In Fall 2011, the Undergraduate Fellows enrolled in the Law, Religion, and Liberty of Conscience Seminar interviewed experts about the role of conscience in American life, law and politics. Below are some of their responses to the students' sixth question:
Is the expansion of civil marriage to include same-sex couples a hindrance to religious liberty? If so, do religious-based conscience exemptions mitigate the harm?
Richard W. Garnett:
The expansion of civil marriage to include same-sex couples is not, by itself, a burden on religious liberty, but this expansion will almost certainly come with other regulatory and legal changes that could threaten religious freedom. These threats could, I think, be mitigated by reasonable accommodations for religion-based objections to same-sex marriage.
Thomas Berg:
It might be a hindrance to religious liberty. Although everyone seems to agree that no clergy member or church can be forced to perform or recognize a marriage, there are other situations in which religious organizations and individuals would be hampered in their ability to follow their beliefs in the world by having to facilitate directly marriages they believe are wrong. The adoption agency directly performing adoptions with same-sex couples, the religious college having to open its married student housing to a same-sex couple, etc. I believe it's quite possible to mitigate these harms with religious-conscience exemptions, and that this is the way to make room for both sides to live out their fundamental identities in society. There is actually quite a bit in common between the claims of same-sex couples and religious objectors. To tell same-sex couples that they can have an orientation but can't live a life of full, intimate commitment to another, acknowledged by society, consistent with that orientation, is to tell them to stay in the closet. But to tell religious objectors that they can have a a belief but can't act consistently with that belief when they go into the world providing education or other services is likewise to tell them to go into the closet.
Ira “Chip” Lupu:
The expansion of marriage is only a hindrance to religious liberty if faith communities or clergy are forced to extend sacraments/blessings to marriages which they think are undeserving of the sacraments. (That could be for any reason—e.g., interfaith marriages as much as same-sex marriages.) Other than for faith communities and clergy, I don't think any such exemptions should exist.
Steven D. Smith:
The legal recognition of same-sex marriage potentially poses a serious threat to religious liberty; how great the threat is would depend upon other things, such as application of antidiscrimination laws, possible withdrawal of tax exempt status, etc. In principle, exemptions can mitigate the harm.
Douglas Laycock:
The expansion of legal marriage to include same-sex couples is not in itself a hindrance to religious liberty. It becomes a threat to religious liberty when combined with laws against discrimination on the basis of sexual orientation or marital status and the widespread failure on both sides to distinguish religious marriage from legal marriage. Religious exemptions can indeed mitigate the harm.
Ian C. Bartrum
I don’t think so. I think the idea that same-sex marriage hurts religion is based on the failure to adequately separate the institutions of civil and religious marriage. They are two different things, and I think that the claim that just the use of the generic term “marriage” to refer to homosexual relationships somehow harms the religious version of the institution doesn’t quite succeed.
Mark R. Wicclair
The principle of religious liberty does not justify imposing legal restrictions based on a particular religion that limit the freedom of people from other religious backgrounds or non-believers. For example, the religious liberty of Catholics does not justify restricting the freedom of non-Catholics by limiting them to Catholic-approved marriages. Moreover, legally prohibiting same sex marriage exclusively on religious grounds would violate the Establishment Clause.
Caroline Mala Corbin
No. If your religion opposes same-sex marriage, then marry someone of a different sex. Likewise, if your religion opposes contraception, then don’t use it. What reproductive or marriage choices I make do not affect your religious liberty.
Alan Brownstein
Many civil rights laws, including the expansion of civil marriage to include same-sex couples, will have some impact on the religious liberty of some individuals and institutions. Religious-based conscience exemptions can mitigate this harm considerably. Determining how religious liberty interests can be reconciled with the liberty and equality interests of same-sex couples requires a careful analysis.
Richard W. Garnett:
The expansion of civil marriage to include same-sex couples is not, by itself, a burden on religious liberty, but this expansion will almost certainly come with other regulatory and legal changes that could threaten religious freedom. These threats could, I think, be mitigated by reasonable accommodations for religion-based objections to same-sex marriage.
Thomas Berg:
It might be a hindrance to religious liberty. Although everyone seems to agree that no clergy member or church can be forced to perform or recognize a marriage, there are other situations in which religious organizations and individuals would be hampered in their ability to follow their beliefs in the world by having to facilitate directly marriages they believe are wrong. The adoption agency directly performing adoptions with same-sex couples, the religious college having to open its married student housing to a same-sex couple, etc. I believe it's quite possible to mitigate these harms with religious-conscience exemptions, and that this is the way to make room for both sides to live out their fundamental identities in society. There is actually quite a bit in common between the claims of same-sex couples and religious objectors. To tell same-sex couples that they can have an orientation but can't live a life of full, intimate commitment to another, acknowledged by society, consistent with that orientation, is to tell them to stay in the closet. But to tell religious objectors that they can have a a belief but can't act consistently with that belief when they go into the world providing education or other services is likewise to tell them to go into the closet.
Ira “Chip” Lupu:
The expansion of marriage is only a hindrance to religious liberty if faith communities or clergy are forced to extend sacraments/blessings to marriages which they think are undeserving of the sacraments. (That could be for any reason—e.g., interfaith marriages as much as same-sex marriages.) Other than for faith communities and clergy, I don't think any such exemptions should exist.
Steven D. Smith:
The legal recognition of same-sex marriage potentially poses a serious threat to religious liberty; how great the threat is would depend upon other things, such as application of antidiscrimination laws, possible withdrawal of tax exempt status, etc. In principle, exemptions can mitigate the harm.
Douglas Laycock:
The expansion of legal marriage to include same-sex couples is not in itself a hindrance to religious liberty. It becomes a threat to religious liberty when combined with laws against discrimination on the basis of sexual orientation or marital status and the widespread failure on both sides to distinguish religious marriage from legal marriage. Religious exemptions can indeed mitigate the harm.
Ian C. Bartrum
I don’t think so. I think the idea that same-sex marriage hurts religion is based on the failure to adequately separate the institutions of civil and religious marriage. They are two different things, and I think that the claim that just the use of the generic term “marriage” to refer to homosexual relationships somehow harms the religious version of the institution doesn’t quite succeed.
Mark R. Wicclair
The principle of religious liberty does not justify imposing legal restrictions based on a particular religion that limit the freedom of people from other religious backgrounds or non-believers. For example, the religious liberty of Catholics does not justify restricting the freedom of non-Catholics by limiting them to Catholic-approved marriages. Moreover, legally prohibiting same sex marriage exclusively on religious grounds would violate the Establishment Clause.
Caroline Mala Corbin
No. If your religion opposes same-sex marriage, then marry someone of a different sex. Likewise, if your religion opposes contraception, then don’t use it. What reproductive or marriage choices I make do not affect your religious liberty.
Alan Brownstein
Many civil rights laws, including the expansion of civil marriage to include same-sex couples, will have some impact on the religious liberty of some individuals and institutions. Religious-based conscience exemptions can mitigate this harm considerably. Determining how religious liberty interests can be reconciled with the liberty and equality interests of same-sex couples requires a careful analysis.
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