’s expression of faith
demeaning or threatening, they in turn could have explained to Peterson
why the Bible verses hurt them so. This kind of conversation might actually
have fostered greater understanding, not just about the abstractions at stake
(e.g., “diversity” or “faithfulness”) but also—and perhaps more
importantly—about how the concrete desires and needs of the people
involved would have been met by various ways of working together on the
B. PARKER AND THE LEXINGTON SCHOOL DISTRICT
Mediation in the Parker case could have helped in a variety of ways. First,
and most obviously, a mediator brought in early, as soon as the conflict
between the Parkers and Principal Jay showed signs of persisting, might have
helped the parties remain open to creative, flexible solutions to their shared
problem.321 Early intervention might have prevented David Parker’s arrest,
along with the publicity and hardening of positions it seemed to generate.322
318. Telephone Interview with Richard D. Peterson, supra note 45.
321. Indeed, as similar cases unfold across Massachusetts, it appears that school officials
have found more flexible ways of dealing with parents like the Parkers. See, e.g., Jacobs, supra
note 104 (noting that some Massachusetts schools have accommodated parents like the Parkers
No matter when the parties attempted to mediate, it is likely that the
process would have addressed a variety of barriers to resolution in the case,
including attribution error, partisan perceptions, and resistance to identity-
threatening information. In addition, the Parker case would have presented
numerous opportunities for a mediator to draw the parties’ attention to
their ongoing relationship and the impact of ongoing conflict on the
children of Lexington, including the Parkers’ two sons. These attributes and
opportunities in mediation might have resolved the case before the
Wirthlins heard about the controversy and moved to town, before the lawsuit
was filed, and long before political ads in California deployed the
Massachusetts case to abolish marriage for same-sex couples in California.
1. Attribution Error
The Parkers and Wirthlins were concerned that the school was not only
trying to “indoctrinate” their children into holding views of homosexuality
inconsistent with their own, but that the school was also sending a message
to their children that denigrated the Parkers’ and the Wirthlins’ religious
beliefs.323 School officials, for their part, worried that the plaintiff parents
were attempting to control the school’s curriculum and prevent the school
from expressing gay-affirmative messages.324 Mediation might have
permitted teachers and school officials to clarify the message they were
trying to send with the Diversity Book Bag and other reading materials
related to same-sex couples. Perhaps the messages the parents received
regarding the school officials’ attitude toward the parents’ religious beliefs
were not at all what the school meant to send. Correspondingly, in pursuing
concerns about their own children’s education, perhaps the parents
unintentionally created the impression that they wanted to control other
children’s education as well. Mediation might have examined the “all or
nothing” thinking that was driving each side, encouraging the parties to
acknowledge the possibility that each side had good intentions, even if
negative consequences flowed from their words and actions.
The First Circuit noted that “[t]he heart of the plaintiffs’ free exercise
claim is a claim of ‘indoctrination’: that the state has put pressure on their
children to endorse an affirmative view of gay marriage and has thus
undercut the parents’ efforts to inculcate their children with their own
and Wirthlins by notifying parents about any LGBT-related materials and allowing opt outs
from discussions of LGBT people and their families).
322. By the time the Wirthlins became involved in the case, the chance for negotiated
resolution seemed to have evaporated. See Aiello, Memo Links Mass. Couple, supra note 95
(According to Superintendent Paul Ash, “‘the Wirthlins and Parkers had no intention of
coming to a compromise . . . they wanted a public fight. I only saw political campaigns and
323. See supra note 82 and accompanying text.
324. See supra notes 84, 103–04 and accompanying text.
808 95 IOWA LAW REVIEW 
opposing religious views.”325 If the First Circuit accurately summarized the
essence of the plaintiffs’ concern, one can imagine a number of ways
mediation might have allowed the parties to discuss that concern. For
example, in mediation the defendants might have been able to explain to
the plaintiffs the ways in which teachers would lead discussion of the
materials, to insure that no child would be compelled to express any specific
view of families led by same-sex couples. In addition, the parties might have
negotiated a set of best practices for teachers326 if contrary religious views
arose in the course of class discussion. Finally, teachers, administrators, and
parents might have talked about the costs and benefits of the sort of opt-out
system proposed by the plaintiffs.327
As noted above, Russell Korobkin has suggested that an apology can
sometimes help to debias parties who suffer from fundamental attribution
error.328 But the parties in conflicts between gay rights and religious liberty
are unlikely to apologize for the actions that are causing harm. Unlike a
typical tort or contract case in which a harm-doer might admit a mistake or
misstep but would then want to disclaim it as indicative of his or her
character, each side in a conflict between gay rights and religious liberty
probably believes that it is doing the right thing. To repudiate the action at
issue would betray a core value or element of the disputant’s identity.
Although David Parker publically acknowledged elements of the dispute that
he might have mismanaged, it is unlikely that he apologized for any of his
demands giving rise to the dispute. Similarly, Lexington officials likely did
not apologize for the ways they supported the schools’ diversity curriculum.
Instead, a final intervention suggested by Korobkin may have held
greater promise. He suggests that mediators might ameliorate the effects of
the attribution bias through caucus:
[The mediator can] provide an account of the events that is
consistent with the observed outcome but attributes a more
situationally-dependent motivation for the adversary’s actions . . .
not to convince the party that his adversary is an innocent victim of
situational constraints beyond all means of control. . . . [but to]
325. Parker v. Hurley, 514 F.3d 87, 105 (1st Cir. 2008), cert. denied, 129 S. Ct. 56 (2008).
326. For an excellent guide to such negotiations, see generally LAWRENCE E. SUSSKIND &
JEFFREY L. CRUIKSHANK, BREAKING ROBERT’S RULES: THE NEW WAY TO RUN YOUR MEETING,
BUILD CONSENSUS, AND GET RESULTS (2006) (outlining a consensus building approach to multi-
327. The school might have given parents notice, before and after the fact, but no right to
opt out. This would have allowed parents to talk to their kids about any lessons or interactions
at school related to homosexuality, and also mitigated defendants’ concerns about damage to
kids being raised by same-sex couples if they see classmates leaving the room every time
homosexuality is mentioned.
328. See supra note 221 and accompanying text.
undermine the party’s certainty that his level of anger and
accompanying malevolent feelings are fully justified.329
If the mediator had explored the possibility that the school officials’
actions were not motivated by a desire to wrest control from parents or
denigrate the parents’ religious views, but were instead born of a desire to
support children being raised by LGBT parents, the plaintiffs might have felt
less under siege. Correspondingly, if the mediator had raised the possibility
that the plaintiffs’ demands were less about homophobia than a strong
desire to oversee and control their children’s moral upbringing, the school
officials might have felt less pressure to protect LGBT couples and their
children. Such debiasing would not lead directly to settlement, of course,
but it might have helped relieve some of the tension surrounding the
2. Using Self-Affirmation and Pre-Existing Salience
of Values to Reduce Threats to Identity
As the work of Geoffrey Cohen and his coauthors suggests, parties in
conflict show increased receptivity to information and arguments counter to
their beliefs when they are also affirmed for characteristics important to
them but independent of the dispute.330 This is particularly true of those for
whom an aspect of identity relevant to the dispute is salient.331 How might
this insight assist a mediator in a case like Parker? A mediator might explore
the larger set of values that animate the parties’ lives—not just the values at
stake in the dispute. With this richer understanding of the parties, the
mediator might look for ways to reinforce and affirm each disputant’s whole
value system. So, for example, suppose David Parker were to say that in
addition to standing up for his faith (the element of his identity at stake in
the mediation), he also strives for creativity in his writing, compassion in
volunteer activities, or kindness and consideration when interacting with his
aging relatives. Suppose further that the mediator were able to aid in
Parker’s self-affirmation by encouraging him to think of an instance in
which his actions displayed one of those independent strengths or skills.
Estabrook Principal Joni Jay or Lexington Superintendent of Schools Paul
Ash could go through the same exercise with the mediator, and Cohen’s
work would suggest that each party, having had an important character trait
affirmed, might be more receptive to the other side’s perspective.
329. Korobkin, supra note 207, at 307–08 (citation omitted).
330. See supra notes 238–53 and accompanying text (detailing how a mediator can increase
parties’ receptivity to adverse arguments by having them think about an important personal
331. Cohen et al., supra note 227, at 426.
810 95 IOWA LAW REVIEW 
3. Emphasizing the Ongoing Relationship
and Reducing Collateral Damage
Mediation, much more than litigation, could allow the parties to reduce
the collateral damage flowing from their conflict by focusing on the children
involved and forging agreements that would keep the conflict away from the
eyes and ears of children.332 In the spring of 2006, David Parker’s child was
harassed and bullied on the school playground by a group of children.333
Parker alleged that adults incited the children.334 The school investigated; it
even requested an independent inquiry by Lexington police.335 The school
determined that the incident—while a violation of school rules for which the
central perpetrator was punished—did not fall outside the bounds of
ordinary playground disputes.336 In response, David Parker posted on his
blog a statement that included the following point:
I acknowledge there is hurt in the community; my family has
deeply felt the pain for over a year. I do accept that I should have
talked the incident over with the parents of the “perpetrating”
child before further external discussion so that they completely
understood our concerns. I am grieved to them for my oversight. I
acted from the contemplation of the hurt my son and family has
Take a step back and look deeply within yourselves. What have
you said about these issues in the presence of children? What was
your tone? The demeanor of children can be influenced powerfully
by adults. How will they act this out? How will they influence other
Parker’s questions suggest that he was concerned about the effect of the
dispute on children at Estabrook Elementary School. Presumably, the
teachers and administrators named as defendants in the case shared this
concern. A mediator might have emphasized this shared interest to motivate
332. Allegedly, news reports of the conflict were posted on a central bulletin board near the
Estabrook school’s front office, where children could see them. In addition, school officials
allegedly referred to the dispute in classrooms and on flyers that children took home to their
parents. MassResistance, Followng [sic] David Parker’s Arrest, http://www.massresistance.org/
docs/parker/hurley_statements.html (last visited Feb. 28, 2010).
333. Posting of David Parker to David Parker Blog, Stepping Back, http://www.davidparker
fund.org/html/2006/08/stepping-back.html (Aug. 9, 2006, 10:00 EST) (reflecting on the
incident one month later).
335. Press Release, Paul B. Ash, Superintendent of Lexington Schs. (June 16, 2006),
available at http://www.lexingtoncares.org/PressReleaseAsh2006-06-16.html.
336. Id.; Press Release, Paul B. Ash, Superintendent of Lexington Schs. (June 19, 2006),
available at http://www.lexingtoncares.org/PressReleaseAsh2006-06-19.html.
337. David Parker Blog, supra note 333.
some initial procedural agreements that would protect the children, and
then use those initial agreements as a foundation for a larger resolution of
To promote a successful future relationship, a mediator could have
helped the Parkers, the Wirthlins, and Estabrook Elementary School avoid
creating common knowledge pertinent to the dispute. When parties in
conflict know that they must continue to interact in the future, they might
keep some information closer to the vest to avoid creating common
knowledge.338 As Ian Ayres and Barry Nalebuff argue, in some situations,
parties can more easily reach agreement when certain facts, even if known
or suspected by both parties, remain unspoken.339
In the Parker case, common knowledge may have formed over the life of
the dispute in ways that made resolution increasingly difficult. It is possible
that one or both of the parties might have been correct when it attributed
certain attitudes or motivations to the other side. It really might have been,
for example, that the Principal of Estabrook Elementary School felt nothing
but contempt for the Parkers’ and Wirthlins’ beliefs. She would have known
that, and the Parkers and Wirthlins might have suspected it, but she would
not have known that the Parkers and Wirthlins suspected it. If she had
learned that the Parkers and Wirthlins suspected her contempt, or if the
Parkers and Wirthlins had learned that the Principal knew of their
suspicions, the negotiations could have suffered. It is not just her contempt,
but also the parties’ shared knowledge about that contempt, that would have
impeded their conversations. Under such circumstances, it would not have
been possible for the parties truthfully to disabuse each other of the fears
each might harbor about the other’s attitude. The mediator could have used
caucus to explore how much of the negative attribution was actually in error
and how much of it was an accurate perception of the other side’s feelings.
To the extent that the fears and negativity could have been dispelled
through conversation in joint session, the mediator could have brought the
parties together to build this shared understanding. But to the extent that
joint session could have created common knowledge that would have
impeded the parties’ efforts to cooperate for the good of the children, the
mediator might have worked with the parties prior to the joint session to
build a respectful basis for dialogue that avoided philosophies or world views
and which focused instead on concrete actions.
338. See generally Ian Ayres & Barry J. Nalebuff, Common Knowledge as a Barrier to Negotiation,
44 UCLA L. REV. 1631 (1997) (discussing various theories for why competing parties would
want to avoid creating common knowledge during negotiations and providing several examples
to illustrate those theories).
339. See generally id. (suggesting that in situations where disputing parties should avoid
creating common knowledge during negotiations, the use of a disinterested mediator would
more efficiently settle the issue).
812 95 IOWA LAW REVIEW 
4. Dovetailing Interests
Both Estabrook Elementary School and the Parkers had shared interests
that mediation could have addressed. Both parties had an interest in
controlling the escalating costs of litigation—not only monetary costs, but
damage to relationships as well. According to David Parker, his family
“deeply felt the pain” of his conflict with the school and no longer felt
respected or welcome in Lexington.340 Parker also seemed willing to
acknowledge at least one of the school’s key interests. In an e-mail to the
school district on the very day his son brought home the Diversity Book Bag,
Parker stated: “[T]here are rights that need to be protected for the gay
community, however; the ‘out of the closet’ into the kindergarten classroom
mentality will not do justice to this cause and frankly—it just isn’t necessary
at this impressionable age.”341
Parker’s acknowledgement of the gay community’s interest in certain
rights and protections may have represented at least a starting point for
further discussions. Indeed, according to his lawyer, Jeffrey Denner, Parker
is a “thoughtful, caring person.”342 Even though Parker believed that
marriage between people of the same sex is wrong, he felt that people
should be free to choose it.343 Parker did not initially appear to be a willing
poster boy for groups opposed to gay rights,344 nor did he seem to be the
rigid ideologue that many proponents of gay rights probably imagined him
to be. As the case progressed, however, he felt increasingly provoked. To
resolve the dispute, he has said, the parties would have had to go “way
beyond simple discourse.”345 Instead, he wanted respectful listening:
“[W]hat would have to happen, would be for someone like myself to be put
in a forum, with free speech, free discourse, with the other side willing to
listen. I [would have been] willing to do it.”346
B. STARTZELL, PHILLY PRIDE, AND THE CITY
Of the three paradigmatic cases, Startzell is the weakest candidate for
mediation. In the many cases that have involved the Startzell plaintiff
protesters, they have never applied for a permit to organize their own
340. David Parker Blog, supra note 333; Tania Ralli, David Parker, At Odds with His
Community, BOSTON GLOBE, Dec. 22, 2005, available at http://www.boston.com/news/
341. E-mail from David and Tonia Parker, to Joni Jay, Principal, Estabrook Sch., supra note
342. Telephone Interview with Jeffrey Denner, Partner, Denner Pellegrino, LLP (Mar. 4,
344. According to his lawyer, Parker has deliberately avoided aligning himself with some of
the more extreme organizations opposed to gay rights. Id.
345. Telephone Interview with David Parker, supra note 115.
346. Id. It is not clear how reciprocal Parker imagined this listening to be.
expressive event. This suggests that one of the interests expressed by Michael
Marcavage—to see events like OutFest come to an end and to hasten their
end through disruption347—may be as strong as the interest in preaching
the gospel to new audiences. If disruption becomes an end in itself, a
bargaining zone between the preacher-protesters, the City, and LGBT event
organizers is probably nonexistent.
