In debates over same-sex marriage, much attention has recently been given to religious-liberty concerns. For example, the award-winning ad campaign to pass Prop 8 in California focused heavily on how SSM might erode the liberty of religious objectors.
For reasons I gave here almost a year ago, I'm not convinced that gay marriage adds much to the pre-existing confrontation between religious traditionalists and antidiscrimination laws protecting gays. That's not to say that there aren't legitimate religious-freedom concerns with antidiscrimination law. There are some egregious cases, especially in the context of providing personal and non-essential services (see, e.g., the already infamous New Mexico proceeding against a photograhper who refused to shoot a same-sex "commitment" ceremony). It's only to say those concerns don't arise from SSM. After five years in Massachusetts, a state with broad antidiscrimination laws, the evidence for religious repression attributable to SSM is scant.
The most that can be said uncontroversially is that formal state recognition of gay relationships will help increase acceptance of gays over time, which might indirectly influence the content and application of antidiscrimination law (more expansive laws, less generous exemptions).
On the other hand, the debate over same-sex marriage itself might help sensitize us to possible conflicts. When gay marriage is accomplished legislatively, at least, it's more likely that the core interests of gay families and religious traditionalists will be represented and some accommodation can be found. There is evidence of that in the recent gay-marriage bill from Vermont, which included what even prominent opponents of gay marriage called substantive (but to them, insufficient) religious-liberty protection.
Likewise, the Connecticut legislature is considering a bill to bring the state's marriage statute in line with the state supreme court's decision last year in Kerrigan v. Comm'r of Pub. Health, which mandated that the state allow same-sex couples to marry. Five respected academics, in two separate letters (here and here), are urging the legislature to include a provision broadly protecting religious traditionalists against potential discrimination claims by married gay couples and possible denial of various benefits by the state. (HT: Mirror of Justice, a Catholic legal blog.) Here is the text of their proposed "marriage conscience protection":
No individual and no religious corporation, entity, association, educational institution, or society shall be penalized or denied benefits under the laws of this state or any subdivision of this state, including but not limited to laws regarding employment discrimination, housing, public accommodations, licensing, government grants or contracts, or tax-exempt status, for refusing to provide services, accommodations, advantages, facilities, goods, or privileges related to the solemnization of any marriage, for refusing to solemnize any marriage, or for refusing to treat as valid any marriage, where such providing, solemnizing, or treating as valid would cause that individual or religious corporation, entity association, educational institution, or society to violate their sincerely held religious beliefs.
This is a sentence only a lawyer could love.
The proposal is important, both because it comes from acknowledged experts in the field of religious liberty and because it is likely to be endorsed in some version by even more academics and other advocates. My guess is that something like it will be introduced every time a same-sex marriage bill is considered. And even though I don't agree with the authors on the extent or seriousness of the underlying problem ("widespread and devastating effects" on religious liberty), or their proposal in all its applications, it stimulates exactly the kind of concrete discussion we should be having.
If addressing religious-liberty concerns facilitates and hastens the passage of SSM laws without sacrificing any substantial rights of gay families, that's a plus for SSM advocates. But first I'd want to hear from experts in antidiscrimination law about the possible effects. I'd also have lots of questions about the proposal. The four that occur to me right away are these:
(1) Would its application to "any individual" include government employees acting in their capacity as government employees and providing benefits and services to married same-sex couples? If so, I assume this would mean that a state employee could refuse to issue a marriage license to a same-sex couple, refuse to participate in any way in giving benefits under state law available to married same-sex couples, refuse to serve as a judge in a divorce, tort, or any other proceeding implicating their marital status, and so on. Is that right?
(2) Could "an individual" who continually harrasses or discriminates against a co-worker or subordinate on religious grounds be disciplined (reassigned, fired, demoted) by his employer attempting to comply with the state's employment antidiscrimination law? Or would that be a "penalty" imposed "under the laws" of the state?
(3) Would the exemption affect any claim of sexual-orientation discrimination under state law that a person would have had independent of the recognition of the person's same-sex marriage? For example, would it allow a religious employer or landlord otherwise covered by a law forbidding sexual orientation discrimination to discriminate against a gay person (by excluding the person from a job or an apartment) once that person marries a same-sex partner? I assume the intent is to allow religious objectors to discriminate solely on the grounds of the marital status of a person in a same-sex marriage but not on the grounds of the person's sexual orientation. Connecticut already has religious exemptions in its sexual-orientation non-discrimination laws, and the authors say this proposal is "modeled" on such exemptions. But as I think they'd acknowledge, it is broader than Connecticut's exemptions in several ways.
(4) Would the exemption protect those who objected on religious grounds to other marriages, e.g., interracial marriages, interreligious marriages, and second marriages following divorce? The text is broad enough to encompass any sincere religious objection to any marriage, but its adoption and placement in a bill meant to authorize same-sex marriages might lead to a narrower construction.
These questions are addressed initially to the authors, but not exclusively to them. Their understanding won't control the interpretation of the statute they draft.
One can imagine many more questions about the proposal. How do we know when a belief is "religious" rather than a deeply help moral or philosophical one? How do we know when a religious belief is "sincere" as a opposed to pretextual? (In this regard, it's easier to imagine an individual crafting his supposed religious beliefs to fit the exemption in response to a lawsuit than it would be to imagine a religious business or association credibly doing so.) Do we want courts deciding when a person's religious beliefs have been "violated" rather than been made less comfortable? But while these are good questions, for the most part they do not seem particular to this proposal. They're endemic in religious liberty law and protection.
Finally, I'd be interested in the reaction to this proposal from readers, both supporters and opponents of SSM.
If a you're a supporter of SSM, could you live with this proposal, especially if it made the passage of SSM bills more likely and more likely to be soon? Would you support any special religious-liberty protection in the context of an SSM bill?
If you're an opponent of SSM, and although you may continue to oppose SSM on other grounds, would it at least satisfy any religious-liberty concerns you might have? If not, would any proposal be sufficient to satisfy your religious-liberty concerns?
UPDATE: It appears the Connecticut legislature has passed its marriage bill, with significant protection for religious liberty included. An anti-SSM activist in Connecticut calls the provision "a significant improvement" of "a bad bill" because it lets groups like the Knights of Columbus refuse to rent halls for gay weddings. I'm waiting to get the exact text.
Related Posts (on one page):
- Religious liberty and SSM, continued:
- A response from four more law professors
- "Religious conscience" protections in Connecticut:
- Professor Laycock responds
- Protecting religious liberty from gay marriage and protecting gay marriage from religious liberty: