Question 7: Undermining Equality

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' seventh question:
Can equal rights be considered truly equal if individuals are allowed to undermine them by refusing services or the acknowledgment of them? For example, does the state granting the right to gay marriage make any difference if individuals refuse (lawfully) to recognize it? Do religious/conscientious rights or civil rights get preference when they necessarily conflict?

Thomas Berg:

Perhaps not perfectly equal. But that would show, for starters, a problem with equality as a social norm: it tends not to be amenable to balancing tests that can take into account other important values. As your questions suggestions, many people on the gay rights side claim that equality allows no exceptions because being a little bit equal is like being a little bit pregnant. By contrast, it would be possible to approach the conflicts between marriage recognition and religious liberty by looking at the comparative hardships on each side and setting rules to balance them appropriately—for example, accommodating religious objectors when it would be easy for couples to find alternative service providers. That would give both sides considerable protection from the concrete harms of (i) having trouble finding services and, on the other side, (ii) being forced by the state either to violate one's beliefs or to exit a profession or area of service. But as your question suggests, this balance will not be possible if we define the interest on the couple's side as equal treatment in every situation. That interest, by definition, admits of no exceptions. (By the way, both sides in the dispute invoke ‘civil rights’!)

Ira “Chip” Lupu:

The state must treat persons with equal respect. So the state should recognize same-sex marriage (it has no legitimate secular reason not to do so). But other citizens are entitled to their own views of which marriages deserve respect—perhaps people who divorce and remarry many times forfeit that respect for that marriage.

There is no a priori rule for resolving conflicts between civil rights and religious rights. One always needs to more about the respective rights and the reasons for conflict.

Richard S. Meyers:

I guess I’d say it’s important to take a broad perspective on this. Don’t privilege one side of the argument—equal rights v. religious liberty. Take a careful look at what is at stake. Do “refusals” really undermine equal rights? If a nurse is not forced to assist with an abortion will that interfere with access to an abortion if there is another nurse available. And remember that “rights” (constitutional rights at least) are typically against the government. To say someone has a right to an abortion typically only means that the state can’t prevent that choice it doesn’t mean that that person has the “right” to force private actors to perform or assist with the act or to force people to pay for the exercise of that choice.

Marc O. DeGirolami:

The state should not be in the business of compelling anybody to think or believe anything. If you are asking whether agents of the state can refuse to perform functions that the state recognizes to be legitimate, my answer is no. For example, a justice of the peace should not be permitted to refuse to perform gay marriages in a state where such marriages are recognized. More difficult questions involve the ability of state licensees to object on conscientious grounds, or private businesses.

Of course rights matter, and are equal, even when the rights of conscientious objectors are also recognized … it matters enormously, for all sorts of legal purposes, whether a couple is married or not married, and those consequences are unaffected by whether the church on the corner also recognizes the marriage.

Douglas Laycock

Constitutional rights are generally protected against the state, not against other individuals. And when rights are protected by sub-constitutional law against other individuals, then the rights of all individuals have to be considered. A well ordered society does not override deeply held claims of conscience without extraordinary reason, because it inflicts substantial emotional suffering when it does so (and sometimes economic or physical suffering as well, if the objector adheres to conscience and abandons his business or suffers the penalties that the law inflicts). A couple’s right to be married can be fully effectuated, and make an enormous improvement in their lives, without threatening this kind of suffering to every one of their neighbors who has a different view of marriage.

If the number of objectors is so large that the effectual right to be married is threatened in fact, then the balance of interests changes. But mostly this fight is about symbolic values, and the desire of each side to impose its values on the other. American constitutional liberty is based on live and let live, and tolerance of difference. Both sides in the same-sex marriage battle need to respect that. Right now, neither side does.

Ian C. Bartrum:

I think it depends who is refusing to recognize the rights. If state actors (like town clerks) are refusing to recognize same-sex marriages (for example) then I do think the right is undermined. I’m not sure it’s quite as clear when private actors do this.

Robert Vischer:

It depends whether so many providers refuse to offer the services that the individual lacks access to the service. “Equal rights” should, in a morally pluralistic society, primarily refer to the rights we hold vis-à-vis the government, not vis-à-vis other private individuals and organizations. If the government recognizes the right to same-sex marriage, the government can legitimately require its agents to provide the service to everyone—i.e., I don’t favor rights of conscience for justices of the peace. That does not mean that a church needs to be coerced into providing the same service in order for the right to marry to be ‘equal’ in any sense that should matter in a free and diverse society.

Mark R. Wicclair

Claims of conscience based on invidious discrimination should not be accommodated. In this respect, civil rights trump rights of conscience.

Caroline Mala Corbin

I think that the clergy of various denominations should be able to insist that they will marry only those people who follow the tenets of their faith. But if they are employers, or offering public accommodations, or especially if they are public servants, then civil rights should generally trump.

Alan Brownstein

It is hard to summarize my position, but let me make two basic points.

I think that religious liberty and the right of same-sex couples to marry share a common constitutional and normative foundation: a commitment to personal autonomy, authenticity in conduct, and relational responsibilities. Thus, in some sense, these two rights can mutually reinforce each other.

Second, I think the most persuasive and useful model for determining when religious accommodation claims relating to same-sex marriage should be granted is the model we use to determine when religious individuals and institutions should be permitted to discriminate against people of different religions or people who are not religious. That is, the starting place for evaluating any proposed religious exemption from civil rights laws protecting same-sex couples from discrimination would be to ask whether a similar exemption would be granted to a religious individual or institution seeking the right to discriminate on the basis of religion in providing benefits, goods, or services to others.

Richard W. Garnett

Religious freedom is a basic and foundational human right, and so it should only be burdened by governments if it is absolutely necessary to do so, in the service of a compelling state interest. "Equal protection of the laws" is a constraint on government, but a commitment to "equal protection of the laws" does not entail a belief that individuals should not be able to form and act on the basis of moral and religious judgments. In the "refusing services" cases, the answer is probably "it depends.” There is no need to require, say, a wedding photographer who objects, for religious reasons, to same-sex marriage to nevertheless agree to photograph a same-sex wedding ceremony. On the other hand, a clerk or official working for the government in a state that has legalized same-sex marriage could not refuse to do his or her job—say, by filling out relevant paperwork—on the grounds that he or she opposes same-sex marriage.

M. Cathleen Kaveny

I think there can be some accommodation in smaller households and settings. I think the strongest harm comes when government agents (i.e., those who work in state marriage license bureaus) refuse to represent the state.

Steven D. Smith

I think it's a mistake to suppose—as most everyone does—that anything is gained or resolved in these contexts by invoking the idea of equality. Everyone should read (several times, if necessary) Peter Westen's famous article, “The Empty Idea of Equality.” I would think it might make a huge difference for many purposes if the state recognizes same-sex marriage, even though some individuals might decline to recognize this.

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