If we suppose for the sake of discussion, however, that the Startzell
plaintiffs sincerely wished to communicate with festival goers and had an
interest in prolonged (rather than brief but maximally disruptive) protest,
we might begin to see some potential for mediation. Cases with even greater
passion and contentiousness have been successfully mediated in the past. In
1977, neo-Nazi protesters wished to march in Skokie, Illinois, where many
Holocaust survivors lived.348 The Village of Skokie feared that violence
would result if the march went forward.349 Days before the planned
demonstration, U.S. Community Relations Service mediators persuaded the
group to conduct its rally at a free-speech plaza in Chicago.350 If a march by
neo-Nazis could be the subject of mediation, surely we might then ask
whether the City of Philadelphia could have facilitated a meeting with Philly
Pride and the preacher-protesters prior to the OutFest event.
Jeremy Frey, lawyer for Philly Pride, is skeptical that the parties could
have mediated their dispute. If the groups involved were clearly defined, he
says, there might have been “options for negotiation ahead of time.”351 But
“if one or both parties are too loosely defined,” such negotiation may be
difficult.352 The fact that Philly Pride asked the City ahead of time to bar a
particular group of protesters from entering OutFest, however, suggests that
the groups on each side were sufficiently well defined to fuel a specific
request for exclusion—and thus, perhaps, to permit negotiation.
Granted, if Michael Marcavage, Mark Diener, and the other nine
preacher-protesters had agreed with the City and Philly Pride to confine
their activities to certain locations or modes of communication, their
agreement could not have prevented other groups or individuals from
coming to disrupt the festival. Perhaps this inability to bind all potential
protesters would have reduced Philly Pride’s incentive to negotiate.
Nonetheless, if Philly Pride and Repent America could have been persuaded
to meet with the City, perhaps with a map of the festival site displayed before
them, the parties might have discussed where the plaintiffs would be
347. See supra note 156 and accompanying text (demonstrating Marcavage’s intentions
toward events like OutFest).
348. David G. Dalin, Jews, Nazis, and Civil Liberties, 80 AM. JEWISH Y.B. 3, 4 (1980).
349. Id. at 6.
350. Richard A. Salem, Mediating Political and Social Conflicts: The Skokie–Nazi Dispute, 5
MEDIATION Q. 65, 72 (1984).
351. Telephone Interview with Jeremy Frey, supra note 185.
814 95 IOWA LAW REVIEW 
permitted to preach, giving them access to the audience that they most
hoped to reach without drowning out speakers and performers or blocking
access to display booths. But a preventative meeting of this sort did not
occur. The City waited to assume a meditative role until the day of the
festival, which, from a dispute-resolution perspective, was an unnecessary
delay. Arguably, as soon as Philly Pride submitted a written request to
exclude the plaintiffs from OutFest, the conflict was “ripe” for mediation.
And if such mediation had occurred, what might the parties have
discussed? As an initial matter, they might have explored their interests. In
its request to the city, Philly Pride explained that it had multiple interests:
“[P]reventing anti-LGBT protestors from entering the permitted
area during the OutFest block party will protect all persons and will
minimize the City’s exposure in the unfortunate event of any incidents
related to the protestors. It will also uphold Philly Pride’s constitutional
right to control its message of LGBT pride and equality.”353
The preacher-protesters, for their part, also had multiple interests. First,
they wished to express their religious message to the people who attended
OutFest. As Jeremy Frey perceived it, “the plaintiffs’ whole purpose was to
market their ideas to [the participants in OutFest]”; essentially they said, “I
need to express my ideas to you.”354 Second, the protesters had an interest in
seeing OutFest cease to operate. A newspaper article appearing shortly
before the event quoted plaintiff Michael Marcavage as saying, “‘We’ll
evangelize at OutFest, as long as these types of events continue. But it’s our
hope that OutFest will come to an end.’”355 The difficulty, of course, is that
while it might be possible to reconcile Philly Pride’s interest in expressing a
gay-affirmative message with plaintiff Marcavage’s interest in expressing a
religious message that disapproves of homosexuality, the plaintiffs’ second
interest—seeing OutFest come to an end—cannot be reconciled with Philly
Pride’s interest in seeing the event succeed.
The plaintiffs alleged that “Philly Pride defendants and the municipal
defendants conspired to direct plaintiffs’ movement inside the event.”356 But
the court found that vendor complaints, rather than requests from Philly
353. Startzell v. City of Phila., No. 05-05287, 2007 WL 172400, at *2 (E.D. Pa. Jan. 18, 2007),
aff’d, 533 F.3d 183 (3rd Cir. 2008) (quoting Daniel Anders, pro bono legal counsel for Philly
Pride) (emphasis added). Philly Pride supported its proposal by mentioning a reduction in the
City’s “exposure in the unfortunate event of any incidents related to the protesters,” an interest
that was more the City’s than Philly Pride’s. Id. Although it is not unusual for a negotiator to
blend his own interests with another party’s to suggest that they are aligned and mutually served
by the course of action being proposed, it remains the case that Philly Pride’s primary interests
were safety and freedom of expression.
354. Telephone Interview with Jeremy Frey, supra note 185.
355. Timothy Cwiek, Protesters to Attend OutFest, PHILA. GAY NEWS, Oct. 8, 2004 (quoting
356. Startzell, 2007 WL 172400, at *19.
Pride organizers, led the police to order the plaintiffs to move from the
location they had chosen for preaching.357 The court thus found a lack of
coordination between the City and the festival organizers.358 What might
have happened if greater coordination had occurred—coordination that
included the protesters? Arrangements that would have otherwise been
vulnerable to attack as prior restraints might have gained legitimacy if all
affected parties had agreed to them ex ante.
World Wide Street Preachers Fellowship v. Reed,359 a case distinguished by the
Startzell court, suggests ways in which Philly Pride and Repent America might
have collaborated in this case. In World Wide Street Preachers Fellowship, the
court determined that “street preachers’ presence in an area (albeit part of
the permitted area) where festival events were not taking place was not
interfering with the festival.”360 Therefore, the City could not prevent the
street preachers from attempting to engage attendees as they entered the
festival, nor could the City restrict the street preachers’ right to speak within
the space covered by the permit (but not in use). Perhaps the Philly Pride
permit area contained some space that was similarly unused (such as the
space near “Woody’s” bar to which the police were attempting to direct the
plaintiffs at the time they were arrested).361
Examining the thread of street-preacher cases as they are compared and
contrasted by subsequent courts begins to reveal the ongoing relationship
between the police, LGBT event organizers, and the group of street
preacher-protesters involved in Startzell. Michael Marcavage, for example, is
a recurring figure in this line of cases. Indeed, the World Wide Street Preachers
Fellowship court distinguished its case, where the protesters won, from an
earlier case ruling for the government, Diener v. Reed362—involving the same
Mark Diener who traded words with a transgendered person as emotions
rose in Startzell.363
Perhaps it is naïve to think that such repeat players would have
cooperated in mediation with LGBT-rights organizations. After all, these are
experienced and fervent evangelists who had practiced civil disobedience in
357. Id. at *18–19.
359. World Wide St. Preachers’ Fellowship v. Reed, 430 F. Supp. 2d 411 (M.D. Pa. 2006).
360. Id. at 415.
361. Alternatively, the preacher-protesters could have set up outside the permitting area,
avoiding any claim by event organizers that the evangelizing was interfering with the permittee’s
message. See Schwitzgebel v. City of Strongsville, 898 F. Supp. 1208, 1218 (N.D. Ohio 1995)
(stating that the plaintiffs could communicate their message on the adjoining sidewalk to the
event that was held on a public-commons area).
362. Diener v. Reed, 232 F. Supp. 2d 362, 380 (M.D. Pa. 2002), aff’d, 77 F. App’x 601 (3d
Cir. 2003) (nonprecedential).
363. The Diener case includes a description of seven LGBT-related events at which preacher-
protesters conflicted with police and/or event organizers due to the allegedly disruptive nature
of the preachers’ activities. Diener, 232 F. Supp. 2d at 371–75.
816 95 IOWA LAW REVIEW 
a persistent effort to communicate their faith to others. But even fervent
evangelists can be sensitive to the strength of their best alternative to a
negotiated agreement (“BATNA”),364 and a protester’s BATNA in a case like
this is difficult to calculate with accuracy before the fact. As Jeremy Frey
acknowledges, adjudicated outcomes in cases of this sort are extremely “fact
specific”: “does it matter if the protesters leaflet, wear T-shirts, sing, use
bullhorns, does it matter how many people sing, how many people protest,
whether they do these things while dispersed throughout the permitted area
or in a concentrated group?”365 The answer, says Frey, is that all of these
factual details do matter, and will determine the balance of protection
between protesters and permit holders.366 If the protesters had seen the
specific festival or parade setting to be like the one in World Wide Street
Preachers Fellowship, where the court found that the City unconstitutionally
excluded street preachers from a permitted but unused area, the protesters
may have been unwilling to negotiate, and may have instead preferred to
appear on the day of the event to occupy and use whatever space they might
have found. If instead the protesters saw the situation to be more like Diener,
in which the court allowed the City and event organizers to exclude the
protesters from the event altogether, the street preachers might have been
amenable to discussions that would have limited their activities but
nonetheless would have provided some access to event goers within the
In Startzell, the district court concluded after the fact that “there was no
area within OutFest for the plaintiffs to stand and peacefully express their
contrary message.”367 It seems, then, that the physical layout and space
constraints of OutFest might have justified the City in granting Philly Pride’s
request to exclude the plaintiffs from OutFest altogether. But because other
cases have concluded, under different circumstances, that the preacher-
protesters must be given access, sometimes within permitted areas when
space allows, the city’s uncertainty before the fact was reasonable. Because
the City, the event organizers, and the preacher-protesters must continue to
deal with each other in this state of uncertainty, each may have some
incentive to negotiate before future events transpire.368
364. See generally FISHER, URY & PATTON, supra note 33 (defining BATNA and discussing
successful negotiating techniques).
365. Telephone Interview with Jeremy Frey, supra note 185.
367. Startzell v. City of Phila., No. 05-05287, 2007 WL 172400, at *11 (E.D. Pa. Jan. 18,
368. See James Andreoni & Ray D. Madoff, The Role of Judicial Discretion in Dispute Settlement
(Boston Coll. Law Sch. Faculty Papers, Working Paper No. 216, 2008), available at http://lsr.
nellco.org/bc_lsfp/216 (finding higher settlement rates when the litigation alternative includes
judicial discretion than when adjudication will require an all-or-nothing result, and concluding
that the condition involving discretion reduces the parties’ over-confidence bias).
Andrew Koppelman argues that in our efforts to strike the balance
between religious liberty and LGBT rights, it is important not to silence or
closet either viewpoint:
We need to keep talking about it. The conversation is not always a
pleasant experience. And it is fragile. It will shut down if either side
uses its power to coerce the other to shut up. Gay people have been
for a long time, and sometimes still are, subjected to just this kind
But even Koppelman acknowledges that greater intervention will
occasionally be necessary to prevent “an abuse of power” or to protect “an
unusually vulnerable audience.”370 Koppelman is correct that government
generally should not silence either viewpoint and that specific cases may
arise requiring governmental intervention. The purpose of this Article is to
explore a different form for governmental intervention in such matters.
Perhaps the problem lies in our assumption that government intervention
necessarily entails litigation, and that the result of such litigation must be the
silencing or closeting of one or both parties. The very essence of mediation,
in contrast, is talk, but talk that occurs within the safety of a private,
confidential session in which the mediator stands ready to intervene if either
party becomes abusive or intimidated.
This Article argues that peacemaking is possible in the “culture war”
between gay rights and religious liberty. Constitutional rights and status
need not be a zero-sum game.371 As same-sex couples come out of the closet
and into the full rights, responsibilities, and community respect of marriage,
the state need not and should not demand that people who object to same-
sex marriage on religious grounds be quiet and closet their objection into
purely private spheres. The much vaunted “train wreck” may be prevented if
the tracks can be curved toward a shared and respectful debate within civil
society. Trains running on parallel tracks do not collide.
