John Culhane is continuing a series of posts this week on religious liberty and gay marriage. (See here, here, and here) The posts have been very informative and lively. In today's post, he takes the view that there is no need for special religious-liberty exemptions in SSM but offers an especially creative and interesting alternative. The core of the proposal is this:
Why not simply remind the [religious] objectors -- I'd support a law spelling this out -- that they have a right to clearly state that they oppose same-sex unions and would "prefer to step aside" (borrowing and repurposing language from Professor Wilson here) for religious reasons. There might even be standard, respectful language suggested (not mandated, but perhaps bulletproof), making clear that the proprietor's objection is based on religion, not animosity. What same-sex couple wouldn't respect that, and go somewhere else -- if they could?
If they couldn't -- the dreaded one-florist town! -- the couple could, under my proposal: (1) forego flowers (gasp!); (2) if botanically feasible, order some from out-of-town, or (3) fail to respect the wishes of the religiously objecting florist and use their services anyway. Wilson et al. would achieve that result through a "hardship exception" (only in a wedding-obsessed culture could the possibility of having no flowers at a wedding be thought of as a "hardship," by the way), but then we might find ourselves litigating the issue of hardship. "We had a hardship." "No, you didn't." Please, stop. Let's not invent laws we hardly need.
Let's be clear what we're talking about here: a situation in which a gay married couple or a gay couple about to get married seeks some good or service as a couple and is refused that good or service on the grounds that the provider objects to gay marriage (not gay people) for religious reasons. The gay couple nevertheless wants to force the transaction by seeking some legal remedy under a state antidiscrimination law that (a) applies to the transaction and (b) is not already subject to an exemption for religious objectors. I have found no reported cases so far in which all these conditions were present. But that doesn't mean they won't ever happen. It is for dealing with such cases that we are seeing proposals for special religious-liberty exemptions that apply to the provision of goods or services related to a gay marriage or to the status of being in a gay marriage.
Culhane's proposal for dealing with what seems likely to be a very rare confrontation will not please purists on either side, who really want maximum cultural conflict over this issue. On the pro-SSM side, some will insist that allowing a florist to put up a "no gay couples" sign is repugnant, even if the florist in fact is required not to discriminate. To them it would be akin to inviting Ollie's BBQ to put up a sign saying "no colored folks — but the law requires us to serve you anyway." On the anti-SSM side, some will insist that the signs are just window-dressing, provide no legal protection, and may expose business owners to even more litigation by advertising their aversion to gay marriage.
But if, as I suspect, (1) gay couples will generally not want to work with business owners who make it plain that they object to same-sex marriages, and (2) only the most sincerely and deeply religious objectors would put up such a sign, the number of religious-liberty legal confrontations over SSM ceremonies should be reduced.
The potential difficulty with Culhane's proposal is that it might be too clever and subtle to work politically. How do you sell the idea that a business owner has a right to put up a sign but no right to act on the message in the sign?
An alternative would be to include a specific religious-liberty exemption in SSM laws but require the sign display ("no gay couples") as a condition of being protected by the exemption. This should also reduce litigation, for the same reasons discussed above. Only the serious culture warriors will force the issue. I suppose there might be a First Amendment objection to requiring the sign display as a condition for getting the protection of the exemption. But since the exemption itself is not constitutionally required, that would be a complicated and doubtful claim.
I'm open to either alternative in principle, since in my view there is very little legal or experiential justification for special religious-liberty carve-outs in laws authorizing SSM, but some accommodation may be necessary politically to assuage SSM moderates in state legislatures and in referenda.