Response From Religious-Liberty Scholars Supporting a “Marriage Conscience” Exemption

Last week I wrote about the response of a group of us (Andy Koppelman, Doug NeJaime, Ira Lupu, William Marshall, and me) to calls for broad religious-liberty exemptions in laws authorizing same-sex marriage.  Specifically in the context of the proposed marriage bill in Illinois, which has since passed, we argued that the proposals from several religious-liberty scholars urged for several years now in state legislatures around the country are, in short, overblown and overdrawn.  It is the first time a group of scholars has formally and publicly responded to what some legislators might have thought was a solid scholarly consensus behind the idea that same-sex marriage creates a distinct crisis for religious liberty.

Several of the scholars favoring broad exemptions have now replied to our critcisms in the form of a blog post at Mirror of Justice, the Catholic legal blog, although the group is not limited to Catholic opponents of same-sex marriage.  The replying scholars are Tom Berg, Carl Esbeck, Edward Gaffney, Rick Garnett, Doug Laycock, Bruce Ledewitz, Christopher Lund, Michael Perry, and Robin Fretwell Wilson. Some of the differences between the two groups of scholars seem to involve a venue question of whether marriage laws — as opposed to antidiscrimination laws — are the appropriate place for clarifying existing religious-liberty protections.  Some of the differences are deeper, involving what should be recognized as an appropriate religious-conscience exemption from generally applicable antidiscrimination laws.  In any event, I recommend that readers interested in this dispute among legal scholars about religious liberty and same-sex marriage read this latest installment from those who favor broad exemptions.