This is, however, a constitutional moment that calls for extreme
empathy and common cause, of a sort, between LGBT-equality advocates
and religious objectors. To be sure, these groups must acknowledge and
manage some important differences. Fundamental beliefs about the
interpretation and role of sacred scripture in public life, the meaning of
369. Koppelman, You Can’t Hurry Love, supra note 53, at 145.
370. Id. at 143.
371. Cf. J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2320 (1997) (“[M]any of
the struggles that define America’s ‘culture wars’ . . . are really battles over social status and
818 95 IOWA LAW REVIEW 
gender,372 and the essential structure of families are, for these groups, very
different. But the truth is that these differences have engaged other groups
and fueled other public-policy issues over the span of constitutional history.
Society has found ways to allow robust public debate and deliberation—
balancing constitutional claims, social values, and religious faith—even as
In this particular moment of legal change, more and better progress
will occur by focusing on the commonalities of potentially conflicting groups
rather than their differences. Each group—LGBT individuals and religious
objectors to LGBT rights—is a minority in this country.373 Each, in its own
way, is out of step with prevailing culture. Each is prone to hear, “what you
do in your own home/house of worship is fine; just don’t flaunt it or impose
it on the public forum.” This Article explores whether, and to what extent,
these shared experiences and perspectives can create some common ground
for resolution in a particular species of disputes.
This does not mean that objectors to marriage for same-sex couples will
always get their way. While they will be free to say that the law permitting
same-sex couples to marry is wrong, they will not always be able to act as if
this is not the law. Nor will proponents of marriage for same-sex couples
always be pleased with the sort of collaboration that this Article suggests. As
gay-rights advocates frequently assert, the struggle is not just about a bundle
of rights; it is also about full citizenship, public acknowledgment, and
respect for individuals, couples, and their families. It can be painful, even
infuriating, to hear the voices of people who do not accept homosexuality or
respect same-sex couples and their families.
Meanwhile, American eyes are trained on a small but growing number
of states in which same-sex couples now have the right to marry.374 People
on all sides of the marriage debate are watching to see how, if at all, the
extension of full marriage rights to same-sex couples will affect these states.
Few are neutral in their scrutiny. Opponents of same-sex marriage argue
that Massachusetts has expanded the rights of same-sex couples and
372. See David B. Cruz, Disestablishing Sex and Gender, 90 CAL. L. REV. 999, 999 (2002)
(commenting that “gender ideologies” and religious ideologies attribute “social dividing
practices” to nature or god in violation of constitutional principles).
373. Press Release, Copernicus Mktg. Consulting, Religious Liberalism Rising Faster than
Fundamentalism in U.S. According to New Analysis from Copernicus (Oct. 17, 2005), available
at http://www.copernicusmarketing.com/about/religion%20study.shtml (noting that
fundamentalists comprise thirty percent of the U.S. population, based on an analysis of data
from the University of Chicago’s National Opinion Research Center).
374. As this Article goes to press, that group includes Connecticut, Iowa, Massachusetts,
New Hampshire, and Vermont. Act of Mar. 26, 2009, ch. 59, 2009 N.H. Laws 1 (effective Jan. 1,
2010) (codified as N.H. REV. STAT. ANN. §§ 457, 100-A:2-b); 2009 Vt. Acts & Resolves No. 3 (S.
115) (effective Sept. 1, 2009) (codified as VT. REV. STAT. ANN. tit. 15 §§ 1a, 4, 8, 1202(2) & tit.
18, § 5131(a)); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Comm’r of Pub.
Health, 957 A.2d 407 (Conn. 2008); Goodridge v. Dep’t of Pub. Health, 440 Mass. 309 (Mass.
correspondingly contracted the rights of religious objectors. Proponents of
marriage for same-sex couples argue that in the years since Goodridge
established full marriage equality in Massachusetts, “the sky hasn’t fallen”375
and life proceeds normally in Massachusetts. To keep the sky from falling,
parties in conflict must hold it up—together. In some cases, mediation is our
best hope for accomplishing this.
375. EVAN WOLFSON, WHY MARRIAGE MATTERS: AMERICA, EQUALITY, AND GAY PEOPLE’S
RIGHT TO MARRY 57 (2004); Garrow, supra note 270.